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As filed with the Securities and Exchange Commission on June 24, 2016

Registration No. 333-210674

SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

Amendment No. 3
to

FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933

AdvancePierre Foods Holdings, Inc.
(Exact name of registrant as specified in its charter)

Delaware
(State or other jurisdiction of
incorporation or organization) 2000
(Primary Standard Industrial
Classification Code Number) 26-3712208
(I.R.S. Employer
Identification Number)

9987 Carver Road
Blue Ash, Ohio 45242
(800) 969-2747
(Address, including zip code, and telephone number, including area code, of registrant's principal executive offices)

Michael B. Sims
Executive Vice President and Chief Financial Officer
9987 Carver Road
Blue Ash, Ohio 45242
(800) 969-2747
(Name, address, including zip code, and telephone number, including area code, of agent for service)

With copies to:
Gregg A. Noel, Esq. Jeffrey H. Cohen, Esq. Jonathan Ko, Esq. Skadden, Arps, Slate, Meagher & Flom LLP 300 South Grand Avenue, Suite 3400 Los Angeles, California 90071 (213) 687-5000	Robert Evans III, Esq. Merritt Johnson, Esq. Shearman & Sterling LLP 599 Lexington Avenue New York, New York 10022-6069 (212) 848-4000

Approximate date of commencement of proposed sale to the public:
As soon as practicable after this Registration Statement becomes effective.

          If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box:    o

          If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.    o

          If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.    o

          If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.    o

          Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of "large accelerated filer," "accelerated filer" and "smaller reporting company" in Rule 12b-2 of the Exchange Act.

Large accelerated filer o Accelerated filer o Non-accelerated filer ý
(Do not check if a
smaller reporting company) Smaller reporting company o

CALCULATION OF REGISTRATION FEE

Title of each class of securities to be registered	Proposed maximum aggregate offering price(1)(2)	Amount of registration fee(3)
Common stock, par value $0.01 per share	$100,000,000	$10,070

(1)

Includes offering price of shares of common stock that the underwriters have the option to purchase. See "Underwriting."

(2)

Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(o) under the Securities Act of 1933, as amended.

(3)

Previously paid.

The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.

EXPLANATORY NOTE

        This Amendment No. 3 to the Registration Statement on Form S-1 (File No. 333-210674) of AdvancePierre Foods Holdings, Inc. is being filed solely for the purpose of filing certain exhibits as indicated in Item 16 of Part II of this Amendment No. 3. This Amendment No. 3 does not modify any provision of the prospectus constituting Part I of the Registration Statement or Items 13 through 15 or 17 of Part II of the Registration Statement. Accordingly, the preliminary prospectus constituting Part I of the Registration Statement and Items 13 through 15 and 17 of Part II of the Registration Statement have been omitted.

PART II
INFORMATION NOT REQUIRED IN PROSPECTUS

Item 16.    Exhibits and Financial Statement Schedules.

        (a)   Exhibits. See the Exhibit Index immediately following the signature page hereto, which is incorporated by reference as if fully set forth herein.

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Amendment No. 3 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Cincinnati, Ohio, on June 24, 2016.

ADVANCEPIERRE FOODS HOLDINGS, INC.
By:	/s/ MICHAEL SIMS
	Name:	Michael Sims
	Title:	Chief Financial Officer, Executive Vice President, Treasurer and Secretary

        Pursuant to the requirements of the Securities Act of 1933, this Amendment No. 3 to the Registration Statement has been signed by the following persons in the capacities indicated on June 24, 2016.

Signature	Capacity
* John N. Simons, Jr.	Chief Executive Officer and President; Director (Principal Executive Officer)
/s/ MICHAEL SIMS Michael Sims	Chief Financial Officer, Executive Vice President, Treasurer and Secretary (Principal Financial and Accounting Officer)
* Margaret M. Cannella	Director
* Celeste A. Clark, Ph.D.	Director
* Peter C. Dillingham	Director
* Dean Hollis	Chairman of the Board
* Stephen A. Kaplan	Director

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Signature		Capacity
* Gary Perlin		Director
* Matthew C. Wilson		Director
*By:	/s/ MICHAEL SIMS Michael Sims Attorney-in-Fact

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EXHIBIT INDEX

Exhibit			Description
	1.1	**	Form of Underwriting Agreement
	3.1	#	Certificate of Incorporation of the Registrant (as previously filed with Amendment No. 1 to this Registration Statement on May 27, 2016)
	3.2	#	Certificate of Amendment to the Certificate of Incorporation of the Registrant (as previously filed with Amendment No. 2 to this Registration Statement on June 15, 2016)
	3.3	#	Bylaws of the Registrant (as previously filed with Amendment No. 1 to this Registration Statement on May 27, 2016)
	3.4	#	Form of Amended and Restated Certificate of Incorporation of the Registrant (as previously filed with Amendment No. 2 to this Registration Statement on June 15, 2016)
	3.5	#	Form of Amended and Restated Bylaws of the Registrant (as previously filed with Amendment No. 2 to this Registration Statement on June 15, 2016)
	5.1	**	Opinion of Skadden, Arps, Slate, Meagher & Flom LLP
	10.1	**	Form of Amended and Restated Registration Rights Agreement by and among the Registrant and the other parties named therein
	10.2	**	Form of Stockholders Agreement by and among the Registrant and the other parties named therein
	10.3	**	Form of Indemnification Agreement by and between the Registrant and each of its directors and executive officers
	10.4	**	Form of Income Tax Receivable Agreement by and among the Registrant and the other parties named therein
	10.5	**	Term Loan Credit Agreement, dated as of June 2, 2016, among AdvancePierre Foods Holdings, Inc., Pierre Holdco, Inc., AdvancePierre Foods, Inc., the lenders party thereto from time to time and Morgan Stanley Senior Funding, Inc., as administrative agent and security agent.
	10.6	**	Amendment No. 3 to Second Amended and Restated Credit Agreement, dated as of June 2, 2016, among AdvancePierre Foods, Inc., the lenders party thereto from time to time and Wells Fargo Capital Finance,  LLC, as administrative agent.
	10.7	#	Employment Agreement entered into and effective as of September 30, 2013 by and between John Simons and AdvancePierre Foods, Inc. (as previously filed with Amendment No. 2 to this Registration Statement on June 15, 2016)
	10.8	#	Employment Agreement entered into on February 2, 2012 and effective as of February 28, 2012 by and between Michael Sims and AdvancePierre Foods, Inc. (as previously filed with Amendment No. 2 to this Registration Statement on June 15, 2016)
	10.9	#	Employment Agreement entered into and effective as of March 9, 2015 by and between Anthony Schroder and AdvancePierre Foods, Inc. (as previously filed with Amendment No. 2 to this Registration Statement on June 15, 2016)
	10.10	#	Employment Agreement entered into on June 18, 2013 and effective as of July 8, 2013 by and between James Clough and AdvancePierre Foods, Inc. (as previously filed with Amendment No. 2 to this Registration Statement on June 15, 2016)

II-4

Exhibit			Description
	10.11	#	Relocation Repayment Agreement entered into and effective as of October 14, 2014 by and between James Clough and AdvancePierre Foods, Inc. (as previously filed with Amendment No. 2 to this Registration Statement on June 15, 2016)
	10.12	**	Amendment No. 1 to Employment Agreement entered into by and between James Clough and AdvancePierre Foods, Inc., effective March 24, 2016
	10.13	**	Employment Agreement entered into on December 23, 2013 and effective as of January 20, 2013 by and between George Chappelle and AdvancePierre Foods, Inc.
	10.14	**	Employment Agreement entered into and effective as of November 4, 2013 by and between Thomas Lavan and AdvancePierre Foods, Inc.
	10.15	**	Release and Separation Agreement entered into and effective as of October 8, 2015 by and between Thomas Lavan and AdvancePierre Foods, Inc.
	10.16	#	Pierre Foods Holding Corporation 2009 Omnibus Equity Incentive Plan (as previously filed with Amendment No. 2 to this Registration Statement on June 15, 2016)
	10.17	#	Amendment No. 1 to Pierre Foods Holding Corporation 2009 Omnibus Equity Incentive Plan, effective as of January 23, 2014 (as previously filed with Amendment No. 2 to this Registration Statement on June 15, 2016)
	10.18	**	Form of Amendment No. 2 to Pierre Foods Holding Corporation 2009 Omnibus Equity Incentive Plan
	10.19	**	Form of Pierre Foods Holding Corporation 2009 Omnibus Equity Incentive Plan Restricted Share Award Agreement
	10.20	#	AdvancePierre Foods, Inc. Special Enhanced Severance Plan (as previously filed with Amendment No. 2 to this Registration Statement on June 15, 2016)
	10.21	**	Form of AdvancePierre Foods, Inc. 2016 Executive Severance Plan
	10.22	**	AdvancePierre Foods, Inc. 401(k) Retirement Plan, amended and restated effective as of January 1, 2012
	10.23	#	Amendment for the Final 415 Regulations to AdvancePierre Foods, Inc. 401(k) Retirement Plan, effective as of July 1, 2007 (as previously filed with Amendment No. 2 to this Registration Statement on June 15, 2016)
	10.24	#	Amendment for EACA and/or QACA Provisions to AdvancePierre Foods, Inc. 401(k) Retirement Plan, dated January 9, 2012 (as previously filed with Amendment No. 2 to this Registration Statement on June 15, 2016)
	10.25	#	Amendment for HEART and WRERA to AdvancePierre Foods, Inc. 401(k) Retirement Plan, dated January 9, 2012 (as previously filed with Amendment No. 2 to this Registration Statement on June 15, 2016)
	10.26	#	Amendment for the Pension Protection Act and HEART Act to AdvancePierre Foods, Inc. 401(k) Retirement Plan, dated January 9, 2012 (as previously filed with Amendment No. 2 to this Registration Statement on June 15, 2016)
	10.27	**	Amendment No. 1 to AdvancePierre Foods, Inc. 401(k) Retirement Plan, effective as of October 1, 2012
	10.28	**	Amendment No. 2 to AdvancePierre Foods, Inc. 401(k) Retirement Plan, effective as of January 1, 2014

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Exhibit			Description
	21.1	#	List of Subsidiaries (as previously filed with the initial filing of this Registration Statement on April 11, 2016)
	23.1	#	Consent of PricewaterhouseCoopers LLP (as previously filed with the initial filing, Amendment No. 1 and Amendment No. 2 to this Registration Statement on April 11, 2016, May 27, 2016 and June 15, 2016, respectively)
	23.2	**	Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in Exhibit 5.1)
	24.1	#	Power of Attorney (included on signature page to initial filing of this Registration Statement on April 11, 2016)

**

Filed herewith

#

Previously filed

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EXPLANATORY NOTE
PART II INFORMATION NOT REQUIRED IN PROSPECTUS

Item 16. Exhibits and Financial Statement Schedules.

SIGNATURES
EXHIBIT INDEX

EX-1.1

Exhibit 1.1

[·]

AdvancePierre Foods Holdings, Inc.

Common Stock, par value $0.01 per share

UNDERWRITING AGREEMENT

[·], 2016

BARCLAYS CAPITAL INC.

CREDIT SUISSE SECURITIES (USA) LLC

MORGAN STANLEY & CO. LLC

As Representatives of the several

Underwriters named in Schedule I attached hereto,

c/o Barclays Capital Inc.

745 Seventh Avenue

New York, New York 10019

Ladies and Gentlemen:

AdvancePierre Foods Holdings, Inc., a Delaware corporation (the “Company”), and certain stockholders of the Company named in Schedule II attached hereto (the “Selling Stockholders”), propose to sell an aggregate of [·] shares (the “Firm Stock”) of the Company’s common stock, par value $0.01 per share (the “Common Stock”).  Of the [·] shares of the Firm Stock, [·] are being sold by the Company and [·] are being sold by the Selling Stockholders.  In addition, the Selling Stockholders propose to grant to the underwriters named in Schedule I (the “Underwriters”) attached to this agreement (this “Agreement”) options to purchase up to an aggregate of [·] additional shares of the Common Stock on the terms set forth in Section 3 (the “Option Stock”).  The Firm Stock and the Option Stock, if purchased, are hereinafter collectively called the “Stock”.  This Agreement is to confirm the agreement concerning the purchase of the Stock from the Company and the Selling Stockholders by the Underwriters.

1.Representations, Warranties and Agreements of the Company.  The Company represents, warrants and agrees that:

(a)A registration statement on Form S-1 (File No. 333-210674) relating to the Stock (i) has been prepared by the Company in conformity with the requirements of the Securities Act of 1933, as amended (the “Securities Act”), and the rules and regulations of the Securities and Exchange Commission (the “Commission”) thereunder; (ii) has been filed with the Commission under the Securities Act; and (iii) has become effective under the Securities Act.  Copies of such registration statement and any amendment thereto have been delivered by the Company to you as the representatives (the “Representatives”) of the Underwriters.  As used in this Agreement:

(i)“Applicable Time” means [·] [A.M.][P.M.] (New York City time) on [·], 2016;

(ii)“Effective Date” means the date and time at which such registration statement, or the most recent post-effective amendment thereto, was declared effective by the Commission;

(iii)“Issuer Free Writing Prospectus” means each “issuer free writing prospectus” (as defined in Rule 433 under the Securities Act);

(iv)“Preliminary Prospectus” means any preliminary prospectus relating to the Stock included in such registration statement or filed with the Commission pursuant to Rule 424(b) under the Securities Act;

(v)“Pricing Disclosure Package” means, as of the Applicable Time, the most recent Preliminary Prospectus, together with [the information included in Schedule [IV] hereto and] each Issuer Free Writing Prospectus filed or used by the Company at or before the Applicable Time, other than a road show that is an Issuer Free Writing Prospectus but is not required to be filed under Rule 433 under the Securities Act;

(vi)“Prospectus” means the final prospectus relating to the Stock, as filed with the Commission pursuant to Rule 424(b) under the Securities Act; and

(vii)“Registration Statement” means the registration statement on Form S-1 (File No. 333-210674) relating to the Stock, as amended as of the Effective Date, including any Preliminary Prospectus or the Prospectus, all exhibits to such registration statement and including the information deemed by virtue of Rule 430A under the Securities Act to be part of such registration statement as of the Effective Date.

Any reference to the “most recent Preliminary Prospectus” shall be deemed to refer to the latest Preliminary Prospectus included in the Registration Statement or filed pursuant to Rule 424(b) under the Securities Act prior to or on the date hereof.  The Commission has not issued any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending the effectiveness of the Registration Statement, and no proceeding or examination for such purpose has been instituted or threatened by the Commission.

(b)The Company was not at the time of initial filing of the Registration Statement and at the earliest time thereafter that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Securities Act) of the Stock, is not on the date hereof and will not be on the applicable Delivery Date, an “ineligible issuer” (as defined in Rule 405 under the Securities Act).

(c)The Registration Statement conformed and will conform in all material respects on the Effective Date and on the applicable Delivery Date, and any amendment to the Registration Statement filed after the date hereof will conform in all material respects when filed, to the requirements of the Securities Act and the rules and regulations thereunder.  The most recent Preliminary Prospectus conformed, and the Prospectus will conform, in all material respects when filed with the Commission pursuant to Rule 424(b) under the Securities Act and

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on the applicable Delivery Date to the requirements of the Securities Act and the rules and regulations thereunder.

(d)The Registration Statement did not, as of the Effective Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided that no representation or warranty is made as to information contained in or omitted from the Registration Statement in reliance upon and in conformity with written information furnished to the Company through the Representatives by or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 10(f).

(e)The Prospectus will not, as of its date or as of the applicable Delivery Date, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that no representation or warranty is made as to information contained in or omitted from the Prospectus in reliance upon and in conformity with written information furnished to the Company through the Representatives by or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 10(f).

(f)The Pricing Disclosure Package did not, as of the Applicable Time, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that no representation or warranty is made as to information contained in or omitted from the Pricing Disclosure Package in reliance upon and in conformity with written information furnished to the Company through the Representatives by or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 10(f).

(g)Each Issuer Free Writing Prospectus listed in Schedule [V] hereto, when taken together with the Pricing Disclosure Package, did not, as of the Applicable Time, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that no representation or warranty is made as to information contained in or omitted from such Issuer Free Writing Prospectus listed in Schedule [V] hereto in reliance upon and in conformity with written information furnished to the Company through the Representatives by or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 10(f).

(h)Each Issuer Free Writing Prospectus conformed or will conform in all material respects to the requirements of the Securities Act and the rules and regulations thereunder on the date of first use, and the Company has complied with all prospectus delivery and any filing requirements applicable to such Issuer Free Writing Prospectus pursuant to the Securities Act and rules and regulations thereunder.  The Company has not made any offer relating to the Stock that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Representatives.  The Company has retained in accordance with the Securities Act and the rules and regulations thereunder all Issuer Free Writing Prospectuses that were not required to be filed pursuant to the Securities Act and the rules and regulations thereunder.  The Company has taken all actions necessary so that any “road show” (as defined in Rule 433 under the Securities Act) in

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connection with the offering of the Stock will not be required to be filed pursuant to the Securities Act and the rules and regulations thereunder.

(i)The Company and each of its subsidiaries have been duly organized or formed, are validly existing and in good standing as a corporation or other business entity under the laws of their respective jurisdictions of organization and are duly qualified to do business and in good standing as a foreign corporation or other business entity in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification, except where the failure to be so qualified or in good standing could not, in the aggregate, reasonably be expected to have a material adverse effect on the condition (financial or otherwise), results of operations, stockholders’ equity, properties, business or prospects of the Company and its subsidiaries taken as a whole (a “Material Adverse Effect”).  The Company and each of its subsidiaries have all power and authority necessary to own or hold each of their respective properties and to conduct their respective businesses in which each is engaged as described in the Pricing Disclosure Package.  The Company does not own or control, directly or indirectly, any corporation, association or other entity other than the subsidiaries listed on Schedule [VII] hereto.

(j)The Company has the authorized capitalization set forth in each of the most recent Preliminary Prospectus and the Prospectus under the heading “Capitalization”, and all of the issued shares of capital stock of the Company (including the Stock to be sold by Selling Stockholders to the Underwriters) have been duly authorized and validly issued, are fully paid and non-assessable, conform in all material respects to the description thereof contained in the most recent Preliminary Prospectus and were issued in compliance with federal and state securities laws and not in violation of any preemptive right, resale right, right of first refusal or similar right.  No options, warrants or other rights to purchase or exchange any securities for shares of the Company’s capital stock are outstanding. All of the issued shares of capital stock or other ownership interest of each subsidiary of the Company have been duly authorized and validly issued, are fully paid and non-assessable and are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims, except for such liens, encumbrances, equities or claims as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or as are disclosed in the most recent Preliminary Prospectus.

(k)The shares of the Stock to be issued and sold by the Company to the Underwriters hereunder have been duly authorized and, upon payment and delivery in accordance with this Agreement, will be validly issued, fully paid and non-assessable, will conform in all material respects to the description thereof contained in the most recent Preliminary Prospectus, will be issued in compliance with federal and state securities laws and will be free of statutory and contractual preemptive rights, rights of first refusal and similar rights.  The shares of Stock to be sold by the Selling Stockholders will be sold in compliance with federal and state securities laws.

(l)The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under (i) this Agreement, (ii) the income tax receivable agreement (the “Tax Receivable Agreement”) between the Company and OCM FIE, LLC, a Delaware limited liability company, (iii) the registration rights agreement (the “Registration Rights Agreement”) between the Company, OCM APFH Holdings, LLC, a Delaware limited liability

4

company, OCM Principal Opportunities Fund IV Delaware, L.P., a Delaware limited partnership, and the other parties named therein, and (iv) the stockholder agreement (the “Stockholder Agreement”) between the Company, OCM APFH Holdings, LLC, a Delaware limited liability company, and OCM Principal Opportunities Fund IV Delaware, L.P., a Delaware limited partnership (collectively, the documents in clauses (i) through (iv), the “Transaction Documents”).

(m)This Agreement has been duly and validly authorized, executed and delivered by the Company.

(n)Each of the Tax Receivable Agreement, the Registration Rights Agreement and Stockholder Agreement, when duly executed and delivered in accordance with its respective terms by when duly executed and delivered in accordance with its respective terms by each of the parties thereto, will constitute a valid and legally binding agreement of the Company enforceable against it in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally or by equitable principles relating to enforceability.

(o)Each Transaction Document conforms in all material respects to the descriptions thereof contained in each of the most recent Preliminary Prospectus and the Prospectus.

(p)The issuance and sale of the Stock, the execution, delivery and performance of this Agreement and the other Transaction Documents by the Company, the consummation of the transactions contemplated hereby and thereby and the application of the proceeds from the sale of the Stock as described under “Use of Proceeds” in the most recent Preliminary Prospectus will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, impose any lien, charge or encumbrance upon any property or assets of the Company and its subsidiaries, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, license, lease or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject; (ii) result in any violation of the provisions of the amended and restated certificate of incorporation and amended and restated bylaws of the Company or charter or by-laws (or similar organizational documents) of any of the Company’s subsidiaries; or (iii) result in any violation of any statute or any judgment, order, decree, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties or assets, except, with respect to clauses (i) and (iii), conflicts, breaches, violations liens, charges, encumbrances or defaults that would not reasonably be expected to have a Material Adverse Effect.

(q)No consent, approval, authorization or order of, or filing, registration or qualification with, any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties or assets is required for the issuance and sale of the Stock, the execution, delivery and performance of this Agreement or the other Transaction Documents by the Company, the consummation of the transactions contemplated hereby or thereby and the application of the proceeds from the sale of the Stock as described under “Use of Proceeds” in the most recent Preliminary Prospectus, except for the registration of

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the Stock under the Securities Act and such consents, approvals, authorizations, orders, filings, registrations or qualifications as may be required under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and applicable state securities laws and/or the bylaws and rules of the Financial Industry Regulatory Authority (“FINRA”) in connection with the purchase and sale of the Stock by the Underwriters.

(r)The historical financial statements (including the related notes and supporting schedules) included in the most recent Preliminary Prospectus comply as to form in all material respects with the requirements of Regulation S-X under the Securities Act and present fairly, in all material respects, the financial condition, results of operations and cash flows of the entities purported to be shown thereby at the dates and for the periods indicated and have been prepared in conformity with accounting principles generally accepted in the United States applied on a consistent basis throughout the periods involved.

(s)PricewaterhouseCoopers LLP (“PWC”), who have certified certain financial statements of the Company and its consolidated subsidiaries, whose report appears in the most recent Preliminary Prospectus and who have delivered the initial letter referred to in Section 9(h) hereof, are independent public accountants as required by the Securities Act and the rules and regulations thereunder.

(t)The Company and its subsidiaries maintain internal accounting controls sufficient to provide reasonable assurances regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles in the United States, including, but not limited to, internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorization, (ii) transactions are recorded as necessary to permit preparation of the Company’s financial statements in conformity with accounting principles generally accepted in the United States and to maintain accountability for its assets, (iii) access to the Company’s assets is permitted only in accordance with management’s general or specific authorization and (iv) the recorded accountability for the Company’s assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences.  As of the date of the most recent balance sheet of the Company and its consolidated subsidiaries reviewed or audited by PWC, there were no material weaknesses in the Company’s internal controls.

(u)(i) The Company and each of its subsidiaries maintain disclosure controls and procedures (as such term is defined in Rule 13a-15(e) under the Exchange Act), (ii) such disclosure controls and procedures are designed to ensure that the information is accumulated and communicated to management of the Company and its subsidiaries, including their respective principal executive officers and principal financial officers, as appropriate, and (iii) such disclosure controls and procedures are effective in all material respects to perform the functions for which they were established; provided that, this subsection does not require that the Company comply with Section 404 of the Sarbanes-Oxley Act of 2002 and the rules and regulations thereunder as of an earlier date than it would otherwise be required to so comply.

(v)Since the date of the most recent balance sheet of the Company and its consolidated subsidiaries reviewed or audited by PWC, (i) the Company has not been advised of

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or become aware of (A) any significant deficiencies in the design or operation of the internal controls of the Company and its subsidiaries that could adversely affect the ability of the Company or any of its subsidiaries to record, process, summarize and report financial data, or any material weaknesses in such internal controls, or (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the internal controls of the Company and its subsidiaries; and (ii) there have been no significant changes in such internal controls or in other factors that could significantly affect such internal controls, including any corrective actions with regard to significant deficiencies and material weaknesses.

(w)There is and has been no failure on the part of the Company or, to the knowledge of the Company after reasonable investigation, any of the Company’s directors or officers, in their capacities as such, to comply with any provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith applicable to the Company or its directors or officers.

(x)Since the date of the latest audited financial statements included in the most recent Preliminary Prospectus, neither the Company nor any of its subsidiaries has (i) sustained any material loss or material interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, (ii) except as disclosed in the most recent Preliminary Prospectus, issued or granted any securities, (iii) incurred any material liability or obligation, direct or contingent, other than liabilities and obligations that were incurred in the ordinary course of business, (iv) entered into any material transaction not in the ordinary course of business, or (v) declared or paid any dividend on its capital stock; and since such date, there has not been any change in the capital stock, partnership or limited liability interests, as applicable, or long-term debt of the Company or any of its subsidiaries or any adverse change, or any development involving a prospective adverse change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects of the Company and its subsidiaries taken as a whole, in each case except as would not reasonably be expected to have a Material Adverse Effect.

(y)The Company and each of its subsidiaries have good and marketable title in fee simple to all real property owned by them and good and marketable title to all personal property owned by them that is material to the conduct of the business of the Company and its subsidiaries, in each case free and clear of all liens, encumbrances and defects, except such liens, encumbrances and defects as are described in the most recent Preliminary Prospectus or such as do not materially affect the value of such property and do not materially interfere with the use made and proposed to be made of such property by the Company and its subsidiaries.  All assets held under lease by the Company and its subsidiaries are held by them under valid, subsisting and enforceable leases, with such exceptions as do not materially interfere with the use made and proposed to be made of such assets by the Company and its subsidiaries.

(z)The Company and each of its subsidiaries have such permits, licenses, patents, franchises, certificates of need and other approvals or authorizations of governmental or regulatory authorities (“Permits”) as are necessary under applicable law to own their properties and conduct their businesses in the manner described in the most recent Preliminary Prospectus, except for any of the foregoing that would not reasonably be expected to have a Material

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Adverse Effect.  The Company and each of its subsidiaries have fulfilled and performed all of their respective obligations with respect to the Permits, and no event has occurred that allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other impairment of the rights of the holder or any such Permits, except for any of the foregoing that would not reasonably be expected to have a Material Adverse Effect.  Neither the Company nor any of its subsidiaries has received notice of any revocation or modification of any such Permits or has any reason to believe that any such Permits will not be renewed in the ordinary course, except for such revocations or modifications or non-renewals that would not reasonably be expected to have a Material Adverse Effect.

(aa)The Company and each of its subsidiaries own or possess, or can acquire on reasonable terms, adequate rights to use all material patents, patent applications, trademarks, service marks, trade names, trademark registrations, service mark registrations, copyrights, licenses, know-how, software, systems and technology (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures) necessary for the conduct of their respective businesses and have no reason to believe that the conduct of their respective businesses will conflict with, and have not received any notice of any claim of conflict with, any such rights of others, except for such conflicts or claims of conflict that, if determined adversely to the Company or any of its subsidiaries, would not reasonably be expected to have a Material Adverse Effect.

(bb)There are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property or assets of the Company or any of its subsidiaries is the subject that would, in the aggregate, reasonably be expected to have a Material Adverse Effect or would, in the aggregate, reasonably be expected to have a material adverse effect on the performance of this Agreement or the consummation of the transactions contemplated hereby; and to the Company’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or others.

(cc)There are no contracts or other documents required to be described in the Registration Statement or the most recent Preliminary Prospectus or filed as exhibits to the Registration Statement, that are not described and filed as required.  The statements made in the most recent Preliminary Prospectus, insofar as they purport to constitute summaries of the terms of the contracts and other documents described and filed, constitute accurate summaries of the terms of such contracts and documents in all material respects.

(dd)(i) The Company and each of its subsidiaries carry, or are covered by, insurance from insurers of recognized financial responsibility in such amounts and covering such risks as is reasonably adequate for the conduct of their respective businesses and the value of their respective properties and as is customary for companies engaged in similar businesses in similar industries, (ii) all policies of insurance of the Company and its subsidiaries are in full force and effect, (iii) the Company and each of its subsidiaries are in compliance with the terms of such policies in all material respects, (iv) neither the Company nor any of its subsidiaries has received notice from any insurer or agent of such insurer that capital improvements or other expenditures are required or necessary to be made in order to continue such insurance and (v) there are no claims by the Company or any of its subsidiaries under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause,

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except in the case of clauses (ii), (iv) and (v), as would not reasonably be expected to have a Material Adverse Effect.  Neither the Company nor any of its subsidiaries has been notified in writing or has actual knowledge that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not reasonably be expected to have a Material Adverse Effect.

(ee)No relationship, direct or indirect, exists between or among the Company, on the one hand, and the directors, officers, stockholders, customers or suppliers of the Company, on the other hand, that is required to be described in the most recent Preliminary Prospectus which is not so described.

(ff)No labor disturbance by or dispute with the employees of the Company or any of its subsidiaries exists or, to the knowledge of the Company, is imminent that would reasonably be expected to have a Material Adverse Effect.

(gg)Neither the Company nor any of its subsidiaries (i) is in violation of its charter or by-laws (or similar organizational documents), (ii) is in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant, condition or other obligation contained in any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which it is a party or by which it is bound or to which any of its properties or assets is subject, (iii) is in violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over it or its property or assets or (iv) has failed to obtain any license, permit, certificate, franchise or other governmental authorization or permit necessary to the ownership of its property or to the conduct of its business, except in the case of clauses (ii), (iii) and (iv), to the extent any such conflict, breach, violation or default would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(hh)Other than as described in the most recent Preliminary Prospectus, the Company and each of its subsidiaries (i) are, and at all times prior hereto were, in compliance with all laws, regulations, ordinances, rules having the full force and effect of law, orders, judgments, decrees, permits or other legally binding requirements of any governmental authority, including without limitation any international, foreign, national, state, provincial, regional, or local authority, relating to pollution, the protection of human health or safety (as it relates to hazardous or toxic substances), the environment, or natural resources, or to use, handling, storage, manufacturing, transportation, treatment, discharge, disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”) applicable to such entity, which compliance includes, without limitation, obtaining, maintaining and complying with all permits and authorizations and approvals required by Environmental Laws to conduct their respective businesses, and (ii) have not received notice or otherwise have knowledge of any actual or alleged violation of Environmental Laws, or of any actual or potential liability for or other obligation concerning the presence, disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants, except in the case of clauses (i) and (ii) where such non-compliance, violation, liability, or other obligation would not reasonably be expected to have a Material Adverse Effect.  Except as described in the most recent Preliminary Prospectus, (x) there are no proceedings that are pending, or known to be contemplated, against the Company or

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any of its subsidiaries under Environmental Laws in which a governmental authority is also a party, other than such proceedings regarding which it is reasonably believed no monetary sanctions of $100,000 or more will be imposed, (y) the Company and its subsidiaries are not aware of any pending or proposed Environmental Laws, or liabilities or other obligations under Environmental Laws or concerning hazardous or toxic substances or wastes, pollutants or contaminants, that could reasonably be expected to have a Material Adverse Effect, and (z) neither the Company nor any of its subsidiaries anticipate material capital expenditures relating to Environmental Laws.

(ii)The Company and each of its subsidiaries have filed all federal, state, local and foreign tax returns required to be filed through the date hereof, subject to permitted extensions, and have paid all taxes due, except as would not reasonably be expected to have a Material Adverse Effect.  There is no tax deficiency that has been determined adversely to the Company or any of its subsidiaries, nor does the Company have any knowledge of any tax deficiencies that have been, or would reasonably be expected to be asserted against the Company, that would, in the aggregate, reasonably be expected to have a Material Adverse Effect.

(jj)(i) Each “employee benefit plan” (within the meaning of Section 3(3) of the Employee Retirement Security Act of 1974, as amended (“ERISA”)) for which the Company or any member of its “Controlled Group” (defined as any organization which is a member of a controlled group of corporations within the meaning of Section 414 of the Internal Revenue Code of 1986, as amended (the “Code”)) would have any liability (each a “Plan”) has been maintained in compliance with its terms and with the requirements of all applicable statutes, rules and regulations including ERISA and the Code, except for any failure to comply with such terms, statutes, rules and regulations that would not reasonably be expected to have a Material Adverse Effect; (ii) to the knowledge of the Company, no prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any Plan excluding transactions effected pursuant to a statutory or administrative exemption; (iii) to the knowledge of the Company, with respect to each Plan subject to Title IV of ERISA (A) no “reportable event” (within the meaning of Section 4043(c) of ERISA) has occurred or is reasonably expected to occur, (B) no Plan is or is reasonably expected to be “at risk” status (within the meaning of Section 430 of the Code or Section 303 of ERISA), (C) there has been no filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan or the receipt by the Company or any of its ERISA Affiliates from the PBGC or the plan administrator of any notice relating to the intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan, (D) no conditions contained in Section 303(k)(1)(A) of ERISA for imposition of a lien shall have been met with respect to any Plan and (E) neither the Company or any member of its Controlled Group has incurred, or reasonably expects to incur, any liability under Title IV of ERISA (other than contributions to the Plan or premiums to the Pension Benefit Guaranty Corporation in the ordinary course and without default) in respect of a Plan (including a “multiemployer plan”, within the meaning of Section 4001(c)(3) of ERISA) (“Multiemployer Plan”); (iv) no Multiemployer Plan is, or is expected to be, “insolvent” (within the meaning of Section 4245 of ERISA), in “reorganization” (within the meaning of Section 4241 of ERISA), or in “endangered” or “critical” status (within the meaning of Section 432 of the Code or Section 304 of ERISA); and (v) each Plan that is intended to be qualified under Section 401(a) of the Code is so qualified

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and nothing has occurred, whether by action or by failure to act, which would cause the loss of such qualification.

(kk)The statistical, market-related and industry data included in the most recent Preliminary Prospectus are based on or derived from sources that the Company believes to be reliable in all material respects.

(ll)Neither the Company nor any of its subsidiaries is, and as of the applicable Delivery Date and, after giving effect to the offer and sale of the Stock and the application of the proceeds therefrom as described under “Use of Proceeds” in the most recent Preliminary Prospectus and the Prospectus, none of them will be, (i) an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended (the “Investment Company Act”), and the rules and regulations of the Commission thereunder, or (ii) a “business development company” (as defined in Section 2(a)(48) of the Investment Company Act).

(mm)The statements set forth in each of the most recent Preliminary Prospectus and the Prospectus under the captions “Description of Capital Stock,” “United States Federal Income Tax Considerations for Non-U.S. Holders,” “Certain Relationships and Related Party Transactions—Registration Rights Agreement,” “Business—Government, Legal and Regulatory” and “Underwriting,” insofar as they purport to summarize the provisions of the laws and documents referred to therein, are accurate summaries of the provisions of such laws and documents in all material respects.

(nn)Except as described in the most recent Preliminary Prospectus, there are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the Securities Act with respect to any securities of the Company owned or to be owned by such person or to require the Company to include such securities in the securities registered pursuant to the Registration Statement or in any securities being registered pursuant to any other registration statement filed by the Company under the Securities Act.

(oo)Neither the Company nor any of its subsidiaries is a party to any contract, agreement or understanding with any person (other than this Agreement) that would give rise to a valid claim against any of them or the Underwriters for a brokerage commission, finder’s fee or like payment in connection with the offering and sale of the Stock.

(pp)The Company has not sold or issued any securities that would be integrated with the offering of the Stock contemplated by this Agreement pursuant to the Securities Act, the rules and regulations thereunder or the interpretations thereof by the Commission.

(qq)The Company and its affiliates have not taken, directly or indirectly, any action designed to constitute, or that has constituted, or that would reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company in connection with the offering of the shares of the Stock.

(rr)The Stock has been approved for listing, subject to official notice of issuance and evidence of satisfactory distribution on, The New York Stock Exchange.

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(ss)The Company has not distributed and, prior to the later to occur of any Delivery Date and completion of the distribution of the Stock, will not distribute any offering material in connection with the offering and sale of the Stock other than any Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus to which the Representatives have consented in accordance with Section 6(a)(vi).

(tt)Neither the Company nor any subsidiary has knowledge or notice from a court of competent jurisdiction or governmental agency of any violation with respect to any federal or state law relating to discrimination in the hiring, promotion or pay of employees, nor any applicable federal or state wage and hour laws, nor any state law precluding the denial of credit due to the neighborhood in which a property is situated, the violation of any of which could reasonably be expected to have a Material Adverse Effect.

(uu)Neither the Company nor any of its subsidiaries, nor, to the knowledge of the Company, any director, officer, agent, employee or other person associated with or acting on behalf of the Company or any of its subsidiaries, has in the course of its actions for, or on behalf of, the Company or any of its subsidiaries: (i) made any unlawful contribution, gift, or other unlawful expense relating to political activity; (ii) made any direct or indirect bribe, kickback, rebate, payoff, influence payment, or otherwise unlawfully provided anything of value, to any “foreign official” (as defined in the U.S. Foreign Corrupt Practices Act of 1977, as amended (collectively, the “FCPA”)) or domestic government official; or (iii) violated or is in violation of any provision of the FCPA, the Bribery Act 2010 of the United Kingdom, as amended (the “Bribery Act of 2010”) or any other applicable anti-bribery statute or regulation.  The Company and its subsidiaries and, to the knowledge of the Company, the Company’s affiliates, have conducted their respective businesses in compliance with the FCPA, the Bribery Act 2010, and all other applicable anti-bribery statutes and regulations, and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to ensure, continued compliance therewith.

(vv)The operations of the Company and its subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, that have been issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.

(ww)Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, after due inquiry, any director, officer, agent, employee or affiliate of the Company or any of its subsidiaries is: (i) currently subject to or the target of any sanctions administered or enforced by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”), the U.S. Department of State, the United Nations Security Council (“UNSC”), the European Union (“EU”), Her Majesty’s Treasury (“HMT”), or other relevant sanctions authority (collectively, “Sanctions”); or (ii) located, organized or resident in a country or territory that is the subject or target of Sanctions (including, without limitation, Cuba, Iran, North Korea, Sudan,

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Syria and Crimea); and the Company will not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person, or in any country or territory, that currently is the subject or target of Sanctions or in any other manner that will result in a violation by any person (including any person participating in the transaction whether as an underwriter, advisor, investor or otherwise) of Sanctions.  The Company and its subsidiaries have not knowingly engaged in for the past five years, are not now knowingly engaged in, and will not engage in, any dealings or transactions with any individual or entity, or in any country or territory, that at the time of the dealing or transaction, is or was the subject or target of Sanctions.

(xx)Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, in the last five years, neither the Company nor any of its subsidiaries has received any U.S. Food and Drug Administration (“FDA”) Form 483 or other notice of inspectional observations, warning letters, untitled letters, notices of non-compliance or similar written communications from the FDA, the U.S. Department of Agriculture, or any other state, federal or foreign governmental authority asserting material noncompliance with laws applicable to the manufacture, processing, storage, labeling, sale, marketing or transportation of the Company’s or its subsidiaries’ products, and to the knowledge of the Company, neither the FDA nor any other governmental authority is considering such action.

Any certificate signed by any officer of the Company and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Stock shall be deemed a representation and warranty by the Company, as to matters covered thereby, to each Underwriter.

2.Representations, Warranties and Agreements of the selling stockholders.  Each Selling Stockholder, severally and not jointly, represents, warrants and agrees that:

(a)Neither such Selling Stockholder nor any person acting on behalf of such Selling Stockholder (other than, if applicable, the Company and the Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405 under the Securities Act) relating to the Stock.

(b)Such Selling Stockholder has, and immediately prior to any Delivery Date on which such Selling Stockholder is selling shares of Stock, such Selling Stockholder will have, good and marketable title to the shares of Stock to be sold by such Selling Stockholder hereunder on such Delivery Date or a “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect thereof, free and clear of all liens, encumbrances, equities, community property rights, restrictions on transfer or claims.

(c)The Stock to be sold by such Selling Stockholder hereunder is subject to the interest of the Underwriters and the obligations of such Selling Stockholder hereunder shall not be terminated by any act of such Selling Stockholder, or the occurrence of any other event.

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(d)Upon payment for the Stock to be sold by such Selling Stockholder, delivery of such Stock, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Stock in the name of Cede or such other nominee and the crediting of such Stock on the books of DTC to securities accounts of the Underwriters (i) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Stock, and (ii) an action based on an “adverse claim,” within the meaning of Section 8-102 of the UCC, to Stock, whether framed in conversion, replevin, constructive trust, equitable lien or other theory may not be asserted against an Underwriter, with respect to such security entitlement, assuming that such Underwriter has no notice of any adverse claim (within the meaning of Section 8-105 of the UCC) with respect to such Stock.  For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (x) such Stock will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC, and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.

(e)Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.

(f)This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.

(g)The sale of the Stock by such Selling Stockholder, the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, license, lease or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of such Selling Stockholder (if such Selling Stockholder is a corporation, limited liability company, partnership or other similar entity), or (iii) result in any violation of any statute or any judgment, order, decree, rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder, except in the case of clauses (i) and (iii), as would not have an adverse effect on such Selling Stockholder’s ability to consummate the transactions contemplated by this Agreement.

(h)No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the sale of the Stock by such Selling Stockholder, the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby, except for the registration of the

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Stock under the Securities Act and such consents, approvals, authorizations, orders, filings, registrations or qualifications as may be required under the Exchange Act, and applicable state securities laws in connection with the purchase and sale of the Stock by the Underwriters.

(i)(w) The Registration Statement did not, as of the Effective Date, (x) the Prospectus will not, as of its date or as of the applicable Delivery Date, (y) the Pricing Disclosure Package did not, as of the Applicable Time and (z) the Pricing Disclosure Package, when taken together with each Issuer Free Writing Prospectus listed in Schedule [V] hereto, did not, as of the Applicable Time, in each case of the foregoing clauses (w) through (z), contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading; it being understood and agreed that the foregoing applies only to such information furnished by such Selling Stockholder to the Company, which consists of (A) the legal name, address and the number of shares of Common Stock owned by such Selling Stockholder (before and after giving effect to the offering of the Stock), and (B) the other information with respect to such Selling Stockholder (excluding percentages) which appears in the table (and corresponding footnotes) under the caption “Principal and Selling Stockholders” (with respect to each Selling Stockholder, the “Selling Stockholder Information”).

(j)Such Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus.

(k)Such Selling Stockholder has not taken, directly or indirectly, any action that is designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company in connection with the offering of the shares of the Stock.

Any certificate signed by any Selling Stockholder or an officer thereof, if applicable, and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Stock shall be deemed a representation and warranty by such Selling Stockholder, as to matters covered thereby, to each Underwriter.

3.Purchase of the Stock by the Underwriters.  On the basis of the representations, warranties and covenants contained in, and subject to the terms and conditions of, this Agreement, the Company agrees to sell [·] shares of the Firm Stock and each Selling Stockholder agrees to sell the number of shares of the Firm Stock set forth opposite its name in Schedule II hereto, severally and not jointly, to the several Underwriters, and each of the Underwriters, severally and not jointly, agrees to purchase the number of shares of the Firm Stock set forth opposite that Underwriter’s name in Schedule I hereto.  Each Underwriter shall be obligated to purchase from the Company, and from each Selling Stockholder, that number of shares of the Firm Stock that represents the same proportion of the number of shares of the Firm Stock to be sold by the Company and by each Selling Stockholder as the number of shares of the Firm Stock set forth opposite the name of such Underwriter in Schedule I represents to the total

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number of shares of the Firm Stock to be purchased by all of the Underwriters pursuant to this Agreement.  The respective purchase obligations of the Underwriters with respect to the Firm Stock shall be rounded among the Underwriters to avoid fractional shares, as the Representatives may determine.

In addition, each Selling Stockholder grants to the Underwriters an option to purchase up to the number of shares of Option Stock set forth opposite such Selling Stockholder’s name in Schedule II hereto, severally and not jointly.  Such options are exercisable in the event that the Underwriters sell more shares of Common Stock than the number of shares of Firm Stock in the offering and as set forth in Section 5 hereof.  Any such election to purchase Option Stock shall be made in proportion to the maximum number of shares of Option Stock to be sold by each Selling Shareholder as set forth in Schedule II hereto.  Each Underwriter agrees, severally and not jointly, to purchase the number of shares of Option Stock (subject to such adjustments to eliminate fractional shares as the Representatives may determine) that bears the same proportion to the total number of shares of Option Stock to be sold on such Delivery Date as the number of shares of Firm Stock set forth in Schedule I hereto opposite the name of such Underwriter bears to the total number of shares of Firm Stock.

The purchase price payable by the Underwriters for both the Firm Stock and any Option Stock is $[·] per share; provided, however, that the amount paid by the Underwriters for any Option Stock shall be reduced by an amount per share equal to any dividends declared by the Company and payable on the Firm Stock but not payable on such Option Stock.

The Company and the Selling Stockholders are not obligated to deliver any of the Firm Stock or Option Stock to be delivered on the applicable Delivery Date, except upon payment for all such Stock to be purchased on such Delivery Date as provided herein.

4.Offering of Stock by the Underwriters.  Upon authorization by the Representatives of the release of the Firm Stock, the several Underwriters propose to offer the Firm Stock for sale upon the terms and conditions to be set forth in the Prospectus.

5.Delivery of and Payment for the Stock.  Delivery of and payment for the Firm Stock shall be made at 10:00 A.M., New York City time, on the [third] full business day following the date of this Agreement or at such other date or place as shall be determined by agreement between the Representatives and the Company.  This date and time are sometimes referred to as the “Initial Delivery Date”.  Delivery of the Firm Stock shall be made to the Representatives for the account of each Underwriter against payment by the several Underwriters through the Representatives and of the respective aggregate purchase prices of the Firm Stock being sold by the Company and the Selling Stockholders to or upon the order of the Company and the Selling Stockholders of the purchase price by wire transfer in immediately available funds to the accounts specified by the Company and the Selling Stockholders. Time shall be of the essence, and delivery at the time and place specified pursuant to this Agreement is a further condition of the obligation of each Underwriter hereunder.  The Company shall deliver the Firm Stock through the facilities of DTC unless the Representatives shall otherwise instruct.

The option granted in Section 3 will expire 30 days after the date of this Agreement and may be exercised in whole or from time to time in part by written notice being

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given to the Company and the Selling Stockholders by the Representatives; provided that if such date falls on a day that is not a business day, the options granted in Section 3 will expire on the next succeeding business day.  Such notice shall set forth the aggregate number of shares of Option Stock as to which the options are being exercised, the names in which the shares of Option Stock are to be registered, the denominations in which the shares of Option Stock are to be issued and the date and time, as determined by the Representatives, when the shares of Option Stock are to be delivered; provided, however, that this date and time shall not be earlier than the Initial Delivery Date nor earlier than the second business day after the date on which the options shall have been exercised nor later than the fifth business day after the date on which the options shall have been exercised.  Each date and time the shares of Option Stock are delivered is sometimes referred to as an “Option Stock Delivery Date”, and the Initial Delivery Date and any Option Stock Delivery Date are sometimes each referred to as a “Delivery Date”.

Delivery of the Option Stock by the Selling Stockholders and payment for the Option Stock by the several Underwriters through the Representatives shall be made at 10:00 A.M., New York City time, on the date specified in the corresponding notice described in the preceding paragraph or at such other date or place as shall be determined by agreement between the Representatives and the Company.  On each Option Stock Delivery Date, the Selling Stockholders shall deliver, or cause to be delivered, the Option Stock, to the Representatives for the account of each Underwriter, against payment by the several Underwriters through the Representatives and of the respective aggregate purchase prices of the Option Stock being sold by the Selling Stockholders to or upon the order of the Selling Stockholders of the purchase price by wire transfer in immediately available funds to the accounts specified by the Selling Stockholders. Time shall be of the essence, and delivery at the time and place specified pursuant to this Agreement is a further condition of the obligation of each Underwriter hereunder.  The Selling Stockholders shall deliver the Option Stock through the facilities of DTC unless the Representatives shall otherwise instruct.

6.Further Agreements of the Company and the Underwriters.  (a) The Company agrees:

(i)To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the last Delivery Date except as provided herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish the Representatives with copies thereof; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the

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Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal.

(ii)To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith.

(iii)To deliver promptly to the Representatives such number of the following documents as the Representatives shall reasonably request:  (A) conformed copies of the Registration Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits), (B) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus, and (C) each Issuer Free Writing Prospectus; and, if the delivery of a prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is required at any time after the date hereof in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives and, upon their request, to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance.

(iv)To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission.

(v)Prior to filing with the Commission any amendment or supplement to the Registration Statement or the Prospectus, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing, which consent shall not be unreasonably delayed or withheld.

(vi)If the Pricing Disclosure Package is being used to solicit offers to buy the Stock at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Pricing Disclosure Package in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of which the Pricing Disclosure Package conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Pricing Disclosure Package to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either

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amendments or supplements to the Pricing Disclosure Package so that the statements in the Pricing Disclosure Package as so amended or supplemented will not, in the light of the circumstances when the Pricing Disclosure Package is delivered to a prospective purchaser, be misleading or so that the Pricing Disclosure Package, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Pricing Disclosure Package, as amended or supplemented, will comply with applicable law.

(vii)Not to make any offer relating to the Stock that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Representatives, which consent shall not be unreasonably delayed or withheld.

(viii)To comply with all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Free Writing Prospectus.  If at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Representatives and, upon their request, to file such document and to prepare and furnish without charge to each Underwriter as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.

(ix)As soon as practicable after the Effective Date (it being understood that the Company shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 455 days after the end of the Company’s current fiscal quarter), to make generally available to the Company’s security holders and to deliver to the Representatives (or make available through EDGAR) an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules and regulations thereunder (including, at the option of the Company, Rule 158 under the Securities Act); provided that such requirements shall be deemed met by the Company’s compliance with its reporting requirements pursuant to the Exchange Act if such compliance satisfies the conditions of Rule 158 under the Securities Act and the Company’s reports pursuant to the Exchange Act are available on EDGAR.

(x)Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Stock for offering and sale under the securities or Blue Sky laws of Canada and such other jurisdictions as the Representatives may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Stock; provided, that in connection therewith the Company shall not be required to (A) qualify as a foreign corporation in any jurisdiction in which it would not

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otherwise be required to so qualify, (B) file a general consent to service of process in any such jurisdiction, or (C) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.

(xi)For a period commencing on the date hereof and ending on the 180th day after the date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (A) offer for sale, sell, pledge, or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock, or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock, (B) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (A) or (B) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (C) file or cause to be filed a registration statement, including any amendments thereto, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company, or (D) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of Barclays Capital Inc. and Credit Suisse Securities (USA) LLC, on behalf of the Underwriters, and to cause each officer, director and stockholder of the Company set forth on Schedule III hereto to furnish to the Representatives, prior to the Initial Delivery Date, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”).

The restrictions contained in the preceding paragraph shall not apply to (a) the shares of Common Stock to be sold hereunder; (b) the issuance of shares of Common Stock upon the exercise or settlement of options or other securities convertible into or exchangeable for Common Stock granted under employee benefit plans, qualified stock option plans or other employee compensation plans in effect on the date hereof and described in the Pricing Disclosure Package and Prospectus; provided that any such shares of Common Stock shall be either not vested or non-transferrable during the Lock-up Period or the holders thereof shall deliver a lock-up agreement substantially in the form of Exhibit A hereto, (c) the grant by the Company of awards to employees and directors under employee benefit plans, qualified stock option plans or other employee compensation plans described in the Pricing Disclosure Package and Prospectus; provided that any such shares of Common Stock shall be either not vested or non-transferrable during the Lock-up Period or the holders thereof shall deliver a lock-up agreement substantially in the form of Exhibit A hereto, (d) the filing of any registration statement on Form S-8 with respect to the Company’s qualified stock option plans or other employee compensation plans described in the Pricing Disclosure Package and Prospectus and (e) the issuance of Common Stock in connection with the acquisition of the assets of, or a majority of controlling portion of the equity of, or a business combination or a joint venture with, another entity in connection with such business combination or such acquisition by the Company or any of its subsidiaries of such entity, provided that the aggregate number of shares issued or issuable pursuant to this clause (e) does not exceed 10% of the number of shares of Common Stock outstanding immediately

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after the offering of the Stock pursuant to this Agreement and prior to such issuance each recipient of any such securities shall execute and deliver to the Representatives an agreement substantially in the form of Exhibit A hereto.

(xii)If Barclays Capital Inc. and Credit Suisse Securities (USA) LLC, in their sole discretion, agree to release or waive the restrictions set forth in a Lock-Up Agreement (which release or waiver shall be in the form of Annex A hereto) for an officer or director of the Company and provides the Company with notice of the impending release or waiver at least three business days before the effective date of the release or waiver, the Company agrees to announce the impending release or waiver by issuing a press release substantially in the form of Exhibit B hereto, and containing such other information as Barclays Capital Inc. or Credit Suisse Securities (USA) LLC may reasonably require with respect to the circumstances of the release or waiver and/or the identity of the officer(s) and/or director(s) with respect to which the release or waiver applies, through a major news service at least two business days before the effective date of the release or waiver.

(xiii)To apply the net proceeds from the sale of the Stock being sold by the Company substantially in accordance with the description as set forth in the Prospectus under the caption “Use of Proceeds.”

(xiv)To file with the Commission such information on Form 10-Q or Form 10-K as may be required by Rule 463 under the Securities Act.

(xv)If the Company elects to rely upon Rule 462(b) under the Securities Act, the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) under the Securities Act by 10:00 P.M., Washington, D.C. time, on the date of this Agreement, and the Company shall pay the Commission the filing fee for the Rule 462(b) Registration Statement either (A) at the time of such filing or (B) in compliance with Rule 3a(c) of the Commission’s Informal and Other Procedures.

(xvi)The Company and its affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company in connection with the offering of the Stock.

(xvii)The Company will do and perform all things required or necessary to be done and performed under this Agreement by it prior to each Delivery Date, and to satisfy all conditions precedent to the Underwriters’ obligations hereunder to purchase the Stock.

(b)Each Underwriter severally agrees that such Underwriter shall not include any “issuer information” (as defined in Rule 433 under the Securities Act) in any “free writing prospectus” (as defined in Rule 405 under the Securities Act) used or referred to by such Underwriter without the prior written consent of the Company (any such issuer information with respect to whose use the Company has given its written consent, “Permitted Issuer

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Information”); provided that (i) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus, and (ii) “issuer information”, as used in this Section 6(b), shall not be deemed to include information prepared by or on behalf of such Underwriter on the basis of or derived from issuer information.

7.Further Agreements of the selling stockholders.  Each Selling Stockholder agrees, severally and not jointly:

(a)To deliver to the Representatives prior to the date hereof, a letter, substantially in the form of Exhibit A hereto.

(b)Neither such Selling Stockholder nor any person acting on behalf of the Selling Stockholder (other than, if applicable, the Company and the Underwriters) shall use or refer to any “free writing prospectus” (as defined in Rule 405 under the Securities Act), relating to the Stock.

(c)To deliver to the Representatives prior to the Initial Delivery Date a properly completed and executed United States Treasury Department Form W-8 (if such Selling Stockholder is a non-United States person) or Form W-9 (if such Selling Stockholder is a United States person).

(d)Such Selling Stockholder will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company in connection with the offering of the Stock.

(e)Such Selling Stockholder will do and perform all things required or necessary to be done and performed under this Agreement by it prior to each Delivery Date, and to satisfy all conditions precedent to the Underwriters’ obligations hereunder to purchase the Stock.

8.Expenses. The Company agrees, whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, to pay all expenses, costs, fees and taxes incident to and in connection with (a) the authorization, issuance, sale and delivery of the Stock and any stamp duties or other taxes payable in that connection, and the preparation and printing of certificates for the Stock; (b) the preparation, printing and filing under the Securities Act of the Registration Statement (including any exhibits thereto), any Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus, and any amendment or supplement thereto; (c) the distribution of the Registration Statement (including any exhibits thereto), any Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus, and any amendment or supplement thereto, all as provided in this Agreement; (d) the production and distribution of this Agreement, any supplemental agreement among Underwriters, and any other related documents in connection with the offering, purchase, sale and delivery of the Stock; (e) any required review by the FINRA of the terms of sale of the Stock (including related fees and expenses of counsel to the Underwriters in an amount that is not greater than $50,000); (f) the listing of the Stock on the New York Stock Exchange and/or any other exchange; (g) the

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qualification of the Stock under the securities laws of the several jurisdictions as provided in Section 6(a)(ix) and the preparation, printing and distribution of a Blue Sky Memorandum (including related reasonable fees and expenses of counsel to the Underwriters); (h) the preparation, printing and distribution of one or more versions of the Preliminary Prospectus and the Prospectus for distribution in Canada, including in the form of a Canadian “wrapper” or supplement (including related reasonable fees and expenses of Canadian counsel to the Underwriters); (i) the investor presentations on any “road show” undertaken in connection with the marketing of the Stock, including, without limitation, expenses associated with any electronic road show, travel and lodging expenses of the representatives and officers of the Company and 50% of the cost of any aircraft chartered in connection with the road show; and (j) all other costs and expenses incident to the performance of the obligations of the Company and the Selling Stockholders under this Agreement; provided that, except as provided in this Section 8 and in Section 13, the Underwriters shall pay their own costs and expenses, including the costs and expenses of their counsel, any transfer taxes on the Stock which they may sell and the expenses of advertising any offering of the Stock made by the Underwriters, and the Selling Stockholders shall bear the pro rata cost of any underwriting discount and any underwriting commission with all other fees attributable to the Selling Stockholders and related to the offering borne by the Company.

9.Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunder are subject to the accuracy, when made and on each Delivery Date, of the representations and warranties of the Company and the Selling Stockholders contained herein, to the performance by the Company and the Selling Stockholders of their respective obligations hereunder, and to each of the following additional terms and conditions:

(a)The Prospectus shall have been timely filed with the Commission in accordance with Section 6(a)(i).  The Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the date hereof; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding or examination for such purpose shall have been initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with.  If the Company has elected to rely upon Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 P.M., Washington, D.C. time, on the date of this Agreement.

(b)No Underwriter shall have discovered and disclosed to the Company on or prior to such Delivery Date that the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Shearman & Sterling LLP, counsel for the Underwriters, is material or omits to state a fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.

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(c)All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Stock, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to Shearman & Sterling LLP, counsel for the Underwriters, and the Company and the Selling Stockholders shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.

(d)Skadden, Arps, Slate, Meagher & Flom LLP shall have furnished to the Representatives its written opinion and negative assurance letter, as counsel to the Company, addressed to the Underwriters and dated such Delivery Date, in form and substance reasonably satisfactory to the Representatives.

(e)Thompson Hine LLP shall have furnished to the Representatives its written opinion, as counsel to the Company, addressed to the Underwriters and dated such Delivery Date, in form and substance reasonably satisfactory to the Representatives.

(f)(x) Skadden, Arps, Slate, Meagher & Flom LLP shall have furnished to the Representatives their written opinion, as counsel for each Selling Stockholder that is an affiliate of Oaktree Capital Management, L.P. (each, a “Sponsor Selling Stockholder”), addressed to the Underwriters and dated such Delivery Date, in form and substance reasonably satisfactory to the Representatives, and (y) [·], counsel to [·](the “Non-Sponsor Selling Stockholder[s]”), shall be furnished to the Representatives on each Delivery Date at which the Non-Sponsor Selling Stockholder[s] is selling any Stock, dated such Delivery Date, in form and substance satisfactory to the Representatives.

(g)The Representatives shall have received from Shearman & Sterling LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letter, dated such Delivery Date, with respect to the issuance and sale of the Stock, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.

(h)At the time of execution of this Agreement, the Representatives shall have received from PWC a letter, in form and substance satisfactory to the Representatives, addressed to the Underwriters and dated the date hereof (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Preliminary Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.

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(i)With respect to the letter of PWC referred to in the preceding paragraph and delivered to the Representatives concurrently with the execution of this Agreement (the “initial letter”), the Company shall have furnished to the Representatives a letter (the “bring-down letter”) of such accountants, addressed to the Underwriters and dated such Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.

(j)The Company shall have furnished to the Representatives a certificate, dated such Delivery Date, of its Chief Executive Officer and its Chief Financial Officer as to such matters as the Representatives may reasonably request, including, without limitation, a statement:

(i)That the representations, warranties and agreements of the Company in Section 1 are true and correct on and as of such Delivery Date, and the Company has complied with all its agreements contained herein and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such Delivery Date;

(ii)That no stop order suspending the effectiveness of the Registration Statement has been issued; and no proceedings or examination for that purpose have been instituted or, to the knowledge of such officers, threatened;

(iii)That they have examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the applicable Delivery Date, and (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth; and

(iv)To the effect of Section 9(l) (provided that no representation with respect to the judgment of the Representatives need be made) and Section 9(m).

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(k)Each Selling Stockholder shall have furnished to the Representatives on such Delivery Date a certificate, dated such Delivery Date, signed by, or on behalf of, the Selling Stockholder stating that such Selling Stockholder has examined the Selling Stockholder Information with respect to such Selling Stockholder contained in the Registration Statement, the Prospectus and the Pricing Disclosure Package and that (i) the representations, warranties and agreements of the Selling Stockholder contained herein are true and correct on and as of such Delivery Date and (ii) the Selling Stockholder has complied with all its agreements contained herein and has satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such Delivery Date.

(l)Except as described in the most recent Preliminary Prospectus, (i) neither the Company nor any of its subsidiaries shall have sustained, since the date of the latest audited financial statements included in the most recent Preliminary Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, or (ii) since such date there shall not have been any change in the capital stock, partnership or limited liability interests, as applicable, or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective adverse change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects of the Company and its subsidiaries taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, individually or in the aggregate, in the judgment of the Representatives, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Stock being delivered on such Delivery Date on the terms and in the manner contemplated in the Prospectus.

(m)Subsequent to the execution and delivery of this Agreement (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization” (as defined by the Commission in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.

(n)Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following:  (i) (A) trading in securities generally on any securities exchange that has registered with the Commission under Section 6 of the Exchange Act (including the New York Stock Exchange, The NASDAQ Global Select Market, The NASDAQ Global Market or The NASDAQ Capital Market), or (B) trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a general moratorium on commercial banking activities shall have been declared by federal or state authorities, (iii) the United States shall have become engaged in hostilities, there

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shall have been an escalation in hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States, or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the United States shall be such) or any other calamity or crisis either within or outside the United States, as to make it, in the judgment of the Representatives, impracticable or inadvisable to proceed with the public offering or delivery of the Stock being delivered on such Delivery Date on the terms and in the manner contemplated in the Prospectus.

(o)The New York Stock Exchange shall have approved the Stock for listing, subject only to official notice of issuance and evidence of satisfactory distribution.

(p)The Lock-Up Agreements between the Representatives, the Company and the officers, directors and stockholders of the Company set forth on Schedule III, delivered to the Representatives on or before the date of this Agreement, shall be in full force and effect on such Delivery Date.

(q)On or prior to each Delivery Date, the Company shall have furnished to the Underwriters such further certificates and documents as the Representatives may reasonably request.

(r)The Company shall furnish to the Representatives on the date hereof and on the Closing Date, a certificate from the Chief Financial Officer of the Company substantially in the form of Exhibit C.

All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.

10.Indemnification and Contribution.

(a)The Company hereby agrees to indemnify and hold harmless each Underwriter, its affiliates, directors, officers and employees and each person, if any, who controls any Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof (including, but not limited to, any loss, claim, damage, liability or action relating to purchases and sales of Stock), to which that Underwriter, affiliate, director, officer, employee or controlling person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in (A) any Preliminary Prospectus, the Registration Statement, the Prospectus or in any amendment or supplement thereto, (B) any Issuer Free Writing Prospectus or in any amendment or supplement thereto, (C) any Permitted Issuer Information used or referred to in any “free writing prospectus” (as defined in Rule 405 under the Securities Act) used or referred to by any Underwriter, (D) any materials or information provided to investors by, or with the approval of, the

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Company in connection with the marketing of the offering of the Stock, including any “road show” (as defined in Rule 433 under the Securities Act) not constituting an Issuer Free Writing Prospectus (“Marketing Materials”), or (E) any Blue Sky application or other document prepared or executed by the Company (or based upon any written information furnished by the Company in writing expressly for use therein) specifically for the purpose of qualifying any or all of the Stock under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or (ii) the omission or alleged omission to state in any Preliminary Prospectus, the Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or in any amendment or supplement thereto or in any Permitted Issuer Information, any Marketing Materials or any Blue Sky Application, any material fact required to be stated therein or necessary to make the statements therein not misleading, and shall reimburse each Underwriter and each such affiliate, director, officer, employee or controlling person promptly upon demand for any legal or other expenses reasonably incurred by that Underwriter, affiliate, director, officer, employee or controlling person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage, liability or action arises out of, or is based upon, any untrue statement or alleged untrue statement or omission or alleged omission made in any Preliminary Prospectus, the Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or in any such amendment or supplement thereto or in any Permitted Issuer Information, any Marketing Materials or any Blue Sky Application, in reliance upon and in conformity with written information concerning such Underwriter furnished to the Company through the Representatives by or on behalf of any Underwriter specifically for inclusion therein, which information consists solely of the information specified in Section 10(f).  The foregoing indemnity agreement is in addition to any liability which the Company may otherwise have to any Underwriter or to any affiliate, director, officer, employee or controlling person of that Underwriter.

(b)Each of the Selling Stockholders, severally and not jointly, shall indemnify and hold harmless each Underwriter, its affiliates, directors, officers and employees, and each person, if any, who controls any Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof (including, but not limited to, any loss, claim, damage, liability or action relating to purchases and sales of Stock), to which that Underwriter, affiliate, director, officer, employee or controlling person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or in any amendment or supplement thereto or in any Permitted Issuer Information, any Marketing Materials, any Blue Sky Application or any “free writing prospectus” (as defined in Rule 405 under the Securities Act) (any such “free writing prospectus” that was prepared by or on behalf of such Selling Stockholder or used or referred to by such Selling Stockholder in connection with the offering of the Stock in violation of Section 7(c) being referred to as a “Selling Stockholder Free Writing

28

Prospectus”), or (ii) the omission or alleged omission to state in any Preliminary Prospectus, Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or in any amendment or supplement thereto or in any Permitted Issuer Information, any Marketing Materials, any Blue Sky Application or any Selling Stockholder Free Writing Prospectus, any material fact required to be stated therein or necessary to make the statements therein not misleading, and shall reimburse each Underwriter, its affiliates, directors, officers and employees and each such controlling person promptly upon demand for any legal or other expenses reasonably incurred by that Underwriter, its affiliates, directors, officers and employees or controlling persons in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred, but in each case only to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with the Selling Stockholder Information with respect to such Selling Stockholder.  The aggregate liability of each Selling Stockholder under this subsection shall be limited to the gross proceeds, after deducting underwriting discounts and commissions but before deducting expenses, received by such Selling Stockholder from the shares sold by such Selling Stockholder pursuant to this Agreement, as set forth in the Prospectus.  The foregoing indemnity agreement is in addition to any liability that the Selling Stockholders may otherwise have to any Underwriter or any affiliate, director, officer, employee or controlling person of that Underwriter.

(c)Each Underwriter, severally and not jointly, shall indemnify and hold harmless the Company, each Selling Stockholder, their respective directors (including any person who, with his or her consent, is named in the Registration Statement as about to become a director of the Company), officers and employees, and each person, if any, who controls the Company or such Selling Stockholder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company, such Selling Stockholder or any such director, officer, employee or controlling person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or in any amendment or supplement thereto or in any Marketing Materials or Blue Sky Application, or (ii) the omission or alleged omission to state in any Preliminary Prospectus, the Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or in any amendment or supplement thereto or in any Marketing Materials or Blue Sky Application, any material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case only to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information concerning such Underwriter furnished to the Company through the Representatives by or on behalf of that Underwriter specifically for inclusion therein, which information is limited to the information set forth in Section 10(f).  The foregoing indemnity agreement is in addition to any liability that any Underwriter may otherwise have to the Company, such Selling Stockholder or any such director, officer, employee or controlling person.

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(d)Promptly after receipt by an indemnified party under this Section 10 of notice of any claim or the commencement of any action, the indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under this Section 10, notify the indemnifying party in writing of the claim or the commencement of that action; provided, however, that the failure to notify the indemnifying party shall not relieve it from any liability which it may have under this Section 10 except to the extent it has been materially prejudiced (through the forfeiture of substantive rights and defenses) by such failure and, provided, further, that the failure to notify the indemnifying party shall not relieve it from any liability which it may have to an indemnified party otherwise than under this Section 10.  If any such claim or action shall be brought against an indemnified party, and it shall notify the indemnifying party thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense thereof with counsel reasonably satisfactory to the indemnified party.  After notice from the indemnifying party to the indemnified party of its election to assume the defense of such claim or action, the indemnifying party shall not be liable to the indemnified party under this Section 10 for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof other than reasonable costs of investigation; provided, however, that the indemnified party shall have the right to employ counsel to represent jointly the indemnified party and those other indemnified parties and their respective directors, officers, employees and controlling persons who may be subject to liability arising out of any claim in respect of which indemnity may be sought under this Section 10 if (i) the indemnified party and the indemnifying party shall have so mutually agreed; (ii) the indemnifying party has failed within a reasonable time to retain counsel reasonably satisfactory to the indemnified party; (iii) the indemnified party and its directors, officers, employees and controlling persons shall have reasonably concluded that there may be legal defenses available to them that are different from or in addition to those available to the indemnifying party; or (iv) the named parties in any such proceeding (including any impleaded parties) include both the indemnified parties or their respective directors, officers, employees or controlling persons, on the one hand, and the indemnifying party, on the other hand, and representation of both sets of parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and in any such event the fees and expenses of such separate counsel shall be paid by the indemnifying party.  No indemnifying party shall (x) without the prior written consent of the indemnified parties (which consent shall not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding and does not include a statement as to, or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party, or (y) be liable for any settlement of any such action effected without its written consent (which consent shall not be unreasonably withheld), but if settled with the consent of the indemnifying party or if there be a final judgment for the plaintiff in any such action, the indemnifying party agrees to indemnify and hold

30

harmless any indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by Section 10(a) or 10(b) hereof, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request or disputed in good faith the indemnified party’s entitlement to such reimbursement prior to the date of such settlement.

(e)           If the indemnification provided for in this Section 10 shall for any reason be unavailable to or insufficient to hold harmless an indemnified party under Section 10(a), 10(b) or 10(c) in respect of any loss, claim, damage or liability, or any action in respect thereof, referred to therein, then each indemnifying party shall, in lieu of indemnifying such indemnified party, contribute to the amount paid or payable by such indemnified party as a result of such loss, claim, damage or liability, or action in respect thereof, (i) in such proportion as shall be appropriate to reflect the relative benefits received by the Company and the Selling Stockholders, on the one hand, and the Underwriters, on the other, from the offering of the Stock, or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company and the Selling Stockholders, on the one hand, and the Underwriters, on the other, with respect to the statements or omissions that resulted in such loss, claim, damage or liability, or action in respect thereof, as well as any other relevant equitable considerations.  The relative benefits received by the Company and the Selling Stockholders, on the one hand, and the Underwriters, on the other, with respect to such offering shall be deemed to be in the same proportion as the total gross proceeds from the offering of the Stock purchased under this Agreement (after deducting underwriting discounts and commissions but before deducting expenses) received by the Company and the Selling Stockholders, as set forth in the table on the cover page of the Prospectus, on the one hand, and the total underwriting discounts and commissions received by the Underwriters with respect to the shares of the Stock purchased under this Agreement, as set forth in the table on the cover page of the Prospectus, on the other hand.  The relative fault shall be determined by reference to whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company, the Selling Stockholders or the Underwriters, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such statement or omission.  The Company, the Selling Stockholders and the Underwriters agree that it would not be just and equitable if contributions pursuant to this Section 10(e) were to be determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take into account the equitable considerations referred to herein.  The amount paid or payable by an indemnified party as a result of the loss, claim, damage or liability, or action in respect thereof, referred to above in this Section 10(e) shall be deemed to include, for purposes of this Section 10(e), any legal or other expenses reasonably incurred by such indemnified party in connection with investigating

31

or defending any such action or claim.  Notwithstanding the provisions of this Section 10(e), in no event shall an Underwriter be required to contribute any amount in excess of the amount by which the total underwriting discounts and commissions received by such Underwriter with respect to the offering of the Stock exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission.  No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.  The Underwriters’ obligations to contribute as provided in this Section 10(e) are several in proportion to their respective underwriting obligations and not joint.

(f)            The Underwriters severally confirm and the Company and each Selling Stockholder acknowledges and agrees that the statements regarding delivery of shares by the Underwriters set forth on the cover page of, and the concession and reallowance figures and the paragraph relating to stabilization by the Underwriters appearing under the caption “Underwriting” in, the most recent Preliminary Prospectus and the Prospectus constitute the only information concerning such Underwriters furnished in writing to the Company by or on behalf of the Underwriters specifically for inclusion in any Preliminary Prospectus, the Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or in any amendment or supplement thereto or in any Marketing Materials.

11.          Defaulting Underwriters.

(a)           If, on any Delivery Date, any Underwriter defaults in its obligations to purchase the Stock that it has agreed to purchase under this Agreement, the remaining non-defaulting Underwriters may in their discretion arrange for the purchase of such Stock by the non-defaulting Underwriters or other persons satisfactory to the Company on the terms contained in this Agreement.  If, within 36 hours after any such default by any Underwriter, the non-defaulting Underwriters do not arrange for the purchase of such Stock, then the Company shall be entitled to a further period of 36 hours within which to procure other persons satisfactory to the non-defaulting Underwriters to purchase such Stock on such terms.  In the event that within the respective prescribed periods, the non-defaulting Underwriters notify the Company that they have so arranged for the purchase of such Stock, or the Company notifies the non-defaulting Underwriters that it has so arranged for the purchase of such Stock, either the non-defaulting Underwriters or the Company may postpone such Delivery Date for up to seven full business days in order to effect any changes that in the opinion of counsel for the Company or counsel for the Underwriters may be necessary in the Registration Statement, the Prospectus or in any other document or arrangement, and the Company agrees to promptly prepare any amendment or supplement to the Registration Statement, the Prospectus or in any such other document or arrangement that effects any such changes.  As used in this Agreement, the term “Underwriter” includes, for all purposes of this Agreement unless the context requires otherwise, any party not listed in Schedule

32

I hereto that, pursuant to this Section 11, purchases Stock that a defaulting Underwriter agreed but failed to purchase.

(b)           If, after giving effect to any arrangements for the purchase of the Stock of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as provided in Section 11 (a), the total number of shares of the Stock that remains unpurchased does not exceed one-eleventh of the total number of shares of all the Stock, then the Company shall have the right to require each non-defaulting Underwriter to purchase the total number of shares of Stock that such Underwriter agreed to purchase hereunder plus such Underwriter’s pro rata share (based on the total number of shares of Stock that such Underwriter agreed to purchase hereunder) of the Stock of such defaulting Underwriter or Underwriters for which such arrangements have not been made; provided that the non-defaulting Underwriters shall not be obligated to purchase more than 110% of the total number of shares of Stock that it agreed to purchase on such Delivery Date pursuant to the terms of Section 3.

(c)           If, after giving effect to any arrangements for the purchase of the Stock of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as provided in Section 11 (a), the total number of shares of Stock that remains unpurchased exceeds one-eleventh of the total number of shares of all the Stock, or if the Company shall not exercise the right described in Section 11 (b), then this Agreement shall terminate without liability on the part of the non-defaulting Underwriters.  Any termination of this Agreement pursuant to this Section 11 shall be without liability on the part of the Company, except that the Company will continue to be liable for the payment of expenses as set forth in Sections 8 and 13 and except that the provisions of Section 10 shall not terminate and shall remain in effect.

(d)           Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have to the Company or any non-defaulting Underwriter for damages caused by its default.

12.          Termination.  The obligations of the Underwriters hereunder may be terminated by the Representatives by notice given to and received by the Company and the Selling Stockholders prior to delivery of and payment for the Firm Stock if, prior to that time, any of the events described in Sections 9(l), 9(m) and 9(n) shall have occurred or if the Underwriters shall decline to purchase the Stock for any reason permitted under this Agreement.

13.          Reimbursement of Underwriters’ Expenses.  If (a) the Company or any Selling Stockholder shall fail to tender the Stock for delivery to the Underwriters for any reason or (b) the Underwriters shall decline to purchase the Stock for any reason permitted under this Agreement, the Company and the Selling Stockholders will reimburse the Underwriters for all reasonable out-of-pocket expenses (including fees and disbursements of counsel for the Underwriters) incurred by the Underwriters in connection with this Agreement and the proposed purchase of the Stock, and upon demand the Company and the Selling Stockholders shall pay the full amount thereof to the Representatives.  If this Agreement is terminated pursuant to Section

33

11 by reason of the default of one or more Underwriters, neither the Company nor any Selling Stockholder shall be obligated to reimburse any defaulting Underwriter on account of those expenses.

14.          Research Analyst Independence.  The Company acknowledges that the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies, and that such Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company and/or the offering that differ from the views of their respective investment banking divisions.  The Company and the Selling Stockholders hereby waive and release, to the fullest extent permitted by law, any claims that the Company or the Selling Stockholders may have against the Underwriters with respect to any conflict of interest that may arise from the fact that the views expressed by their independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company or the Selling Stockholders by such Underwriters’ investment banking divisions.  The Company and the Selling Stockholders acknowledge that each of the Underwriters is a full service securities firm and as such from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that may be the subject of the transactions contemplated by this Agreement.

15.          No Fiduciary Duty.  The Company and the Selling Stockholders acknowledge and agree that in connection with this offering, sale of the Stock or any other services the Underwriters may be deemed to be providing hereunder, notwithstanding any preexisting relationship, advisory or otherwise, between the parties or any oral representations or assurances previously or subsequently made by the Underwriters:  (a) no fiduciary or agency relationship between the Company, Selling Stockholders and any other person, on the one hand, and the Underwriters, on the other, exists; (b) the Underwriters are not acting as advisors, expert or otherwise, to either the Company or the Selling Stockholders, including, without limitation, with respect to the determination of the public offering price of the Stock, and such relationship between the Company and the Selling Stockholders, on the one hand, and the Underwriters, on the other, is entirely and solely commercial, based on arms-length negotiations; (c) any duties and obligations that the Underwriters may have to the Company or Selling Stockholders shall be limited to those duties and obligations specifically stated herein; and (d) the Underwriters and their respective affiliates may have interests that differ from those of the Company and the Selling Stockholders.  The Company and the Selling Stockholders hereby waive any claims that the Company or the Selling Stockholders may have against the Underwriters with respect to any breach of fiduciary duty in connection with this offering.

16.          Notices, etc.  All statements, requests, notices and agreements hereunder shall be in writing, and:

(a)   if to the Underwriters, shall be delivered or sent by mail or facsimile transmission to (x) Barclays Capital Inc., 745 Seventh Avenue, New York, New York 10019, Attention: Syndicate Registration (Fax: (646) 834-8133), with a copy, in the case of any notice pursuant to Section 10(d), to the Director of

34

Litigation, Office of the General Counsel, Barclays Capital Inc., 745 Seventh Avenue, New York, New York 10019, (y) Credit Suisse Securities (USA) LLC, Eleven Madison Avenue, New York, New York 10010-3629, Attention: Legal-IBCM (facsimile: (212) 325-4296) and (z) Morgan Stanley & Co. LLC, 1585 Broadway, New York, New York 10036, Attention: Equity Syndicate Desk, with a copy to the Legal Department;

(b)   if to the Company, shall be delivered or sent by mail or facsimile transmission to the address of the Company set forth in the Registration Statement, Attention: Michael Sims (Fax: (513) 682-1330); and

(c)   if to any Selling Stockholder, shall be delivered or sent by mail or facsimile transmission to such Selling Stockholder at the address set forth on Schedule II hereto.

Any such statements, requests, notices or agreements shall take effect at the time of receipt thereof.  The Company and the Selling Stockholders shall be entitled to act and rely upon any request, consent, notice or agreement given or made on behalf of the Underwriters by the Representatives.

17.          Persons Entitled to Benefit of Agreement.  This Agreement shall inure to the benefit of and be binding upon the Underwriters, the Company, the Selling Stockholders and their respective successors.  This Agreement and the terms and provisions hereof are for the sole benefit of only those persons, except that (a) the representations, warranties, indemnities and agreements of the Company and the Selling Stockholders contained in this Agreement shall also be deemed to be for the benefit of the directors, officers and employees of the Underwriters and each person or persons, if any, who control any Underwriter within the meaning of Section 15 of the Securities Act, and (b) the indemnity agreement of the Underwriters contained in Section 10(c) of this Agreement shall be deemed to be for the benefit of the directors, officers and employees of the Company and the Selling Stockholders and any person controlling the Company or the Selling Stockholders within the meaning of Section 15 of the Securities Act.  Nothing in this Agreement is intended or shall be construed to give any person, other than the persons referred to in this Section 17, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein.

18.          Survival.  The respective indemnities, representations, warranties and agreements of the Company, the Selling Stockholders and the Underwriters contained in this Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall survive the delivery of and payment for the Stock and shall remain in full force and effect, regardless of any investigation made by or on behalf of any of them or any person controlling any of them.

19.          Definition of the Terms “Business Day”, “Affiliate” and “Subsidiary”.  For purposes of this Agreement, (a) “business day” means each Monday, Tuesday, Wednesday, Thursday or Friday that is not a day on which banking institutions in New York are generally authorized or obligated by law or executive order to close, and (b) “affiliate” and “subsidiary” have the meanings set forth in Rule 405 under the Securities Act.

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20.          Governing Law.  This Agreement shall be governed by and construed in accordance with the laws of the State of New York.

21.          Waiver of Jury Trial.  The Company, the Selling Stockholders and the Underwriters hereby irrevocably waive, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.

22.          Counterparts.  This Agreement may be executed in one or more counterparts and, if executed in more than one counterpart, the executed counterparts shall each be deemed to be an original but all such counterparts shall together constitute one and the same instrument.

23.          Headings.  The headings herein are inserted for convenience of reference only and are not intended to be part of, or to affect the meaning or interpretation of, this Agreement.

[Remainder of page intentionally left blank]

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If the foregoing correctly sets forth the agreement among the Company, the Selling Stockholders and the Underwriters, please indicate your acceptance in the space provided for that purpose below.

Very truly yours,
ADVANCEPIERRE FOODS HOLDINGS, INC.
By:
	Name:
	Title:
OCM PRINCIPAL OPPORTUNITIES FUND IV DELAWARE, L.P.
By:	OCM Principal Opportunities Fund IV Delaware GP Inc., its general partner
By:
Name:
Title:
By:
Name:
Title:
OCM APFH HOLDINGS, LLC
By:   OCM Principal Opportunities Fund IV Delaware, L.P., its manager
By:   OCM Principal Opportunities Fund IV Delaware GP Inc., its general partner
By:
Name:
Title:
[·]

37

By:

Name:

Title:

38

Accepted:
BARCLAYS CAPITAL INC.
CREDIT SUISSE SECURITIES (USA) LLC
MORGAN STANLEY & CO. LLC
For themselves and as Representatives
of the several Underwriters named
in Schedule I hereto
By BARCLAYS CAPITAL INC.
By:
	Authorized Representative
By CREDIT SUISSE SECURITIES (USA) LLC
By:
	Authorized Representative
By MORGAN STANLEY & CO. LLC
By:
	Authorized Representative

39

SCHEDULE I

Underwriters	Number of Shares of Firm Stock
Barclays Capital Inc.	[·]
Credit Suisse Securities (USA) LLC	[·]
Morgan Stanley & Co. LLC	[·]
Goldman, Sachs & Co.	[·]
BMO Capital Markets Corp.	[·]
Deutsche Bank Securities Inc.	[·]
Merrill Lynch, Pierce, Fenner & Smith Incorporated	[·]
Wells Fargo Securities, LLC	[·]
Houlihan Lokey Capital, Inc.	[·]
Total	[·]

SCHEDULE II

Name and Address of Selling Stockholder	Number of Shares of Firm Stock	Number of Shares of Option Stock
OCM Principal Opportunities Fund IV Delaware, L.P.	[·]	[·]
c/o Oaktree Capital Management, L.P. 333 South Grand Avenue, 28th Floor Los Angeles, CA 90071
OCM APFH Holdings, LLC	[·]	[·]
c/o Oaktree Capital Management, L.P. 333 South Grand Avenue, 28th Floor Los Angeles, CA 90071
[·]	[·]	[·]
[·]
Total	[·]	[·]

SCHEDULE III

PERSONS DELIVERING LOCK-UP AGREEMENTS

Directors

Margaret M. Cannella

Celeste A. Clark, Ph.D.

Peter C. Dillingham

Dean Hollis

Stephen A. Kaplan

Gary L. Perlin

John N. Simons, Jr.

Matthew C. Wilson

Officers

John N. Simons, Jr.

Michael B. Sims

James L. Clough

Steven D. Booker

Tony Schroder

George F. Chappelle, Jr.

John W. (Bill) Theis, III

Bernie Panchot

Stockholders

Allen Family 2009 Trust

1998 Mark S. Allen Family Trust

1998 Greg S. Allen Family Trust

Jean McLaughlin Family 2009 Trust

David McLaughlin Family 2009 Trust

Jean E. McLaughlin Revocable Trust

David L. McLaughlin Revocable Trust

Gregory S. Allen Revocable Trust

Allen-McLaughlin APF Holdings, LLC

OCM Principal Opportunities Fund IV Delaware, L.P.

OCM APFH Holdings, LLC

Steve Beatty

Scott Benne

Chris Chanski

April Darre

Tom Ferris

Bryan Freeman

Ed Frentress

Eduardo Gonzalez

Serge Lehenaff

Mike Leiker

Martin Madsen

Rob Marlow

Mario Mendez

David Minx

Tim Nangle

Douglas Santschi

Dave Tipton

Michael Reilly

Katherine Reilly

[SCHEDULE IV]

ORALLY CONVEYED PRICING INFORMATION

1. [Public offering price]

2. [Number of shares offered]

SCHEDULE [V]

ISSUER FREE WRITING PROSPECTUSES — ROAD SHOW MATERIALS

[·]

SCHEDULE [VI]

ISSUER FREE WRITING PROSPECTUS

[·]

SCHEDULE [VII]

SUBSIDIARIES

Pierre Holdco, Inc.

AdvancePierre Foods, Inc.

Barber Foods, LLC

Clovervale Farms, LLC

APF Legacy Subs, LLC

Chefs Pantry, LLC

Advance Food Company, LLC

EXHIBIT A

LOCK-UP LETTER AGREEMENT

BARCLAYS CAPITAL INC.

CREDIT SUISSE SECURITIES (USA) LLC

As Representatives of the several

Underwriters named in Schedule I,

c/o Barclays Capital Inc.

745 Seventh Avenue
New York, New York 10019

Ladies and Gentlemen:

The undersigned understands that you and certain other firms (the “Underwriters”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) providing for the purchase by the Underwriters of shares (the “Stock”) of Common Stock, par value $0.01 per share (the “Common Stock”), of AdvancePierre Foods Holdings, Inc., a Delaware corporation (the “Company”), and that the Underwriters propose to reoffer the Stock to the public (the “Offering”).

In consideration of the execution of the Underwriting Agreement by the Underwriters, and for other good and valuable consideration, the undersigned hereby irrevocably agrees that, without the prior written consent of Barclays Capital Inc. and Credit Suisse Securities (USA) LLC, on behalf of the Underwriters, the undersigned will not, directly or indirectly, (1) offer for sale, sell, pledge, or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock (including, without limitation, shares of Common Stock that may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission and shares of Common Stock that may be issued upon exercise of any options or warrants) or securities convertible into or exercisable or exchangeable for Common Stock (other than the Stock), (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (3) make any demand for or exercise any right or cause to be filed a registration statement, including any amendments thereto, with respect to the registration of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock or any other securities of the Company, or (4) publicly disclose the intention to do any of the foregoing for a period commencing on the date hereof and ending on the 180th day after the date of the Prospectus relating to the Offering (such 180-day period, the “Lock-Up Period”).

The foregoing paragraph shall not apply to:

Exhibit A-1

(a) transactions relating to shares of Common Stock or other securities acquired in the open market after the completion of the Offering;

(b) transfers as a bona fide gift or charitable contribution;

(c) if the undersigned is a corporation, partnership, limited liability company or other business entity, transfers to members, limited partners, stockholders or holders of similar equity interests of, or to any other affiliate or entity controlled or managed by, or under common control or management with, the undersigned;

(d) if the undersigned is an individual, transfers to any trusts, partnership or limited liability company for the direct or indirect benefit of the undersigned or an “immediate family member” (as defined in Rule 16c-1 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of the undersigned;

(e) if the undersigned is an individual, any transfer by will, other testamentary document or intestate succession upon the death of the undersigned;

provided that it shall be a condition to any transfer pursuant to clause (b) through (e) above, as applicable, that (i) the transferee or donee agrees to be bound by the terms of this Lock-Up Letter Agreement (including, without limitation, the restrictions set forth in the preceding sentence) to the same extent as if the transferee or donee were a party hereto and (ii) each party (donor, donee, transferor or transferee) shall not be required by law (including without limitation the disclosure requirements of the Securities Act of 1933, as amended (the Securities Act”), and the Exchange Act) to make, and shall agree to not voluntarily make, any filing or public announcement of the transfer or disposition prior to the expiration of the Lock-Up Period;

(f) the exercise (including cashless exercise) of warrants, stock options or securities convertible into, exchangeable or exercisable for, Common Stock, in each case granted pursuant to the Company’s stock option or incentive plans or otherwise outstanding on the date hereof; provided, that (x) the restrictions shall apply to shares of Common Stock issued upon such exercise or conversion and (y) no filing shall be required by law (including the Securities Act and the Exchange Act) and the undersigned agrees not to voluntarily make any filing or public announcement in connection with such exercise of warrants or stock options prior to the expiration of the Lock-Up Period,

(g) the establishment of any contract, instruction or plan that satisfies all of the requirements of Rule 10b5-1 (a “Rule 10b5-1 Plan”) under the Exchange Act; provided, however, that no sales of Common Stock or securities convertible into, or exchangeable or exercisable for, Common Stock, shall be made pursuant to a Rule 10b5-1 Plan prior to the expiration of the Lock-Up Period; provided further, that the Company is not required to report the establishment of such Rule 10b5-1 Plan in any public report or filing with the Commission under the Exchange Act during the Lock-Up Period and does not otherwise voluntarily effect any such public filing or report regarding such Rule 10b5-1 Plan;

Exhibit A-2

(h) any demands or requests for, exercise any right with respect to, or take any action in preparation of, the registration by the Company under the Act of the undersigned’s shares of Common Stock; provided that no transfer of the undersigned’s shares of Common Stock registered pursuant to the exercise of any such right and no registration statement shall be filed under the Act with respect to any of the undersigned’s shares of Common Stock during the Lock-Up Period;

(i) any transfer pursuant to a bona fide third party tender offer made to all holders of the Common Stock, merger, consolidation or other similar transaction involving a change of control of the Company, in each case, that has been approved by the Board of Directors of the Company (including, without limitation, entering into any lock-up, voting or similar agreement pursuant to which the undersigned may agree to transfer, sell, tender or otherwise dispose of Common Stock in connection with any such transaction, or vote any Common Stock in favor of any such transaction) (for purposes of this clause (i), “change of control of the Company” shall mean the consummation of any bona fide third party tender offer, merger, purchase, consolidation or other similar transaction the result of which is that any “person” (as defined in Section 13(d)(3) of the Exchange Act) or group of persons, (other than an Underwriter pursuant to the Offering) becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 of the Exchange Act) of a majority of total voting power of the voting stock of the Company); provided that all shares of Common Stock that are not so transferred in such tender offer, merger, consolidation or other such transaction remain subject to this Lock-up Letter Agreement; provided further that it shall be a condition of transfer that if such tender offer, merger, consolidation or other such transaction is not completed, any Common Stock subject to this Lock-up Letter Agreement shall remain subject to the restrictions contained in this Lock-Up Letter Agreement; or

(j) transfers to the Company solely for the purpose of satisfying any tax or other governmental withholding obligations (including estimated taxes) due as a result of the exercise of options, warrants or the conversion of a security or as a result of the vesting of or upon the receipt of equity awards held by the undersigned, provided, however, that for purposes of this clause (j) no filing under Section 16(a) of the Exchange Act reporting a reduction in beneficial ownership of shares of Common Stock shall be required or shall be voluntarily made during the Lock-up Period;

If the undersigned is an officer or director of the Company, (i) the undersigned agrees that the foregoing provisions shall be equally applicable to any issuer-directed Stock, as referred to in FINRA Rule 5131(d)(2)(A) that the undersigned may purchase in the Offering pursuant to an allocation of Stock that is directed in writing by the Company, (ii)  each of Barclays Capital Inc. and Credit Suisse Securities (USA) LLC agrees that, at least three business days before the effective date of any release or waiver of the foregoing restrictions in connection with a transfer of shares of Common Stock, Barclays Capital Inc. and Credit Suisse Securities (USA) LLC will notify the Company of the impending release or waiver and (iii) the Company has agreed in the Underwriting Agreement to announce the impending release or waiver by issuing a press release through a major news service (as referred to in FINRA Rule 5131(d)(2)(B)) at least two

Exhibit A-3

business days before the effective date of the release or waiver.  Any release or waiver granted by Barclays Capital Inc. and Credit Suisse Securities (USA) LLC hereunder to any such officer or director shall only be effective two business days after the publication date of such press release.  The provisions of this paragraph will not apply if both (a) the release or waiver is effected solely to permit a transfer not for consideration, and (b) the transferee has agreed in writing to be bound by the same terms described in this letter that are applicable to the transferor, to the extent and for the duration that such terms remain in effect at the time of the transfer.

In furtherance of the foregoing, the Company and its transfer agent are hereby authorized to decline to make any transfer of securities if such transfer would constitute a violation or breach of this Lock-Up Letter Agreement.

The undersigned understands that the Company and the Underwriters will proceed with the Offering in reliance on this Lock-Up Letter Agreement.

Whether or not the Offering actually occurs depends on a number of factors, including market conditions.  Any Offering will only be made pursuant to an Underwriting Agreement, the terms of which are subject to negotiation between the Company, the Selling Stockholders named therein and the Underwriters.

This Lock-Up Letter Agreement shall automatically terminate upon the earliest to occur, if any, of (1) the termination of the Underwriting Agreement before the sale of any Stock to the Underwriters, (2) September 30, 2016, in the event that the Underwriting Agreement has not been executed by that date, (3) the filing by the Company of an application to withdraw the registration statement related to the Offering and (4) the Underwriters notifying the Company, or the Company notifying the Underwriters, in writing, prior to the execution of the Underwriting Agreement, that it has determined not to proceed with the Offering.

[Signature page follows]

Exhibit A-4

The undersigned hereby represents and warrants that the undersigned has full power and authority to enter into this Lock-Up Letter Agreement and that, upon request, the undersigned will execute any additional documents necessary in connection with the enforcement hereof.  Any obligations of the undersigned shall be binding upon the heirs, personal representatives, successors and assigns of the undersigned.

	Very truly yours,
	By:
		Name:
		Title:
Dated:

Exhibit A-5

EXHIBIT B

Form of Press Release

AdvancePierre Foods Holdings, Inc.
[·], 2016

AdvancePierre Foods Holdings, Inc., (the “Company”) announced today that Barclays Capital Inc. and Credit Suisse Securities (USA) LLC, joint book-running managers in the Company’s recent public sale of [·] shares of common stock are [waiving] [releasing] a lock-up restriction with respect to [·] shares of the Company’s common stock held by [certain officers or directors] [an officer or director](1) of the Company.  The [waiver] [release] will take effect on [insert date], and the shares may be sold or otherwise disposed of on or after such date.

This press release is not an offer for sale of the securities in the United States or in any other jurisdiction where such offer is prohibited, and such securities may not be offered or sold in the United States absent registration or an exemption from registration under the United States Securities Act of 1933, as amended.

(1)  If Barclays Capital Inc. and Credit Suisse Securities (USA) LLC so request in writing (either in or accompanying the notice to the Company about the impending release or waiver), the Company will include in the press release such other information as Barclays Capital Inc. and Credit Suisse Securities (USA) LLC may require regarding the circumstances of the release or waiver and/or the identity of the officer(s) or director(s) with respect to which the release or waiver applies.

Exhibit C

ADVANCEPIERRE FOODS HOLDINGS, INC.

Chief Financial Officer’s Certificate

[·], 2016

Reference is hereby made to that certain Underwriting Agreement dated as of [·], 2016 (the “Underwriting Agreement”), among AdvancePierre Foods Holdings, Inc. (the “Company”) and Barclays Capital Inc., Credit Suisse Securities (USA) LLC and Morgan Stanley & Co. LLC, as representatives of the several underwriters named in Schedule I to the Underwriting Agreement (the “Underwriters”), in connection with the sale of shares of the Company’s common stock, par value $0.01 per share (the “Securities”), as described in the [preliminary prospectus, dated [  ], 2016 (the “Preliminary Prospectus”)]/[final prospectus, dated [  ], 2016 (the “Final Prospectus”)]. Capitalized terms used herein but not defined herein shall have the meanings ascribed to them in the Underwriting Agreement.

In connection with the foregoing, I, Michael B. Sims, the Chief Financial Officer, Vice President, Treasurer and Secretary of the Company, have been asked to deliver this officer’s certificate to the Underwriters.

I hereby certify in my capacity as the Chief Financial Officer of the Company, on behalf of the Company and not in a personal capacity, as of the date hereof that:

1.I am responsible for the Company’s financial accounting matters and am familiar with the internal accounting records of the Company.

2.For the period from May 28, 2016 to [·], 2016, there were no decreases, as compared to the corresponding period in the preceding year, in net sales of the Company [, except as follows:]

	Net Sales
May 28, 2016 to [·], 2016
May 30, 2015 to [·], 2015

3.The calculation of net sales of the Company for the period from May 28, 2016 to [·], 2016 was prepared on a basis substantially consistent with (x) net sales of the Company for the period from May 30, 2015 to [·], 2015 and (y) the Company’s historical accounting methodology for calculating net sales for periods other than annual or quarterly periods.

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4.[I have reviewed the selected financial information included in the [“Recent Developments”] section of the [Preliminary Prospectus]/[Final Prospectus] and to my knowledge such financial information is presented fairly, in all material respects. Such selected financial information (a) has been prepared on a basis consistent with that of the audited financial statements contained in the [Preliminary Prospectus]/[Final Prospectus], (b) has been prepared on a basis consistent with the financial information for the corresponding periods in the prior fiscal year and (c) has been extracted from the books and records of the Company and derived from internal controls and procedures that are used to prepare the audited financial statements and unaudited quarterly reports of the Company.]

5.I have supervised the compilation of and reviewed the circled information contained on the attached Exhibit A, which is included in the [Preliminary Prospectus]/[Final Prospectus]. I have supervised the performance of the following procedures with respect to the circled information identified on Exhibit A, which were applied as indicated with respect to the capital letters as explained below, and, to my knowledge, such information is accurate in all material respects:

(A)[Recomputed and/or compared to corresponding amounts appearing in the accounting books and records for the periods indicated of the Company and its consolidated subsidiaries and found the amounts (as adjusted for rounding, where appropriate) to be in agreement.

(B)Compared and agreed (as adjusted for rounding, where appropriate), or recalculated and agreed (as adjusted for rounding, where appropriate), to a schedule or report derived from the Company’s accounting records, and compared the amounts on the schedule or report to corresponding amounts appearing in the accounting books and records and found the amounts to be in agreement (as adjusted for rounding, where appropriate).]

6.This officer’s certificate is to assist the Underwriters in conducting and documenting their investigation of the affairs of the Company in connection with the offer and sale of the Securities.

[Signature page follows]

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IN WITNESS WHEREOF, I have hereunto signed my name on the date first written above.

Name:	Michael B. Sims
Title:	Chief Financial Officer, Vice President, Treasurer and Secretary

[Signature Page to CFO’s Certificate]

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ANNEX A

[Form of] Waiver of Lock-up

[Letterhead of Barclays Capital Inc. and Credit Suisse Securities (USA) LLC]

AdvancePierre Foods Holdings, Inc.

Public Offering of Common Stock

[Insert date]

[Insert Name and Address of

Officer or Director

Requesting Waiver]

Dear Mr./Ms. [Insert Name]:

This letter is being delivered to you in connection with the offering by AdvancePierre Foods Holdings, Inc. (the “Company”) of [·] shares of common stock, $0.01 par value (the “Common Stock”), of the Company and the lock-up letter agreement dated [·], 2016 (the “Lock-Up Agreement”), executed by you in connection with such offering, and your request for a [waiver] [release] dated [insert date] with respect to [·] shares of Common Stock (the “Shares”).

Barclays Capital Inc. and Credit Suisse Securities (USA) LLC as Representatives of the Underwriters (as defined in the Lock-Up Agreement) hereby agree (subject to the proviso below) to [waive] [release] the transfer restrictions set forth in the Lock-Up Agreement, but only with respect to the Shares, effective [insert date] (the “Anticipated Effective Date”)(2), provided, however, that such [waiver] [release] is expressly conditioned on the Company announcing the impending [waiver] [release] by issuing a press release through a major news service at least two business days before the Anticipated Effective Date.  This letter will serve as notice to the Company of the impending [waiver] [release].

Except as expressly [waived] [released] hereby, the Lock-Up Agreement shall remain in full force and effect.

Yours very truly,

cc:  AdvancePierre Foods Holdings, Inc.

(2)Date of anticipated waiver or release not to be less than three business days after the date of this letter.

EX-5.1

Exhibit 5.1

[Letterhead of Skadden, Arps, Slate, Meagher & Flom LLP]

June 24, 2016

AdvancePierre Foods Holdings, Inc.
9987 Carver Road
Blue Ash, Ohio 45242

Re:AdvancePierre Foods Holdings, Inc.
Registration Statement on Form S-1

Ladies and Gentlemen:

We have acted as special counsel to AdvancePierre Foods Holdings, Inc., a Delaware corporation (the “Company”), in connection with the initial public offering by the Company of shares of common stock, par value $0.01 per share (“Common Stock”), of the Company (the “Company Shares”), and the resale by the Selling Stockholders (as defined below) of shares of Common Stock (including shares of Common Stock subject to an over-allotment option) (the “Secondary Shares”).  The Company Shares and the Secondary Shares are collectively referred to herein as the “Shares”.

This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act of 1933, as amended (the “Securities Act”).

In rendering the opinions stated herein, we have examined and relied upon the following:

(a)           the registration statement on Form S-1 (File No. 333-210674) of the Company relating to the Shares filed on April 11, 2016 with the Securities and Exchange Commission (the “Commission”) under the Securities Act and Pre-Effective Amendments No. 1 and No. 3 thereto (such registration statement, as so amended, being hereinafter referred to as the “Registration Statement”);

(b)           the form of the Underwriting Agreement (the “Underwriting Agreement”) proposed to be entered into among the Company, Barclays Capital Inc., Credit Suisse Securities (USA) LLC and Morgan Stanley & Co. LLC, as representatives of the several Underwriters named therein (the “Underwriters”), and the Selling Stockholders named therein (the “Selling Stockholders”), relating to the sale by the Company to the Underwriters of the Company Shares and the sale by the Selling Stockholders to the Underwriters of the Secondary Shares, filed as Exhibit 1.1 to the Registration Statement;

(c)           an executed copy of a certificate of Michael B. Sims, Chief Financial Officer, Vice President, Treasurer and Secretary of the Company, dated the date hereof (the “Secretary’s Certificate”);

(d)           a copy of the Company’s Certificate of Incorporation, as certified by the Secretary of State of the State of Delaware as of June 13, 2016, and certified pursuant to the Secretary’s Certificate;

(e)           a copy of the Company’s By-Laws, as amended and in effect as of the date hereof, certified pursuant to the Secretary’s Certificate;

(f)            the form of the Company’s Amended and Restated Certificate of Incorporation (the “Amended and Restated Certificate of Incorporation”), to be in effect immediately prior to the consummation of the offering of the Shares and filed as Exhibit 3.4 to the Registration Statement;

(g)           the form of the Company’s Amended and Restated By-Laws (the “Amended and Restated By-Laws”), to be in effect immediately prior to the consummation of the offering of the Shares and filed as Exhibit 3.5 to the Registration Statement; and

(h)           copies of certain resolutions of the Board of Directors of the Company, adopted on March 12, 2016 and June 16, 2016, certified pursuant to the Secretary’s Certificate.

We have also examined originals or copies, certified or otherwise identified to our satisfaction, of such records of the Company and the Selling Stockholders and such agreements, certificates and receipts of public officials, certificates of officers or other representatives of the Company and the Selling Stockholders and others, and such other documents as we have deemed necessary or appropriate as a basis for the opinions stated below.

In our examination, we have assumed the genuineness of all signatures, including endorsements, the legal capacity and competency of all natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as facsimile, electronic, certified or photostatic copies, and the authenticity of the originals of such copies.  As to any facts relevant to the opinions stated herein that we did not independently establish or verify, we have relied upon statements and representations of officers and other representatives of the Company and the Selling Stockholders and others and of public officials.

We do not express any opinion with respect to the laws of any jurisdiction other than the General Corporation Law of the State of Delaware (the “DGCL”), and to the extent that judicial or regulatory orders or decrees or consents, approvals, licenses, authorizations, validations, filings, recordings or registrations with governmental authorities are relevant, to those required under such laws (all of the foregoing being referred to as “Opined on Law”).  We do not express any opinion as to the effect of any non-Opined on Law on the opinions stated herein.

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Based upon the foregoing and subject to the qualifications and assumptions stated herein, we are of the opinion that:

1.             When (i) the Registration Statement, as finally amended (including all necessary post-effective amendments), has become effective under the Securities Act; (ii) the Underwriting Agreement has been duly executed and delivered by the Company and duly authorized, executed and delivered by the other parties thereto; (iii) a duly appointed committee of the Board of Directors of the Company has determined the price per share of the Company Shares; and (iv) the Company Shares are delivered in accordance with the Underwriting Agreement upon payment of the agreed upon consideration therefor, the Company Shares will be duly authorized by all requisite corporate action on the part of the Company under the DGCL and validly issued, fully paid and nonassessable, provided that the consideration therefor is not less than $0.01 per Company Share.

2.             The Secondary Shares being sold by the Selling Stockholders have been duly authorized by all requisite corporate action on the part of the Company under the DGCL and are validly issued, fully paid and nonassessable.

We hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement.  We also hereby consent to the reference to our firm under the heading “Legal Matters” in the prospectus forming part of the Registration Statement. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission.

Very truly yours,

/s/ Skadden, Arps, Slate, Meagher & Flom LLP

JK

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EX-10.1

Exhibit 10.1

THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT

THIS THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated [   ], 2016, is made and entered into by and among AdvancePierre Foods Holdings, Inc., a Delaware corporation formerly known as Pierre Foods Holding Corporation (the “Company”), OCM APFH Holdings, LLC, a Delaware limited liability company (“Oaktree APFH”), OCM Principal Opportunities Fund IV Delaware, L.P., a Delaware limited partnership (together with Oaktree APFH, “Oaktree”) and the Persons listed on Schedule A (the “Other Stockholders”), including all other Persons who become a party hereto and are added to Schedule A from time to time.  All capitalized terms used but not otherwise defined herein shall have the meaning ascribed to them in Section 1 hereto.

R E C I T A L S:

WHEREAS, the Company, Oaktree and the Other Stockholders previously entered into that certain Second Amended and Restated Registration Rights Agreement, dated September 30, 2010 (the “Second A&R Agreement”), establishing rights to registration under the Securities Act (as defined below) of Registrable Securities (as defined below);

WHEREAS, the Company is undertaking an underwritten initial public offering (“IPO”) of shares of Common Stock (as defined below); and

WHEREAS, in connection with the completion of the IPO, the Company, Oaktree and the Other Stockholders desire to amend and restate the Second A&R Agreement as set forth herein.

NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

1.Certain Definitions.  As used in this Agreement, the following shall have the following respective meanings:

“Advance Stockholders” means the Persons listed on Schedule A under the heading “Advance Stockholders”  and shall include any of their respective Affiliates or transferees, in each case, to whom they transfer shares of Company Stock and rights hereunder in a manner permitted hereby.

“Adverse Disclosure” shall mean the public disclosure of material non-public information, which, in the good faith judgment of the Board, after consultation with counsel to the Company, (i) would be required to be made in any Registration Statement or prospectus in order for the applicable Registration Statement or prospectus not to contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein in light of the circumstances under which they were made not misleading, (ii) would not be required to be made at such time if the

Registration Statement or prospectus were not being filed and (iii) as to which the Company has a bona fide business purpose for not publicly making.

“Affiliate” shall mean, with respect to any Person, any person that, directly or indirectly, controls, is controlled by or is under common control with such Person.  For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlled by” and “under common control with”), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities or by contract or otherwise.

“Agreement” shall have the meaning set forth in the preamble.

“Board” shall mean the Board of Directors of the Company.

“Common Stock” shall mean the outstanding shares of Common Stock, par value $0.01 per share, of the Company.

“Company” shall have the meaning set forth in the preamble.

“Company Registration” shall have the meaning set forth in Section 2.2(a).

“Company Stock” shall mean the equity securities of the Company, including the Common Stock and any and all shares in the capital of the Company or any successor or assign of the Company (whether by merger, consolidation, sale of assets or otherwise) which may be issued in respect of, in exchange for, or in substitution for the Company Stock, by combination, recapitalization, reclassification, merger, consolidation, conversion or otherwise.

“Demand Registration” shall have the meaning set forth in Section 2.1(a).

“Demanding Stockholder” shall have the meaning set forth in Section 2.1(a).

“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended from time to time, and the rules and regulations promulgated pursuant thereto.

“Form S-3” shall mean such form under the Securities Act as in effect on the date hereof or any registration form under the Securities Act subsequently adopted by the SEC which permits inclusion or incorporation of substantial information by reference to other documents filed by the Company with the SEC.

“Governmental Authority” shall mean any government, court, administrative agency or commission or other governmental agency, authority or instrumentality, domestic or foreign, of competent jurisdiction.

“IPO” shall have the meaning set forth in the recitals.

“Majority Participants” shall have the meaning set forth in Section 2.3(a).

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“Oaktree” shall have the meaning set forth in the preamble and shall include any of its Affiliates to whom it transfers shares of Company Stock and rights hereunder.

“Other Stockholder” shall have the meaning set forth in the preamble and shall include any of its Affiliates or transferees, in each case, to whom it transfers shares of Company Stock and rights hereunder in a manner permitted hereby.

“Person” shall mean any individual, firm, corporation, partnership, limited liability company, trust, joint venture, Governmental Authority or other entity, and shall include any successor (by merger or otherwise) of such entity.

“Piggy-Back Registration” shall have the meaning set forth in Section 2.2(a).

“Pro Rata” shall have the meaning set forth in Section 2.1(c).

“prospectus” shall mean the prospectus included in any Registration Statement (including a prospectus that discloses information previously omitted from a prospectus filed as part of an effective Registration Statement in reliance upon Rule 430A promulgated under the Securities Act), as amended or supplemented by any prospectus supplement or any issuer free writing prospectus (as defined in Rule 433 under the Securities Act), with respect to the offering of any portion of the Registrable Securities covered by such Registration Statement, and all other amendments and supplements to the prospectus, including post-effective amendments, and all material incorporated by reference or deemed to be incorporated by reference in such prospectus.

“register,” “registered,” and “Registration” refer to a registration effected by preparing and filing a registration statement or similar document in compliance with the Securities Act, and the declaration or ordering of effectiveness of such registration statement or document.

“Registrable Securities” shall mean (i) any Common Stock now or hereafter held by the Stockholders, and (ii) any Common Stock issued as (or issuable upon the conversion or exercise of any warrant, right or other security which is issued as) a dividend or other distribution with respect to, or in exchange for or in replacement of the shares referenced in (i) above, excluding in all cases, however, any Registrable Securities sold by a Person in a transaction in which his, hers or its rights under Section 2 are not assigned or any Registrable Securities sold pursuant to a Registration Statement or sold pursuant to Rule 144.

“Registrable Securities then outstanding” shall mean the Common Stock outstanding (on a fully-diluted basis, including those underlying options and other convertible securities to the extent they are “in the money” and vested) which are Registrable Securities.

“Registration Statement” shall mean a registration statement filed by the Company with the SEC in compliance with the Securities Act for a public offering and sale of Common Stock or other securities of the Company (other than a registration statement on Form S-4 or S-8 (or any successor or substantially similar form) or in

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connection with (i) an employee stock option, stock purchase or compensation plan or securities issued or issuable pursuant to any such plan, (ii) a dividend reinvestment plan or (iii) an offering of debt that is convertible into equity securities of the Company).

“Rule 144” shall have the meaning set forth in Section 2.9.

“sale,” “sell,” or “sold” shall mean and include any sale, gift, or other form of inter vivos transfer, voluntary or involuntary, including any dividend or distribution thereof and the pledging of any such stock.

“SEC” shall mean the Securities and Exchange Commission.

“Second A&R Agreement” shall have the meaning set forth in the recitals.

“Securities Act” shall mean the Securities Act of 1933, as amended from time to time, and the rules and regulations promulgated pursuant thereto.

“Shelf Registration” shall have the meaning set forth in Section 2.1(a).

“Stockholder” shall mean Oaktree and the Other Stockholders.

“Underwriter” shall mean a securities dealer who purchases any Registrable Securities as principal in an underwritten offering and not as part of such dealer’s market-making activities.

“Violation” shall have the meaning set forth in Section 2.8(b).

2.Registration Rights.

2.1Demand Registration.

(a)At any time after the date hereof, Oaktree may make a written demand for registration under the Securities Act of all or part of their Registrable Securities (a “Demand Registration”); any Demand Registration shall specify the number of shares of Registrable Securities proposed to be sold and the intended method(s) of distribution thereof (each stockholder making a Demand Registration is referred to herein individually as a “Demanding Stockholder” and, collectively, the “Demanding Stockholders”).  As soon as practicable, and in any event within 60 days after the receipt of such request, the Company shall use its reasonable best efforts to file a Registration Statement to effect the registration under the Securities Act of the Registrable Securities which the Company has been requested to register by the Demanding Stockholders.  Each Registration Statement prepared at the request of a Demanding Stockholder shall be effected on such form as reasonably requested by such Demanding Stockholder, including by a “shelf” registration that permits sales on a continuous or delayed basis pursuant to Rule 415 under the Securities Act on Form S-3 (a “Shelf Registration”) if so requested by such Demanding Stockholder and the Company is then eligible to effect a Shelf Registration.  If permitted under the Securities Act, such Shelf Registration will be one that is automatically effective upon filing.

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(b)If the Demanding Stockholders intend to distribute the Registrable Securities covered by their demand by means of an underwriting, the Demanding Stockholders shall so advise the Company as a part of their demand made pursuant to Section 2.1(a).  The Underwriter or Underwriters will be selected by Oaktree.  Oaktree shall (together with the Company as provided in Section 2.3(e)) enter into an underwriting agreement, in usual and customary form and reasonably acceptable to Oaktree, with the Underwriter or Underwriters of such offering.

(c)Notwithstanding any other provision of this Section 2.1, if the Underwriter advises the Company in writing that marketing factors require a limitation of the number of Registrable Securities to be underwritten, then the Company shall so advise all holders of Registrable Securities which would otherwise be underwritten pursuant hereto, and shall allocate the number of Registrable Securities to be underwritten among all Stockholders who have indicated an intention to participate in the underwriting pro rata in accordance with the number of Registrable Securities that each such Stockholder has requested to be included in such Registration, regardless of the number of Registrable Securities held by each such Stockholder (such proportion is referred to herein as “Pro Rata”).

(d)Notwithstanding the other provisions of this Agreement, if the Company shall furnish to the Demanding Stockholders a certificate signed by the Chief Executive Officer of the Company stating that, in the good faith judgment of the Board, either (i) the filing, initial effectiveness or continued use of a registration statement would be seriously detrimental to the Company and its stockholders for such registration statement and it is therefore essential to delay the filing or initial effectiveness of, or suspend the use of, such registration statement, or (ii) the filing or initial effectiveness of a Demand Registration, or the continued use of any Registration, at any time would require the Company to make an Adverse Disclosure or would require the inclusion in such registration statement of financial statements that are unavailable to the Company for reasons beyond the Company’s control, the Company shall, upon promptly delivering such a certificate signed by the Chief Executive Officer of the Company to the Stockholders otherwise participating in such Registration, have the right to delay the filing or initial effectiveness of, or suspend the use of, such registration statement for the shortest possible period of time determined in good faith by the Board to be necessary for such purpose.  In no event shall the Company be permitted to (A) delay the filing or initial effectiveness of, or suspend the use of, a registration statement pursuant to this Section 2.1(d) for a period in excess of 90 days, or (B) exercise its rights under this Section 2.1(d) more than once in any 12 month period.  In the event the Company exercises its rights under this Section 2.1(d), Oaktree agrees to suspend, immediately upon its receipt of notice referred to above, its use of the prospectus relating to the Registration in connection with any sale or offer to sell Registrable Securities.

(e)Notwithstanding the other provisions of this Section 2.1, the Company shall not be obligated to effect, or to take any action to effect, any Registration pursuant to this Section 2.1 during the period starting with the date 60 days prior to the Company’s good faith estimate of the date of filing of, and ending on a date 180 days after the effective date of, a Registration subject to Section 2.2 hereof (including a

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Registration pursuant to this Section 2.1); provided that the Company is actively employing in good faith its reasonable best efforts to cause such registration statement to become effective.

(f)Demanding Stockholders may elect to withdraw from such offering by giving written notice to the Company and the Underwriter or Underwriters of their request to withdraw prior to the effectiveness of the Registration Statement filed with the SEC with respect to such Demand Registration.  Subject to compliance with the other provisions of this Agreement, the Company (whether on its own determination or as the result of a withdrawal by the Demanding Stockholders) may withdraw a Registration Statement pursuant to a Demand Registration at any time prior to the effectiveness of the Registration Statement.  Notwithstanding any such withdrawal, the Company shall pay all expenses incurred by the holders of Registrable Securities as provided in Section 2.5.

2.2Piggy-Back Registration.

(a)If, at any time after the date hereof, the Company proposes to register any of its stock or other securities under the Securities Act (including in connection with a Demand Registration pursuant to Section 2.1 hereof) in connection with the public offering of such securities solely for cash, whether for its own account or for the account of any other Person (other than a registration relating solely to the sale of securities to participants in a Company stock plan, a registration on any form which does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities or a registration in which the only Company Stock being registered is Company Stock issuable upon conversion of debt or equity securities which are also being registered) (such registration, a “Company Registration”), the Company shall (i) promptly give each Stockholder written notice of such registration (but in no event less than 20 days prior to the anticipated filing date), which notice shall describe the amount and type of securities to be included in such offering, the intended method(s) of distribution, and the name of the proposed Underwriter or Underwriters, if any, of the offering, (ii) offer to the holders of Registrable Securities (other than Oaktree if Oaktree is a Demanding Stockholder as to such registration) in such notice the opportunity to register the sale of such number of Registrable Securities as such holders may request in writing within ten (10) days following receipt of such notice (a “Piggy-Back Registration”), and (iii) subject to the provisions of Sections 2.4 and 2.6 (if applicable), use its reasonable best efforts to include within such Registration Statement all of the Registrable Securities that each such Stockholder has requested to be registered.

(b)Any Stockholder may elect to withdraw its request for inclusion of Registrable Securities in any Piggy-Back Registration by giving written notice to the Company of such request to withdraw prior to the effectiveness of the Registration Statement.  The Company (whether on its own determination or as the result of a withdrawal by Persons making a demand pursuant to written contractual obligations) may withdraw (or postpone the filing of) a registration statement at any time prior to the effectiveness of the Registration Statement.  Notwithstanding any such withdrawal, the

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Company shall pay all expenses incurred by the holders of Registrable Securities in connection with such Piggy-Back Registration as provided in Section 2.5.

(c)In connection with any Shelf Registration (whether pursuant to Section 2.1 or at the initiative of the Company), a Stockholder may exercise “piggy-back” rights in the manner described in this Agreement to have included in such takedown Registrable Securities held by them that are registered on such shelf Registration Statement.

2.3Obligations of the Company.  Whenever required under this Section 2 to take action to effect the registration of any Registrable Securities, the Company shall, as expeditiously as reasonably possible:

(a)Prepare and file with the SEC a registration statement with respect to such Registrable Securities, use its best efforts to cause such Registration Statement to become effective and, upon the request of the holders of a majority of the Registrable Securities registered thereunder (the “Majority Participants”), use its best efforts to keep such Registration Statement effective for a period of up to 120 days or, if shorter, until the distribution contemplated in the Registration Statement has been completed; provided, however, that such 120-day period shall be extended by the number of days during the period (i) the Company suspends the use of such a Registration Statement pursuant to Section 2.1(d), (ii) required to prepare a prospectus supplement or amendment pursuant to Section 2.3(f), (iii) the Stockholders refrain from selling any securities included in such Registration at the request of an Underwriter of Common Stock, or other securities of the Company, and (iv) in the case of any Shelf Registration, as is necessary to keep the Registration Statement effective until all such Registrable Securities are sold, provided that Rule 415, or any successor rule under the Securities Act, permits an offering on a continuous or delayed basis, and provided further that applicable rules under the Securities Act governing the obligation to file a post-effective amendment permit, in lieu of filing a post-effective amendment which (A) includes any prospectus required by Section 10(a)(3) of the Securities Act or (B) reflects facts or events representing a material or fundamental change in the information set forth in the Registration Statement, the incorporation by reference of information required to be included in (A) and (B) above to be contained in periodic reports filed pursuant to Section 13 or 15(d) of the Exchange Act in the Registration Statement.  If immediately prior to the third (3rd) anniversary of the initial effective date of any Shelf Registration Statement filed pursuant to Section 2.1(a), at least 20% of the Registrable Securities under such Shelf Registration Statement remain unsold, the Company will, prior to such third (3rd) anniversary, file a new shelf Registration Statement relating to such unsold Registrable Securities and will use its best efforts to cause such Registration Statement to be declared effective within 180 days after such third anniversary, and will take all other action necessary or appropriate to permit the public offering and sale of the remaining Registrable Securities to continue as contemplated in the expired Shelf Registration.

(b)Prepare and file with the SEC such amendments, supplements and free writing prospectuses to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the

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provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement, including, without limitation, the filing of a prospectus supplement pursuant to Rule 424(b)(7) under the Securities Act with respect to an effective shelf Registration Statement.

(c)Furnish to the holders of Registrable Securities covered by such registration statement such numbers of copies of a prospectus, including a preliminary prospectus and any “issuer free writing prospectus” (as defined in Rule 433 under the Securities Act), in conformity with the requirements of the Securities Act, and such other documents as the Majority Participants may reasonably request in order to facilitate the disposition of Registrable Securities owned by them.

(d)Use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities or Blue Sky laws of such jurisdictions as shall be reasonably requested by the Majority Participants; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business in any such states or jurisdictions.

(e)In the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the Underwriter or Underwriters of such offering.  Each Stockholder participating in such underwriting shall also enter into and perform its obligations under such an agreement.

(f)Notify each holder of Registrable Securities covered by such Registration Statement at any time when a prospectus relating thereto is required to be delivered under the Securities Act of the happening of any event as a result of which the prospectus included in such Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and, at the request of any such holder, promptly prepare and furnish to such holder a reasonable number of copies of a supplement or amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing.

(g)Cause all such Registrable Securities registered hereunder to be listed on each securities exchange on which similar securities issued by the Company are then listed.

(h)Provide a transfer agent and registrar for all Registrable Securities registered pursuant hereto and a CUSIP number for all such Registrable Securities, in each case not later than the effective date of such Registration.

(i)Execute and deliver all instruments and documents and take such other actions and obtain such certificates and opinions as a Stockholder of the Registrable

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Securities being sold reasonably request in order to effect a public offering of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the offering is an underwritten offering, (A) make such representations and warranties to the holders of such Registrable Securities and the Underwriters, if any, with respect to the business of the Company and its subsidiaries, and the Registration Statement and documents, if any, incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested, and (B) use its reasonable best efforts to furnish to the selling Stockholders and Underwriters of such Registrable Securities opinions and negative assurance letters of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) will be reasonably satisfactory to the managing Underwriters, if any), covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by any such Underwriters.

(j)At the request of any Stockholder requesting registration of Registrable Securities pursuant to this Section 2, cooperate with such Stockholder, the Underwriters, if any, and their respective counsel in connection with any filings required to be made with Financial Industry Regulatory Authority.

2.4Furnish Information.  It shall be a condition precedent to the obligations of the Company to take any action pursuant to this Section 2 with respect to the Registrable Securities of any selling Stockholder that such Stockholder shall furnish to the Company such information regarding itself, the Registrable Securities held by it, and the intended method of disposition of such securities as shall be required pursuant to the rules and regulations promulgated under the Securities Act to effect the registration of such Stockholder’s Registrable Securities.

2.5Expenses of Registration.  The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of Registrable Securities, including (without limitation) all registration, filing, listing and qualification fees for all shares to be sold (whether on account of the Company or others), printer’s and accounting fees relating or apportionable thereto and the fees and disbursements of counsel for the Company and of one counsel for the selling Stockholders selected by the Majority Participants, but excluding underwriting discounts and commissions relating to Registrable Securities and the fees and disbursements of the selling Stockholders other than those identified in this Section 2.5.

2.6Underwriting Requirements.

(a)In connection with any offering involving an underwriting of Common Stock, the Company shall not be required under Section 2.2 to include any of the Stockholders’ securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the Underwriters selected by it (or by other persons entitled to select the Underwriters), and then only in such quantity as

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the Underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company.

(b)In connection with any offering involving an underwriting of Common Stock, if the total amount of securities, including Registrable Securities, requested by the Stockholders to be included in such offering exceeds the amount of securities to be sold that the Underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, which the Underwriters determine in their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the participating Stockholders in proportion (as nearly as practicable) to the amount of securities of the Company proposed to be sold by each participating Stockholder or in such other proportions as shall be mutually agreed to by such Stockholders).

2.7Delay of Registration.  No Stockholder shall have any right to obtain or seek an injunction restraining or otherwise delaying any such Registration as the result of any controversy that might arise with respect to the interpretation or implementation of this Section 2.

2.8Indemnification.  In the event any Registrable Securities are included in a Registration Statement under this Section 2:

(a)To the extent permitted by law, the Company will indemnify and hold harmless each Stockholder (and in the event such Stockholder is a trust, the grantors, beneficiaries and trustees of such trust), the partners, officers and directors of each Stockholder, any underwriter (as defined in the Securities Act) for such Stockholder and each person, if any, who controls such Stockholder or such underwriter within the meaning of the Securities Act or the Exchange Act, against any losses, claims, damages, or liabilities (joint or several) to which they may become subject under the Securities Act or the Exchange Act or other federal or state securities law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon a Violation (as defined below) by the Company; and the Company will pay to each such Stockholder, partner, officer, director, underwriter or controlling person any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action; provided, however, that the indemnity agreement contained in this Section 2.8(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Stockholder, partner, officer, director, underwriter or controlling person of such Stockholder.

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(b)For purposes of this Section 2.8, a “Violation” shall mean any of the following statements, omissions or violations:  (i) any untrue statement or alleged untrue statement of a material fact contained in such Registration Statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, or any “issuer free writing prospectus” as such term is defined under Rule 433 under the Securities Act, or (ii) the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading.

(c)To the extent permitted by law, each selling Stockholder will indemnify and hold harmless the Company, each of its directors, each of its officers who has signed the Registration Statement, each person, if any, who controls the Company within the meaning of the Securities Act, any underwriter, any other stockholder of the Company selling securities in such Registration Statement and any controlling person of any such underwriter or other stockholder of the Company and any partner, director or officer of any other stockholder of the Company selling securities in such Registration Statement, against any losses, claims, damages, or liabilities (joint or several) to which any of the foregoing persons may become subject, under the Securities Act, the Exchange Act or other federal or state securities law insofar as such losses, claims, damages, or liabilities (or actions in respect thereto) arise out of or are based upon any Violation made by such Stockholder, in each case to the extent (and only to the extent) that such Violation occurs in reliance upon and in conformity with written information furnished by such Stockholder expressly for use in connection with such Registration; and each such Stockholder will pay any legal or other expenses reasonably incurred by any person intended to be indemnified pursuant to this Section 2.8(c), in connection with investigating or defending any such loss, claim, damage, liability, or action; provided, however, that the indemnity agreement contained in this Section 2.8(c) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without the consent of the applicable Stockholders, which consent shall not be unreasonably withheld, conditioned or delayed; provided that in no event shall any indemnity under this Section 2.8(c) exceed the net proceeds from the offering received by such Stockholder.

(d)Promptly after receipt by an indemnified party under this Section 2.8 of notice of the commencement of any action (including any governmental action), such indemnified party will, if a claim in respect thereof is to be made against any indemnifying party under this Section 2.8, deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties; provided, however, that an indemnified party (together with all other indemnified parties which may be represented without conflict by one counsel) shall have the right to retain one separate counsel, with the fees and expenses to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding.  The failure to deliver written notice to

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the indemnifying party within a reasonable time of the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 2.8, but the omission to so deliver written notice to the indemnifying party will not relieve it of any liability that it may have to any indemnified party otherwise than under this Section 2.8.

(e)If the indemnification provided for in this Section 2.8 is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, liability, claim, damage, or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party hereunder, shall, to the extent permitted by applicable law, contribute to the amount paid or payable by such indemnified party as a result of such loss, liability, claim, damage, or expense in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and of the indemnified party on the other in connection with the Violation or Violations that resulted in such loss, liability, claim, damage, or expense as well as any other relevant equitable considerations.  The relative fault of the indemnifying party and of the indemnified party shall be determined by reference to, among other things, whether the Violation relates to information supplied by the indemnifying party or by the indemnified party and the parties’ relative intent, knowledge, access to information, and opportunity to correct or prevent such Violation; provided that in no event shall any contribution by a Stockholder hereunder exceed the net proceeds from the offering received by such Stockholder.  No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.

(f)Notwithstanding the foregoing, to the extent that the provisions on indemnification and contribution contained in an underwriting agreement entered into in connection with the underwritten public offering are in conflict with the foregoing provisions, the provisions in the underwriting agreement shall control.

(g)The obligations of the Company and the Stockholders under this Section 2.8 shall survive the completion of any offering of Registrable Securities in a Registration Statement under this Section 2, and otherwise.  No indemnifying party, in the defense of any such claim or litigation, shall, except with the consent of each indemnified party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect of such claim or litigation.

2.9Reports under the Exchange Act.  With a view to making available to holders of Registrable Securities the benefits of Rule 144 promulgated under the Securities Act (“Rule 144”) and any other rule or regulation of the SEC that may at any time permit a holder of Registrable Securities to sell securities of the Company to the public without registration or pursuant to a Registration on Form S-3, the Company agrees to:

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(a)make and keep current public information available, as those terms are understood and defined in Rule 144, at all times after 90 days after the effective date of the first Registration Statement filed by the Company;

(b)file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and the Exchange Act;

(c)furnish to each holder of Registrable Securities, so long as it owns any Registrable Securities, forthwith upon request (i) a written statement by the Company that it has complied with the reporting requirements of Rule 144 (at any time after 90 days after the effective date of the first Registration Statement filed by the Company), the Securities Act and the Exchange Act (at any time after it has become subject to such reporting requirements), or that it qualifies as a registrant whose securities may be resold pursuant to Form S-3 (at any time after it so qualifies), (ii) a copy of the most recent annual or quarterly report of the Company and such other reports and documents so filed by the Company, and (iii) such other information as may be reasonably requested in availing holders of Registrable Securities of any rule or regulation of the SEC which permits the selling of any such securities without Registration or pursuant to such form; and

(d)take such further action as a holder of Registrable Securities may reasonably request to make available adequate current public information with respect to the Company meeting the current public information requirements of subsection (c) of Rule 144 to the extent required to enable holders of Registrable Securities to sell Registrable Securities without registration under the Securities Act within the limitation of the exemptions provided by (i) Rule 144, or (ii) any similar rule or regulation hereafter adopted by the SEC.  Upon the request of a holder of Registrable Securities, the Company will deliver to such holder of Registrable Securities a written statement as to whether it has complied with such information and requirements.

2.10Assignment of Registration Rights.  Any Stockholder or an Affiliate of any Stockholder may assign any or all of its rights to cause the Company to register Registrable Securities pursuant to this Section 2 to any transferee of Registrable Securities.  In the event that any of the Stockholders or an Affiliate of any of the Stockholders assigns all or any of the rights of the Stockholders or such Affiliate to cause the Company to register Registrable Securities, or to participate in a Registration, pursuant to this Section 2, such transferee shall execute and deliver to the Company such documentation deemed necessary by the Company to cause such transferee to be bound by the terms of this Agreement and the Company shall amend this Agreement in a manner reasonably acceptable to Oaktree and, to the extent their rights are adversely affected, the holders of a majority of the Registrable Securities, if any, held by, the Advance Stockholders, to provide for the allocation of rights to any such transferees of Registrable Securities.

2.11Limitations on Subsequent Registration Rights.  From and after the date of this Agreement, the Company shall not, (i) without the prior written consent of Oaktree, enter into any agreement with any holder or prospective holder of any securities of the

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Company which would conflict with the rights of Oaktree under this Agreement, or (ii) without the prior written consent of the holders of a majority of the Registrable Securities, if any, held by the Advance Stockholders, enter into any agreement with any holder or prospective holder of any securities of the Company which would conflict with the rights of the Advance Stockholders under this Agreement.

2.12“Market Stand-Off” Agreement.  The Company and each Stockholder hereby agree that, during the period of duration specified (not to exceed 180 days) by the Company and an Underwriter, in connection with an underwritten public offering of Registrable Securities, it shall not, to the extent requested by the Company and such Underwriter, directly or indirectly sell, offer to sell, contract to sell (including, without limitation, any short sale), grant any option to purchase or otherwise transfer or dispose of (other than to donees who agree to be similarly bound and other than to Affiliates) any securities of the Company held by it at any time during such period except Common Stock included in such Registration; provided, however, that all officers and directors of the Company enter into similar agreements; provided, further, however, that no Stockholder shall be subject to a period longer than that applicable to the Company’s officers and directors.

In order to enforce the foregoing covenant, the Company may impose stop-transfer instructions with respect to the Registrable Securities of each Stockholder (and the shares or securities of every other person subject to the foregoing restriction) until the end of such period.

Notwithstanding the foregoing, the obligations described in this Section 2.12 shall not apply to a registration relating solely to employee benefit plans on Form S-8 or similar forms which may be promulgated in the future, or a registration relating solely to a Commission Rule 145 transaction on Forms S-4, F-4, N-14 or similar forms which may be promulgated in the future.

2.13Termination of Registration Rights.  No Stockholder shall be entitled to exercise any right provided for in this Section 2 as of such date that all shares of Registrable Securities held or entitled to be held upon conversion by such Stockholder may immediately be sold without restriction under Rule 144 during any subsequent 90-day period.

3.Miscellaneous.

3.1Governing Law and Forum.

(a)This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware (without reference to the choice of laws principles thereof).

(b)The Company and the Stockholders hereby agree and consent to be subject to the exclusive jurisdiction of the Chancery Court of Delaware and, in the absence of such jurisdiction, the United States District Court for the District of Delaware and, in the absence of such federal jurisdiction, the parties consent to be subject to the

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exclusive jurisdiction of any Delaware state court sitting in New Castle County and hereby waive the right to assert the lack of personal or subject matter jurisdiction or improper venue in connection with any such suit, action or other proceeding.  In furtherance of the foregoing, each of the parties (i) waives the defense of inconvenient forum, (ii) agrees not to commence any suit, action or other proceeding arising out of this Agreement or any transactions contemplated hereby other than in any such court, and (iii) agrees that a final judgment in any such suit, action or other proceeding shall be conclusive and may be enforced in other jurisdictions by suit or judgment or in any other manner provided by law.

(c)THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT SUCH PARTIES MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY SUIT OR ACTION ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.  EACH PARTY HEREBY CERTIFIES THAT NEITHER THE OTHER PARTIES NOR ANY OF THEIR REPRESENTATIVES HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT IT WOULD NOT SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL.  FURTHER, EACH PARTY ACKNOWLEDGES THAT THE OTHER PARTIES RELIED ON THIS WAIVER OF RIGHT TO JURY TRIAL AS A MATERIAL INDUCEMENT TO ENTER INTO THIS AGREEMENT.

3.2Successors and Assigns.  Except as otherwise provided herein, the terms and conditions of this Agreement shall inure to the benefit of, and be binding upon, the successors, permitted assigns, heirs, executors, and administrators of the parties hereto (including transferees of any shares of Registrable Securities).  Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.

3.3Entire Agreement.  This Agreement constitutes the full and entire understanding and agreement between the parties with regard to the subject matter hereof and supersedes all prior oral or written (and all contemporaneous oral) agreements or understandings with respect to the subject matter hereof.  This Agreement supersedes all prior agreements and understandings between the parties with respect to the subject matter hereof.

3.4Notices.  All notices and other communications required or permitted hereunder shall be in writing and shall be mailed by registered or certified mail, return receipt requested, postage prepaid or otherwise delivered by hand, messenger or facsimile transmission, addressed as follows (or at such other address for a party as shall be specified by like notice): (a)  if to an Other Stockholder (other than an Advance Stockholder) listed on Schedule A or a transferee of such Other Stockholder, at such Other Stockholder’s address as set forth on Schedule A, (b) if to an Advance Stockholder listed on Schedule A or a transferee of such Advance Stockholder, at such Advance Stockholder’s address as set forth on Schedule A, with a copy (which shall not constitute notice) to [Bass, Berry & Sims PLC, 150 Third Avenue South, Suite 2800, Nashville,

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Tennessee 37201, Attention: Howard H. Lamar III (Fax:  (615) 742-2709) or Lori B. Morgan (Fax: (615) 742-2780)]; (c) if to Oaktree, c/o Oaktree Capital Management, L.P.,  333 South Grand Avenue, 28th Floor, Los Angeles, California 90071, Attention: Matthew Wilson (Fax:  (213) 830-8833), with a copy (which shall not constitute notice) to Skadden, Arps, Slate, Meagher & Flom LLP,  300 South Grand Avenue, Suite 3400, Los Angeles, California 90071, Attention: Jeffrey H. Cohen (Fax:  (213) 621-5288), or (d) if to the Company, c/o AdvancePierre Foods Holdings, Inc., 9987 Carver Road, Blue Ash, Ohio 95242, Attention: Michael B. Sims, with a copy (which shall not constitute notice) to Skadden, Arps, Slate, Meagher & Flom LLP at the address set forth in clause (c) above.  Each such notice or other communication shall for all purposes of this Agreement be treated as effective or as having been received when delivered, if delivered by hand or by messenger (or overnight courier), 24 hours after confirmed receipt if sent by facsimile transmission or at the earlier of its receipt or on the fifth (5th) day after mailing, if mailed, as aforesaid.

3.5Delays or Omissions.  No delay or omission to exercise any right, power or remedy accruing to any party hereto upon any breach or default of another party under this Agreement shall impair any such right, power or remedy of such party nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or of or in any similar breach or default thereunder occurring; nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default therefore or thereafter occurring.  Any waiver, permit, consent or approval of any kind or character on the part of any party of any breach or default under this Agreement, or any waiver on the part of any party of any provisions or conditions of this Agreement, must be in writing and shall be effective only to the extent specifically set forth in such writing.  All remedies, either under this Agreement, or by law or otherwise afforded to any party, shall be cumulative and not alternative.

3.6Expenses.  In the event of any dispute, controversy, action, proceeding or claim arising out of or relating to this Agreement, or the breach hereof, which is ultimately resolved by a court of competent jurisdiction, the non-prevailing party will reimburse the substantially prevailing party for its reasonable costs and expenses (including, without limitation, legal fees and expenses) actually incurred in connection with such dispute, controversy, action, proceeding or claim.

3.7Counterparts.  This Agreement may be executed in any number of counterparts, each of which may be executed by less than all of the parties hereto, each of which shall be enforceable against the parties actually executing such counterparts, and all of which together shall constitute one instrument.

3.8Severability.  The parties hereto agree that the terms and provisions in this Agreement are reasonable and shall be binding and enforceable in accordance with the terms hereof and, in any event, that the terms and provisions of this Agreement shall be enforced to the fullest extent permissible under law.  In the event that any term or provision of this Agreement shall for any reason be adjudged to be unenforceable or invalid, then such unenforceable or invalid term or provision shall not affect the enforceability or validity of the remaining terms and provisions of this Agreement, and

16

the parties hereto hereby agree to replace such unenforceable or invalid term or provision with an enforceable and valid arrangement which in its economic effect shall be as close as possible to the unenforceable or invalid term or provision.

3.9Certain Adjustments.  The provisions of this Agreement shall apply to the full extent set forth herein with respect to any and all shares in the capital of the Company or any successor or assign of the Company (whether by merger, consolidation, sale of assets or otherwise) which may be issued to Stockholders in respect of, in exchange for, or in substitution for the Company Stock, by combination, recapitalization, reclassification, merger, consolidation, conversion or otherwise and the term “Company Stock” shall include all such other securities held by such Stockholders.  In the event of any change in the capitalization of the Company, as a result of any stock split, stock dividend or stock combination or otherwise, the provisions of this Agreement shall be appropriately adjusted with respect to such Stockholder.

3.10Amendments and Waivers.  Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively), with and only with the written consent of the Company, Oaktree and, to the extent their rights are adversely affected, the holders of a majority of the Registrable Securities, if any, held by the Advance Stockholders.  Any amendment or waiver effected in accordance with this paragraph shall be binding upon each holder of any Registrable Securities then outstanding, each future holder of all such Registrable Securities, and the Company.

3.11Titles and Subtitles.  The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.

3.12Specific Performance.  The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached.  It is accordingly agreed that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement, this being in addition to any other remedy to which they are entitled pursuant to this Agreement.

3.13Construction.  The parties have participated jointly in the negotiation and drafting of this Agreement.  In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Agreement.  References herein to approval of, or consent by, the Company (or other similar phrases) shall be deemed to refer to approval of, or consent by, the directors and/or duly appointed officers of the Company.

17

3.14Further Assurances.  The parties agree, without further consideration, to execute such further instruments and to take such further actions as may be necessary or desirable to carry out the purposes and intent of this Agreement.

3.15Termination.  This Agreement shall terminate upon the written agreement between the Company, Oaktree and the holders of a majority of the Registrable Securities, if any, held by the Advance Stockholders.

3.16Aggregation of Stock.  All shares of Registrable Securities held or acquired by Affiliates of a Person shall be aggregated together with the shares held or acquired by such Person for the purpose of determining the availability of any rights under this Agreement.

[Signature Page Follows]

18

IN WITNESS WHEREOF, the parties have executed this Third Amended and Restated Registration Rights Agreement as of the date first above written.

THE COMPANY
ADVANCEPIERRE FOODS HOLDINGS, INC.
By:
	Name:
	Title:
OAKTREE
OCM APFH HOLDINGS, LLC
By:        OCM Principal Opportunities Fund IV Delaware, L.P., its manager
By:        OCM Principal Opportunities Fund IV Delaware GP Inc., its general partner
By:
Name:
Title:
By:
Name:
Title:
OCM PRINCIPAL OPPORTUNITIES FUND IV DELAWARE, L.P.
By:        OCM Principal Opportunities Fund IV Delaware GP Inc., its general partner
By:
Name:
Title:

[Signature Page to the Second Amended and Restated Registration Rights Agreement]

By:

Name:

Title:

OTHER STOCKHOLDERS

1998 GREG S. ALLEN FAMILY TRUST

By:

Name:

Title:

1998 MARK S. ALLEN FAMILY TRUST

By:

Name:

Title:

ALLEN FAMILY 2009 TRUST

By:

Name:

Title:

GREGORY S. ALLEN REVOCABLE TRUST

By:

Name:

Title:

DAVID L. MCLAUGHLIN REVOCABLE TRUST

By:

Name:

Title:

[Signature Page to the Second Amended and Restated Registration Rights Agreement]

JEAN E. MCLAUGHLIN REVOCABLE TRUST

By:

Name:

Title:

DAVID L. MCLAUGHLIN FAMILY 2009 TRUST

By:

Name:

Title:

JEAN E. MCLAUGHLIN FAMILY 2009 TRUST

By:

Name:

Title:

ALLEN-MCLAUGHLIN APF HOLDINGS, LLC

By:

Name:

Title:

[Signature Page to the Second Amended and Restated Registration Rights Agreement]

SCHEDULE A

OTHER STOCKHOLDERS

Name of Stockholder	Address
Advance Stockholders:
1998 Greg S. Allen Family Trust	1515 London Rd., Charlottesville, VA 22901
1998 Mark S. Allen Family Trust	1515 London Rd., Charlottesville, VA 22901
Allen Family 2009 Trust	1515 London Rd., Charlottesville, VA 22901
Gregory S. Allen Revocable Trust	1515 London Rd., Charlottesville, VA 22901
David L. McLaughlin Revocable Trust	1515 London Rd., Charlottesville, VA 22901
Jean E. McLaughlin Revocable Trust	1515 London Rd., Charlottesville, VA 22901
David L. McLaughlin Family 2009 Trust	1515 London Rd., Charlottesville, VA 22901
Jean E. McLaughlin Family 2009 Trust	1515 London Rd., Charlottesville, VA 22901
Allen-McLaughlin APF Holdings, LLC	1515 London Rd., Charlottesville, VA 22901
Other Stockholders:

Schedule A-1

EX-10.2

Exhibit 10.2

STOCKHOLDERS AGREEMENT

DATED AS OF [        ], 2016

AMONG

ADVANCEPIERRE FOODS HOLDINGS, INC.

AND

THE OTHER PARTIES HERETO

Table of Contents

		Page
ARTICLE I INTRODUCTORY MATTERS		1
1.1	Defined Terms	1
1.2	Construction	3
ARTICLE II CORPORATE GOVERNANCE MATTERS		3
2.1	Election of Directors	3
ARTICLE III INFORMATION		4
3.1	Books and Records; Access	4
3.2	[Certain Reports	4
ARTICLE IV GENERAL PROVISIONS		4
4.1	Termination	4
4.2	Notices	4
4.3	Amendment; Waiver	5
4.4	Further Assurances	5
4.5	Assignment	6
4.6	Third Parties	6
4.7	Governing Law	6
4.8	Jurisdiction; Waiver of Jury Trial	6
4.9	Specific Performance	6
4.10	Entire Agreement	6
4.11	Severability	6
4.12	Table of Contents, Headings and Captions	7
4.13	Grant of Consent	7
4.14	Counterparts	7
4.15	Effectiveness	7
4.16	No Recourse	7

i

STOCKHOLDERS AGREEMENT

This Stockholders Agreement is entered into as of [        ], 2016 by and among AdvancePierre Foods Holdings, Inc., a Delaware corporation (the “Company”), OCM APFH Holdings, LLC, a Delaware limited liability company (“OCM APFH”), and OCM Principal Opportunities Fund IV Delaware, L.P., a Delaware limited partnership (together with OCM APFH, the “Oaktree Group”).

WHEREAS, the Company is currently contemplating an underwritten initial public offering (“IPO”) of shares of its Common Stock (as defined below); and

WHEREAS, in connection with, and effective upon, the date of completion of the IPO (the “Closing Date”), the Company and the Oaktree Group wish to set forth certain understandings between such parties, including with respect to certain governance matters.

NOW, THEREFORE, the parties agree as follows:

ARTICLE I
INTRODUCTORY MATTERS

1.1Defined Terms.  In addition to the terms defined elsewhere herein, the following terms have the following meanings when used herein with initial capital letters:

“Affiliate” has the meaning set forth in Rule 12b-2 promulgated under the Exchange Act, as in effect on the date hereof.

“Agreement” means this Stockholders Agreement, as the same may be amended, supplemented, restated or otherwise modified from time to time in accordance with the terms hereof.

“beneficially own” has the meaning set forth in Rule 13d-3 promulgated under the Exchange Act.

“Board” means the board of directors of the Company.

“Business Day” means a day other than a Saturday, Sunday, federal or New York State holiday or other day on which commercial banks in New York City are authorized or required by law to close.

“Closing Date” has the meaning set forth in the Recitals.

“Company” has the meaning set forth in the Preamble.

“Common Stock” means the shares of common stock, par value $0.01 per share, of the Company, and any other capital stock of the Company into which such stock is reclassified or reconstituted and any other common stock of the Company.

“Control” (including its correlative meanings, “Controlled by” and “under common Control with”) means possession, directly or indirectly, of the power to direct or cause the direction of management or policies (whether through ownership of securities or partnership or other ownership interests, by contract or otherwise) of a Person.

“Director” means any member of the Board.

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“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder, as the same may be amended from time to time.

“Governmental Authority” means any nation or government, any state or other political subdivision thereof, and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.

“IPO” has the meaning set forth in the Recitals.

“Law” means any statute, law, regulation, ordinance, rule, injunction, order, decree, governmental approval, directive, requirement, or other governmental restriction or any similar form of decision of, or determination by, or any interpretation or administration of any of the foregoing by, any Governmental Authority.

“Oaktree Designee” has the meaning set forth in Section 2.1(b).

“Oaktree Entities” means the entities comprising the Oaktree Group, their respective Affiliates and their respective successors and Permitted Assigns.

“Oaktree Group” has the meaning set forth in the Preamble.

“Permitted Assigns” means with respect to an Oaktree Entity, a Transferee of shares of Common Stock that agrees to become party to, and to be bound to the same extent as its Transferor by the terms of, this Agreement.

“Person” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, or other form of business organization, whether or not regarded as a legal entity under applicable Law, or any Governmental Authority or any department, agency or political subdivision thereof.

“Subsidiary” means, with respect to any Person, any corporation, limited liability company, partnership, association or other business entity of which: (i) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, representatives or trustees thereof is at the time owned or Controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof; or (ii) if a limited liability company, partnership, association or other business entity, a majority of the total voting power of stock (or equivalent ownership interest) of the limited liability company, partnership, association or other business entity is at the time owned or Controlled, directly or indirectly, by any Person or one or more Subsidiaries of that Person or a combination thereof. For purposes hereof, a Person or Persons shall be deemed to have a majority ownership interest in a limited liability company, partnership, association or other business entity if such Person or Persons shall be allocated a majority of limited liability company, partnership, association or other business entity gains or losses or shall be or Control the managing member, managing director or other governing body or general partner of such limited liability company, partnership, association or other business entity.

“Total Number of Directors” means the total number of directors comprising the Board at any point in time.

“Transfer” (including its correlative meanings, “Transferor”, “Transferee” and “Transferred”) shall mean, with respect to any security, directly or indirectly, to sell, contract to sell, give, assign, hypothecate, pledge, encumber, grant a security interest in, offer, sell any option or contract to

2

purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend or otherwise transfer or dispose of any economic, voting or other rights in or to such security. When used as a noun, “Transfer” shall have such correlative meaning as the context may require.

1.2Construction.  The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rule of strict construction will be applied against any party.  Unless the context otherwise requires: (a) “or” is disjunctive but not exclusive, (b) words in the singular include the plural, and words in the plural include the singular, and (c) the words “hereof,” “herein,” and “hereunder” and words of similar import when used in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section references are to this Agreement unless otherwise specified.

ARTICLE II
CORPORATE GOVERNANCE MATTERS

2.1Election of Directors.

(a)Following the Closing Date, the Oaktree Group shall have the right, but not the obligation, to nominate to the Board a number of designees equal to at least: (i) a majority of the Total Number of Directors, so long as the Oaktree Entities collectively beneficially own 50% or more of the outstanding shares of Common Stock entitled to vote generally in the election of the Directors; (ii) 40% of the Total Number of Directors, in the event that the Oaktree Entities collectively beneficially own 40% or more, but less than 50%, of the outstanding shares of Common Stock entitled to vote generally in the election of the Directors; (iii) 30% of the Total Number of Directors, in the event that the Oaktree Entities collectively beneficially own 30% or more, but less than 40%, of the outstanding shares of Common Stock entitled to vote generally in the election of the Directors; (iv) 20% of the Total Number of Directors, in the event that the Oaktree Entities collectively beneficially own 20% or more, but less than 30%, of the outstanding shares of Common Stock entitled to vote generally in the election of the Directors; and (v) 10% of the Total Number of Directors, in the event that the Oaktree Entities collectively beneficially own 5% or more, but less than 20%, of the outstanding shares of Common Stock entitled to vote generally in the election of the Directors. For purposes of calculating the number of directors that the Oaktree Group is entitled to nominate pursuant to the immediately preceding sentence, any fractional amounts shall automatically be rounded up to the nearest whole number (e.g., one and one quarter (1¼) Directors shall equate to two (2) Directors) and any such calculations shall be made after taking into account any increase in the Total Number of Directors.

(b)In the event that the Oaktree Group has nominated less than the total number of designees that the Oaktree Group is entitled to nominate pursuant to Section 2.1(a), the Oaktree Group shall have the right, at any time, to nominate such additional designees to which it is entitled, in which case, the Company and the Directors shall take all necessary corporation action, to the fullest extent permitted by law, to (x) enable the Oaktree Group to nominate and effect the election or appointment of such additional individuals, whether by increasing the size of the Board, or otherwise and (y) to designate such additional individuals nominated by the Oaktree Group to fill such newly-created vacancies or to fill any other existing vacancies. Each such person whom the Oaktree Group shall actually nominate pursuant to this Section 2.1 and who is thereafter elected to the Board to serve as a Director shall be referred to herein as a “Oaktree Designee.”

(c)In the event that a vacancy is created at any time by the death, disability, retirement or resignation of any Oaktree Designee, the Oaktree Group shall, to the fullest extent permitted by law, have the right, but not the obligation, to nominate a new designee of the Oaktree Group to fill such vacancy.  The remaining Directors and the Company shall, to the fullest extent permitted by law,

3

cause such vacancy to be filled by a new designee of the Oaktree Group as soon as possible, and the Company hereby agrees to take, to the fullest extent permitted by law, at any time and from time to time, all actions necessary to accomplish the same.

(d)The Company agrees, to the fullest extent permitted by law, to include in the slate of nominees recommended by the Board at any meeting of stockholders called for the purpose of electing directors the persons designated pursuant to this Section 2.1 and to use its best efforts to cause the election of each such designee to the Board, including nominating each such individual to be elected as a Director as provided herein, recommending such individual’s election and soliciting proxies or consents in favor thereof.

ARTICLE III
INFORMATION

3.1Books and Records; Access.  The Company shall, and shall cause its Subsidiaries to, keep proper books, records and accounts, in which full and correct entries shall be made of all financial transactions and the assets and business of the Company and each of its Subsidiaries in accordance with generally accepted accounting principles.  The Company shall, and shall cause its Subsidiaries to, permit the Oaktree Entities and their respective designated representatives, at reasonable times and upon reasonable prior notice to the Company, to review the books and records of the Company or any of its Subsidiaries and to discuss the affairs, finances and condition of the Company or any of its Subsidiaries with the officers of the Company or any of its Subsidiaries; provided, however, that the Company shall not be required to disclose any privileged information of the Company so long as the Company has used its best efforts to enter into an arrangement pursuant to which it may provide such information to the Oaktree Entities without the loss of any such privilege.

3.2Certain Reports.  The Company shall deliver or cause to be delivered to the Oaktree Entities, at their request:

(a)to the extent otherwise prepared by the Company, operating and capital expenditure budgets and periodic information packages relating to the operations and cash flows of the Company and its Subsidiaries; and

(b)such other reports and information as may be reasonably requested by the Oaktree Entities; provided, however, that the Company shall not be required to disclose any privileged information of the Company so long as the Company has used its best efforts to enter into an arrangement pursuant to which it may provide such information to the Oaktree Entities without the loss of any such privilege.

ARTICLE IV
GENERAL PROVISIONS

4.1Termination.  This Agreement shall terminate on the earlier to occur of (i) such time as the Oaktree Group is no longer entitled to nominate a Director pursuant to Section 2.1(a) and (ii) the delivery of a written notice by the Oaktree Group to the Company requesting that this Agreement terminate.

4.2Notices.  Any notice provided for in this Agreement shall be in writing and shall be either personally delivered, mailed first class mail (postage prepaid) or sent by a reputable overnight courier service (charges prepaid) to the Company at the address set forth below and to any other recipient at the address indicated on the Company’s records, or at such address or to the attention of such other

4

Person as the recipient party has specified by prior written notice to the sending party.  Notices will be deemed to have been given hereunder when sent by facsimile (receipt confirmed) delivered personally, five (5) days after deposit in the U.S. mail and one (1) day after deposit with a reputable overnight courier service.

The Company’s address is:

AdvancePierre Foods Holdings, Inc.
 9987 Carver Road
Blue Ash, Ohio 45242
Attention: Michael B. Sims
Fax: [       ]

with a copy (not constituting notice) to:

Skadden, Arps, Slate, Meagher & Flom LLP
300 South Grand Avenue, Suite 3400
Los Angeles, California 90071
Attention: Jonathan Ko, Esq.
Fax: (213) 621-5527

The Oaktree Entities’ address is:

Oaktree Capital Management, L.P.
333 South Grand Avenue, 28th Floor
Los Angeles, California 90071
Attention: [       ]
Fax: [       ]

with a copy (not constituting notice) to:

Skadden, Arps, Slate, Meagher & Flom LLP
 300 South Grand Avenue, Suite 3400
Los Angeles, California 90071
Attention: Jonathan Ko, Esq.
Fax: (213) 621-5527

4.3Amendment; Waiver.  This Agreement may be amended, supplemented or otherwise modified only by a written instrument executed by the Company and the other parties hereto.  Neither the failure nor delay on the part of any party hereto to exercise any right, remedy, power or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege preclude any other or further exercise of the same or of any other right, remedy, power or privilege, nor shall any waiver of any right, remedy, power or privilege with respect to any occurrence be construed as a waiver of such right, remedy, power or privilege with respect to any other occurrence. No waiver shall be effective unless it is in writing and is signed by the party asserted to have granted such waiver.

4.4Further Assurances.  The parties hereto will sign such further documents, cause such meetings to be held, resolutions passed, exercise their votes and do and perform and cause to be done such further acts and things necessary, proper or advisable in order to give full effect to this Agreement and every provision hereof.  To the fullest extent permitted by law, the Company shall not

5

directly or indirectly take any action that is intended to, or would reasonably be expected to result in, any Oaktree Entity being deprived of the rights contemplated by this Agreement.

4.5Assignment.  This Agreement will inure to the benefit of and is binding on the parties hereto and their respective successors and permitted assigns.  This Agreement may not be assigned without the express prior written consent of the other parties hereto, and any attempted assignment, without such consents, will be null and void; provided, however, that each Oaktree Entity shall be entitled to assign, in whole or in part, any of its rights hereunder to any of its Permitted Assigns without such prior written consent.

4.6Third Parties.  This Agreement does not create any rights, claims or benefits inuring to any person that is not a party hereto or create or establish any third party beneficiary hereto.

4.7Governing Law.  This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to principles of conflicts of laws thereof.

4.8Jurisdiction; Waiver of Jury Trial.  In any judicial proceeding involving any dispute, controversy or claim arising out of or relating to this Agreement, each of the parties hereto unconditionally accepts the jurisdiction and venue of the Court of Chancery, or, if the Court of Chancery does not have subject matter jurisdiction over this matter, the Superior Court of the State of Delaware (Complex Commercial Division), or if jurisdiction over the matter is vested exclusively in federal courts, the United States District Court for the District of Delaware, and the appellate courts to which orders and judgments thereof may be appealed. In any such judicial proceeding, the parties hereto agree that in addition to any method for the service of process permitted or required by such courts, to the fullest extent permitted by law, service of process may be made by delivery provided pursuant to the directions set forth in Section 4.2.  EACH OF THE PARTIES HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING ANY DISPUTE, CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.

4.9Specific Performance.  Each party hereto acknowledges and agrees that in the event of any breach of this Agreement by any of them, the other parties hereto would be irreparably harmed and could not be made whole by monetary damages.  Each party accordingly agrees to waive the defense in any action for specific performance that a remedy at law would be adequate and that the parties, in addition to any other remedy to which they may be entitled at law or in equity, shall be entitled to specific performance of this Agreement without the posting of bond.

4.10Entire Agreement.  This Agreement sets forth the entire understanding of the parties hereto with respect to the subject matter hereof.  There are no agreements, representations, warranties, covenants or understandings with respect to the subject matter hereof or thereof other than those expressly set forth herein and therein.  This Agreement supersedes all other prior agreements and understandings between the parties with respect to such subject matter.

4.11Severability.  If any provision of this Agreement, or the application of such provision to any Person or circumstance or in any jurisdiction, shall be held to be invalid or unenforceable to any extent, (i) the remainder of this Agreement shall not be affected thereby, and each other provision hereof shall be valid and enforceable to the fullest extent permitted by law, (ii) as to such Person or circumstance or in such jurisdiction, such provision shall be reformed to be valid and enforceable to the fullest extent permitted by law and (iii) the application of such provision to other Persons or circumstances or in other jurisdictions shall not be affected thereby.

6

4.12Table of Contents, Headings and Captions.  The table of contents, headings, subheadings and captions contained in this Agreement are included for convenience of reference only, and in no way define, limit or describe the scope of this Agreement or the intent of any provision hereof.

4.13Grant of Consent.  Any vote, consent or approval of the Oaktree Group or an Oaktree Entity hereunder shall be deemed to be given with respect to such entities or entity if such vote, consent or approval is given by members of such entities or entity having a pecuniary interest in a majority of the shares of Common Stock over which all members of such entities or entity then have a pecuniary interest.

4.14Counterparts.  This Agreement and any amendment hereto may be signed in any number of separate counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one agreement (or amendment, as applicable).

4.15Effectiveness.  This Agreement shall become effective upon the Closing Date.

4.16No Recourse.  This Agreement may only be enforced against, and any claims or cause of action that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement may only be made against, the entities that are expressly identified as parties hereto and no past, present or future Affiliate, director, officer, employee, incorporator, member, manager, partner, stockholder, agent, attorney or representative of any party hereto shall have any liability for any obligations or liabilities of the parties to this Agreement or for any claim based on, in respect of, or by reason of, the transactions contemplated hereby.

[Signature Page Follows]

7

IN WITNESS WHEREOF, the parties hereto have executed this Stockholders Agreement on the day and year first above written.

COMPANY

ADVANCEPIERRE FOODS HOLDINGS, INC.

By:

Name:

Title:

OAKTREE GROUP:

OCM APFH HOLDINGS, LLC

By:         OCM Principal Opportunities Fund IV Delaware, L.P., its manager

By:         OCM Principal Opportunities Fund IV Delaware GP Inc., its general partner

By:

Name:

Title:

By:

Name:

Title:

OCM PRINCIPAL OPPORTUNITIES FUND IV DELAWARE, L.P.

By:         OCM Principal Opportunities Fund IV Delaware GP Inc., its general partner

By:

Name:

Title:

By:

Name:

Title:

[Signature Page to Stockholders Agreement]

EX-10.3

Exhibit 10.3

FORM OF INDEMNIFICATION AGREEMENT

THIS INDEMNIFICATION AGREEMENT, dated as of                    (this “Agreement”), is made by and between AdvancePierre Foods Holdings, Inc., a Delaware corporation (the “Company”), and                    (“Indemnitee”).

WHEREAS, it is essential to the Company to retain and attract as directors and officers highly capable persons;

WHEREAS, Indemnitee is a director or officer of the Company;

WHEREAS, both the Company and Indemnitee recognize the increased risk of litigation and other claims being asserted against directors and officers of public companies in today’s environment;

WHEREAS, the Company’s Amended and Restated Certificate of Incorporation, as amended from time to time (“Certificate of Incorporation”), and Amended and Restated Bylaws, as amended from time to time (“Bylaws”), require the Company to indemnify and advance Expenses (as defined below) to its directors and officers to the fullest extent permitted by law and the Indemnitee has been serving and continues to serve as a director or officer of the Company in part in reliance on such Certificate of Incorporation and Bylaws;

WHEREAS, uncertainties as to the availability of indemnification created by recent court decisions may increase the risk that the Company will be unable to retain and attract as directors and officers highly capable persons;

WHEREAS, the board of directors of the Company (“Board of Directors”) has determined that the inability of the Company to retain and attract as directors and officers highly capable persons would be detrimental to the interests of the Company and that the Company therefore should seek to assure such persons that indemnification and insurance coverage will be available in the future;

WHEREAS, the parties intend that any rights Indemnitee may have from Indemnitee-Related Entities (as defined herein) shall be secondary to the primary obligation of the Company to indemnify and hold harmless Indemnitee under this Agreement; and

WHEREAS, in recognition of Indemnitee’s need for protection against personal liability, and in part to provide Indemnitee with specific contractual assurance that the protection promised by the Company’s Certificate of Incorporation and Bylaws will be available to Indemnitee (regardless of, among other things, any amendment to or revocation of such Certificate of Incorporation and Bylaws or any change in the composition of the Company’s Board of Directors or acquisition transaction relating to the Company), the Company wishes to provide in this Agreement for the indemnification of and the advancing of Expenses to Indemnitee to the fullest extent (whether partial or complete) permitted by law and as set forth in this Agreement, and for the continued coverage of Indemnitee under the directors’ and officers’ liability insurance policy of the Company.

NOW, THEREFORE, in consideration of the premises and of Indemnitee continuing to serve the Company directly or, at its request, another enterprise, and intending to be legally bound hereby, the parties hereto agree as follows:

1.Certain Definitions.  In addition to terms defined elsewhere herein, the following terms have the following meanings when used in this Agreement:

(a)Change in Control:  shall be deemed to have occurred if (i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), other than Oaktree Capital Management, L.P. and its affiliates and other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of shares of the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under said Act), directly or indirectly, of securities of the Company representing 50% or more of the total voting power represented by the Company’s then outstanding Voting Securities, or (ii) during any period of two consecutive years, individuals who at the beginning of such period constitute the Board of Directors and any new director whose election by the Board of Directors or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof, or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other entity other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) more than 50% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Company’s assets.

(b)Claim:  means any threatened, asserted, pending or completed action, suit or proceeding, whether civil, criminal, administrative, investigative or other, including any arbitration or other alternative dispute resolution mechanism, or any appeal of any kind thereof, or any inquiry or investigation, whether instituted by (or in the right of) the Company or any governmental agency or any other person or entity, in which Indemnitee was, is, may be or will be involved as a party, witness or otherwise.

(c)ERISA:  means the Employee Retirement Income Security Act of 1974, as amended.

(d)Expenses:  include attorneys’ fees and all other direct or indirect costs, expenses and obligations, including judgments, fines, penalties, interest, appeal bonds, amounts paid in settlement with the approval of the Company, travel expenses, and counsel fees and disbursements (including, without limitation, experts’ fees, court costs, retainers, appeal bond premiums, transcript fees, duplicating, printing and binding costs, as well as telecommunications, postage and courier charges) paid or incurred in connection with investigating, prosecuting, defending, being a witness in or participating in (including on appeal), or preparing to investigate, prosecute, defend, be a witness in or participate in, any Claim relating to any Indemnifiable Event, and shall include (without limitation) all attorneys’ fees and all other expenses incurred by or on behalf of an Indemnitee in connection with preparing and submitting any requests or statements for indemnification, advancement or any other right provided by this Agreement (including, without limitation, such fees or expenses incurred in connection with legal proceedings contemplated by Section 2(d) hereof).

(e)Indemnifiable Amounts:  means (i) any and all liabilities, Expenses, damages, judgments, fines, penalties, ERISA excise taxes and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such liabilities, Expenses, damages, judgments, fines, penalties, ERISA excise taxes or amounts paid in settlement) arising out of or resulting from any Claim relating to an Indemnifiable Event, (ii) any liability pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any subsidiary of the Company,

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including, without limitation, any indebtedness which the Company or any subsidiary of the Company has assumed or taken subject to, and (iii) any liabilities which Indemnitee incurs as a result of acting on behalf of the Company (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the United States Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise).

(f)Indemnifiable Event:  means any event or occurrence, whether occurring before, on or after the date of this Agreement, related to the fact that Indemnitee is or was a director or officer or fiduciary of the Company, or is or was serving at the request of the Company as a director, officer, employee, manager, member, partner, tax matter partner, trustee, agent, fiduciary or similar capacity, of another company, corporation, limited liability company, partnership, joint venture, employee benefit plan, trust or other entity or enterprise, or by reason of anything done or not done by Indemnitee in any such capacity (in all cases whether or not Indemnitee is acting or serving in any such capacity or has such status at the time any Indemnifiable Amount is incurred for which indemnification, advancement or any other right can be provided by this Agreement).  The term “Company,” where the context requires when used in this Agreement, shall be construed to include such other company, corporation, limited liability company, partnership, joint venture, employee benefit plan, trust or other entity or enterprise.

(g)Indemnitee-Related Entities:  means any company, corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other entity or enterprise (other than the Company or any other company, corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other entity or enterprise Indemnitee has agreed, on behalf of the Company or at the Company’s request, to serve as a director, officer, employee or agent and which service is covered by the indemnity described in this Agreement) from whom an Indemnitee may be entitled to indemnification or advancement of Expenses with respect to which, in whole or in part, the Company may also have an indemnification or advancement obligation.

(h)Independent Legal Counsel:  means an attorney or firm of attorneys (following a Change in Control, selected in accordance with the provisions of Section 3 hereof) who is experienced in matters of corporate law and who shall not have otherwise performed services for the Company or Indemnitee within the last five years (other than with respect to matters concerning the rights of Indemnitee under this Agreement, or of other indemnitees under similar indemnity agreements).

(i)Jointly Indemnifiable Claim:  means any Claim for which the Indemnitee may be entitled to indemnification from both an Indemnitee-Related Entity and the Company pursuant to applicable law, any indemnification agreement or the certificate of incorporation, by-laws, partnership agreement, operating agreement, certificate of formation, certificate of limited partnership or comparable organizational documents of the Company and an Indemnitee-Related Entity.

(j)Reviewing Party:  means any appropriate person or body consisting of a member or members of the Board of Directors or any other person or body appointed by the Board of Directors who is not a party to the particular Claim for which Indemnitee is seeking indemnification, or Independent Legal Counsel.

(k)Voting Securities:  means any securities of the Company which vote generally in the election of directors.

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2.Basic Indemnification Arrangement; Advancement of Expenses.

(a)In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Claim by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee, or cause Indemnitee to be indemnified, to the fullest extent permitted by law as soon as practicable but in any event no later than thirty (30) days after written demand is presented to the Company, and hold Indemnitee harmless against any and all Indemnifiable Amounts.

(b)If so requested by Indemnitee, the Company shall advance, or cause to be advanced (within two business days of such request), any and all Expenses incurred by Indemnitee (an “Expense Advance”).  The Company shall at the Indemnitee’s election, in accordance with such request (but without duplication), either (i) pay, or cause to be paid, such Expenses on behalf of Indemnitee, or (ii) reimburse, or cause the reimbursement of, Indemnitee for such Expenses.  Subject to Section 2(d), Indemnitee’s right to an Expense Advance is absolute and shall not be subject to any prior determination by the Reviewing Party that the Indemnitee has satisfied any applicable standard of conduct for indemnification.

(c)Notwithstanding anything in this Agreement to the contrary, Indemnitee shall not be entitled to indemnification or advancement of Expenses pursuant to this Agreement in connection with any Claim initiated by Indemnitee unless (i) the Company has joined in or the Board of Directors has authorized or consented to the initiation of such Claim or (ii) the Claim is one to enforce Indemnitee’s rights under this Agreement.

(d)Notwithstanding the foregoing, (i) the indemnification obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have determined (in a written legal opinion, in any case in which the Independent Legal Counsel is involved as required by Section 3 hereof) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(b) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines (in a written legal opinion, in any case in which the Independent Legal Counsel is involved as required by Section 3 hereof) that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid (it being understood and agreed that the foregoing agreement by Indemnitee shall be deemed to satisfy any requirement that Indemnitee provide the Company with an undertaking to repay any Expense Advance if it is ultimately determined that the Indemnitee is not entitled to indemnification under applicable law); provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed).  Indemnitee’s undertaking to repay such Expense Advances shall be unsecured and interest-free.  If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been a Change in Control, the Reviewing Party shall be the Independent Legal Counsel referred to in Section 3 hereof.  If (i) there has been no determination by the Reviewing Party within thirty (30) days after written demand is presented to the Company, (ii) the Reviewing Party determines that Indemnitee would not be permitted to be indemnified in whole or in part under applicable law, or (iii) payment is not made within ten (10) days after a determination has been made in accordance with this Agreement that Indemnitee is entitled to indemnification hereunder, Indemnitee shall have the right to commence litigation in any court in the State of New York or the State

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of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and to appear in any such proceeding.  Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee.

3.Change in Control.  If there is a Change in Control, then with respect to all matters thereafter arising concerning the rights of Indemnitee to indemnity payments and Expense Advances under this Agreement or any provision of the Certificate of Incorporation or the Bylaws now or hereafter in effect, the Company shall seek legal advice only from Independent Legal Counsel selected by Indemnitee and approved by the Company (which approval shall not be unreasonably delayed, conditioned or withheld).  Such counsel, among other things, shall render its written opinion to the Company and Indemnitee as to whether and to what extent the Indemnitee would be permitted to be indemnified under applicable law.  The Company agrees to pay the reasonable fees of the Independent Legal Counsel and to indemnify fully such counsel against any and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.

4.Indemnification for Additional Expenses.  The Company shall indemnify, or cause the indemnification of, Indemnitee against any and all Expenses and, if requested by Indemnitee, shall advance such Expenses to Indemnitee subject to and in accordance with Section 2(b), which are incurred by Indemnitee in connection with any action brought by Indemnitee for (i) indemnification or an Expense Advance by the Company under this Agreement or any provision of the Certificate of Incorporation or the Bylaws now or hereafter in effect or (ii) recovery under any directors’ and officers’ liability insurance policies maintained by the Company, regardless of whether Indemnitee ultimately is determined to be entitled to such indemnification, Expense Advance or insurance recovery, as the case may be; provided that Indemnitee shall be required to reimburse such Expenses in the event that a final judicial determination is made (as to which all rights of appeal therefrom have been exhausted or lapsed) that such action brought by Indemnitee, or the defense by Indemnitee of an action brought by the Company or any other person, as applicable, was frivolous or in bad faith.

5.Partial Indemnity, Etc.  If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of the Expenses or other Indemnifiable Amounts in respect of a Claim but not, however, for all of the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion thereof to which Indemnitee is entitled.  Moreover, notwithstanding any other provision of this Agreement, to the extent that Indemnitee has been successful on the merits or otherwise in defense of any or all Claims relating in whole or in part to an Indemnifiable Event or in defense of any issue or matter therein, including dismissal without prejudice, Indemnitee shall be indemnified against all Expenses incurred in connection therewith, notwithstanding an earlier determination by the Board of Directors that the Indemnitee is not entitled to indemnification under applicable law.

6.Burden of Proof, Etc.  In connection with any determination by the Reviewing Party or otherwise as to whether Indemnitee is entitled to be indemnified hereunder, the Reviewing Party, court, any finder of fact or other relevant person shall presume that Indemnitee has satisfied the applicable standard of conduct and is entitled to indemnification, and the burden of proof shall be on the Company (or any other person or entity disputing such conclusions) to establish, by clear and convincing evidence, that Indemnitee is not so entitled.

7.Reliance as Safe Harbor.  For purposes of this Agreement, Indemnitee shall be deemed to have acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best

5

interests of the Company if Indemnitee’s actions or omissions to act are taken in good faith reliance upon the records of the Company, including its financial statements, or upon information, opinions, reports or statements furnished to Indemnitee by the officers or employees of the Company in the course of their duties, or by committees of the Board of Directors, or by any other person (including legal counsel, accountants and financial advisors) as to matters Indemnitee reasonably believes are within such other person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Company.  In addition, the knowledge or actions, or failures to act, of any other director, officer, agent or employee of the Company shall not be imputed to Indemnitee for purposes of determining the right to indemnity hereunder.

8.No Other Presumptions.  For purposes of this Agreement, the termination of any Claim by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere, or its equivalent, shall not create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law.  In addition, neither the failure of the Reviewing Party to have made a determination as to whether Indemnitee has met any particular standard of conduct or had any particular belief, nor an actual determination by the Reviewing Party that Indemnitee has not met such standard of conduct or did not have such belief, prior to the commencement of legal proceedings by Indemnitee to secure a judicial determination that Indemnitee should be indemnified under applicable law shall be a defense to Indemnitee’s claim or create a presumption that Indemnitee has not met any particular standard of conduct or did not have any particular belief.

9.Nonexclusivity, Etc.  The rights of Indemnitee hereunder shall be in addition to any other rights Indemnitee may have under the Certificate of Incorporation, the Bylaws or the Delaware General Corporation Law, any agreement, vote of stockholders or resolution of directors, or otherwise.  To the extent that a change in applicable law (whether by statute or judicial decision) permits greater indemnification by agreement than would be afforded currently under the Certificate of Incorporation, the Bylaws or this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such change.  To the extent that there is a conflict or inconsistency between the terms of this Agreement, the Certificate of Incorporation or the Bylaws, it is the intent of the parties hereto that the Indemnitee shall enjoy the greater benefits regardless of whether contained herein or in the Certificate of Incorporation or the Bylaws.  No amendment or alteration of the Certificate of Incorporation or the Bylaws or any other agreement shall adversely affect the rights provided to Indemnitee under this Agreement.

10.Liability Insurance.  To the extent the Company maintains an insurance policy or policies providing directors’ and officers’ liability insurance, Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of the coverage available for the Company’s directors and officers.  If the Company has such insurance in effect at the time the Company receives from Indemnitee any notice of the commencement of an action, suit or proceeding, the Company shall give prompt notice of the commencement of such action, suit or proceeding to the insurers in accordance with the procedures set forth in the policy.  The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such proceeding in accordance with the terms of such policy.

11.Period of Limitations.  No legal action shall be brought and no cause of action shall be asserted by or in the right of the Company against Indemnitee, Indemnitee’s spouse, heirs, executors or personal or legal representatives after the expiration of two years from the date of accrual of such cause of action, and any claim or cause of action of the Company shall be extinguished and deemed released unless asserted by the timely filing of a legal action within such two-year period; provided, however, that

6

if any shorter period of limitations is otherwise applicable to any such cause of action, such shorter period shall govern.

12.Amendments, Etc.  No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by both of the parties hereto.  No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.

13.Subrogation.  Subject to Section 14 hereof, in the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers reasonably required and shall do everything that may be reasonably necessary to secure such rights, including the execution of such documents necessary to enable the Company effectively to bring suit to enforce such rights.  The Company shall pay or reimburse all Expenses actually and reasonably incurred by Indemnitee in connection with such subrogation.

14.Jointly Indemnifiable Claims.  Given that certain Jointly Indemnifiable Claims may arise due to the relationship between the Indemnitee-Related Entities and the Company and the service of Indemnitee as a director or officer of the Company at the request of the Indemnitee-Related Entities, the Company acknowledges and agrees that the Company shall be fully and primarily responsible for the payment to Indemnitee in respect of indemnification and advancement of Expenses in connection with any such Jointly Indemnifiable Claim, pursuant to and in accordance with the terms of this Agreement, irrespective of any right of recovery Indemnitee may have from the Indemnitee-Related Entities.  Under no circumstance shall the Company be entitled to any right of subrogation or contribution by the Indemnitee-Related Entities and no right of recovery Indemnitee may have from the Indemnitee-Related Entities shall reduce or otherwise alter the rights of Indemnitee or the obligations of the Company hereunder.  In the event that any of the Indemnitee-Related Entities shall make any payment to Indemnitee in respect of indemnification or advancement of Expenses with respect to any Jointly Indemnifiable Claim, the Company agrees that such payment or advancement shall not extinguish or affect in any way the rights of Indemnitee under this Agreement and further agrees that the Indemnitee-Related Entity making such payment shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee against the Company.  Each of the Indemnitee-Related Entities shall be third-party beneficiaries with respect to this Section 14, entitled to enforce this Section 14 against the Company as though each such Indemnitee-Related Entity were a party to this Agreement.

15.No Duplication of Payments.  Subject to Section 14 hereof, the Company shall not be liable under this Agreement to make any payment in connection with any Claim made against Indemnitee to the extent Indemnitee has otherwise actually received payment (under any insurance policy, or any provision of the Certificate of Incorporation or the Bylaws or otherwise) of the amounts otherwise indemnifiable hereunder.

16.Defense of Claims.  The Company shall be entitled to participate in the defense of any Claim relating to an Indemnifiable Event or to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee; provided that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (i) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with an actual or potential conflict of interest, (ii) the named parties in any such Claim (including any impleaded parties) include both the Company, or any subsidiary of the Company, and Indemnitee, and Indemnitee concludes that there may be one or more legal defenses available to Indemnitee that are different from or in addition to those available to the Company or any subsidiary of the Company, or (iii) any such representation by such counsel would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee shall be entitled to retain separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular

7

Claim) at the Company’s expense.  The Company shall not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any Claim relating to an Indemnifiable Event effected without the Company’s prior written consent.  The Company shall not, without the prior written consent of Indemnitee, effect any settlement of any Claim relating to an Indemnifiable Event which Indemnitee is or could have been a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on all claims that are the subject matter of such Claim.  Neither the Company nor Indemnitee shall unreasonably withhold, condition or delay its or his or her consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement (i) that does not provide a complete and unconditional release of Indemnitee and/or (ii) that has any admission of liability by the Indemnitee.  In no event shall Indemnitee be required to waive, prejudice or limit attorney-client privilege or work-product protection or other applicable privilege or protection.

17.No Adverse Settlement.  The Company shall not seek, nor shall it agree to, consent to, support, or agree not to contest any settlement or other resolution of any Claim, or settlement or other resolution of any other claim, action, proceeding, demand, investigation or other matter that has the actual or purported effect of extinguishing, limiting or impairing Indemnitee’s rights hereunder, including without limitation the entry of any bar order or other order, decree or stipulation, pursuant to 15 U.S.C. § 78u-4 (the Private Securities Litigation Reform Act), or any similar foreign, federal or state statute, regulation, rule or law.

18.Binding Effect, Etc.  This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors (including any direct or indirect successor or continuing company by purchase, merger, consolidation or otherwise to all or substantially all of the business or assets of the Company), assigns, spouses, heirs, executors and personal and legal representatives.  The Company shall require and cause any successor (whether direct or indirect by purchase, merger, consolidation, or otherwise) to all or substantially all of the business or assets of the Company, by written agreement in form and substance satisfactory to Indemnitee and Indemnitee’s counsel, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform if no such succession had taken place.  This Agreement shall continue in effect regardless of whether Indemnitee continues to serve as an officer or director of the Company or of any other entity or enterprise at the Company’s request.

19.Security.  To the extent requested by Indemnitee and approved by the Board of Directors, the Company may at any time and from time to time provide security to Indemnitee for the obligations of the Company hereunder through an irrevocable bank line of credit, funded trust or other collateral or by other means.  Any such security, once provided to Indemnitee, may not be revoked or released without the prior written consent of such Indemnitee.

20.Severability.  If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever, (a) the validity, legality and enforceability of the remaining provisions of this Agreement (including, without limitation, all portions of any paragraph of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that are not themselves invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby, and (b) to the fullest extent possible, the provisions of this Agreement (including, without limitation, all portions of any paragraph of this Agreement containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable and to give effect to the terms of this Agreement.

21.Specific Performance, Etc.  The parties recognize that if any provision of this Agreement is violated by the Company, Indemnitee may be without an adequate remedy at law.  Accordingly, in the

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event of any such violation, Indemnitee shall be entitled, if Indemnitee so elects, to institute proceedings, either in law or at equity, to obtain damages, to enforce specific performance, to enjoin such violation, or to obtain any relief or any combination of the foregoing as Indemnitee may elect to pursue.

22.Notices.  All notices, requests, consents and other communications hereunder to any party shall be deemed to be sufficient if contained in a written document delivered in person or sent by facsimile, nationally recognized overnight courier or personal delivery, addressed to such party at the address set forth below or such other address as may hereafter be designated on the signature pages of this Agreement or in writing by such party to the other parties:

(a)If to the Company, to:

AdvancePierre Foods Holdings, Inc.
9987 Carver Road
Blue Ash, Ohio 45242
Attn:Michael B. Sims

(b)If to Indemnitee, to the address set forth on Annex A hereto.

All such notices, requests, consents and other communications shall be deemed to have been given or made if and when received (including by overnight courier) by the parties at the above addresses or sent by electronic transmission, with confirmation received, to the facsimile numbers specified above (or at such other address or facsimile number for a party as shall be specified by like notice).  Any notice delivered by any party hereto to any other party hereto shall also be delivered to each other party hereto simultaneously with delivery to the first party receiving such notice.

23.Counterparts.  This Agreement may be executed in counterparts, each of which shall for all purposes be deemed to be an original but all of which together shall constitute one and the same agreement.  Only one such counterpart signed by the party against whom enforceability is sought needs to be produced to evidence the existence of this Agreement.

24.Headings.  The headings of the sections and paragraphs of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction or interpretation thereof.

25.Governing Law.  This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware applicable to contracts made and to be performed in such state without giving effect to the principles of conflicts of laws.

[signature page follows]

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.

COMPANY:

ADVANCEPIERRE FOODS HOLDINGS, INC.

By:

Name:

Title:

INDEMNITEE:

Name:

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ANNEX A

Address for Notices to Indemnitee

A-1

EX-10.4

Exhibit 10.4

INCOME TAX RECEIVABLE AGREEMENT

Dated as of [·], 2016

Table of Contents

	Page
ARTICLE I
DEFINITIONS
Section 1.01Definitions	1
ARTICLE II
DETERMINATION OF REALIZED TAX BENEFIT
Section 2.01Pre-IPO Tax Assets	7
Section 2.02Tax Benefit Schedule	7
Section 2.03Procedures; Amendments	7
ARTICLE III
TAX BENEFIT PAYMENTS
Section 3.01Payments	8
Section 3.02No Duplicative Payments	9
ARTICLE IV
TERMINATION
Section 4.01Termination, Early Termination and Breach of Agreement	9
Section 4.02Early Termination Notice	10
Section 4.03Payment upon Early Termination	11
ARTICLE V
LATE PAYMENTS AND COMPLIANCE WITH INDEBTEDNESS
Section 5.01Late Payments by the Corporation	12
Section 5.02Compliance with Indebtedness	12
Section 5.03Conflicting Agreements.	12
ARTICLE VI
NO DISPUTES; CONSISTENCY; COOPERATION
Section 6.01The Existing Stockholders Representative’s Participation in the Corporation’s Tax Matters	13

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Section 6.02Consistency	13
Section 6.03Cooperation	13
ARTICLE VII
MISCELLANEOUS
Section 7.01Notices	14
Section 7.02Counterparts	14
Section 7.03Entire Agreement; Third Party Beneficiaries	15
Section 7.04Governing Law	15
Section 7.05Severability	15
Section 7.06Successors; Assignment; Amendments; Waivers	15
Section 7.07Headings, Titles, and Subtitles	16
Section 7.08Resolution of Disputes	16
Section 7.09Reconciliation Procedures	17
Section 7.10Withholding	18
Section 7.11Affiliated Corporations; Admission of the Corporation into a Consolidated Group; Transfers of Corporate Assets	18
Section 7.12Confidentiality	19
Section 7.13Existing Stockholders Representative	19
Section 7.14Drag-Along Rights	21
Section 7.15Tag-Along Rights	21

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This INCOME TAX RECEIVABLE AGREEMENT (as amended from time to time, this “Agreement”), dated as of [·], 2016, is hereby entered into by and among AdvancePierre Foods Holdings, Inc., a Delaware corporation (the “Corporation”), and OCM FIE, LLC, a Delaware limited liability company (the “Existing Stockholders Representative”).

RECITALS

WHEREAS, the Existing Stockholders (as defined below), in the aggregate, hold 100% of the capital stock of the Corporation, directly or indirectly;

WHEREAS, pursuant to the IPO, the Corporation will become a public company;

WHEREAS, after the IPO, the Corporation and its Subsidiaries (as defined below) (collectively, the “Taxable Entities” and each a “Taxable Entity”) will have, for applicable Tax purposes, net operating losses (“NOLS”), alternative minimum tax credit carryforwards (including alternative minimum tax credits that arise after the IPO as a result of limitations on the use of NOLs under the alternative minimum tax) and tax basis (including depreciation and amortization deductions in respect thereof) (collectively, “Tax Assets”) that relate to periods (or portions thereof) prior to the IPO (the “Pre-IPO Tax Assets”);

WHEREAS, the Pre-IPO Tax Assets and ITR Tax Benefits (as defined below) may reduce the reported liability for Taxes (as defined below) that the Taxable Entities might otherwise be required to pay; and

WHEREAS, the parties to this Agreement desire to make certain arrangements with respect to the effect of the Pre-IPO Tax Assets and ITR Tax Benefits on the reported liability for Taxes of the Taxable Entities.

NOW, THEREFORE, in consideration of the foregoing and the respective covenants and agreements set forth herein, and intending to be legally bound hereby, the parties hereto agree as follows:

ARTICLE I

DEFINITIONS

Section 1.01Definitions.  As used in this Agreement, the terms set forth in this ARTICLE I shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined).

“Acquired Tax Assets” means any Tax Asset of any corporation or other entity acquired by the Corporation or any of its Subsidiaries by purchase, merger, or otherwise (in each case, from a Person or Persons other than the Corporation and its Subsidiaries and, in each case, whether or not such corporation or other entity survives) after the IPO that relate to periods (or portions thereof) ending on or prior to the date of such acquisition.

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“Advisory Firm” means (i) PricewaterhouseCoopers LLP or (ii) any other law or accounting firm that is (A) nationally recognized as being expert in Tax matters and (B) that is agreed to by the Corporation and the Existing Stockholders Representative.

“Advisory Firm Letter” means a letter from the Advisory Firm stating, as applicable, that the relevant Schedule, notice, or other information to be provided by the Corporation to the Existing Stockholders Representative and all supporting schedules and work papers were prepared in a manner consistent with the terms of this Agreement and, to the extent not expressly provided in this Agreement, on a reasonable basis in light of the facts and applicable law in existence on the date to which such Schedule, notice or other information relates.

“Affiliate” means, with respect to any Person, any other Person that directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such first Person.

“Agreed Rate” means LIBOR plus 200 basis points.

“Agreement” is defined in the preamble of this Agreement.

“Amended Schedule” is defined in Section 2.03(b) of this Agreement.

“Applicable Percentage” means, with respect to any Existing Stockholder, the percentage set forth opposite such Existing Stockholder’s name on Schedule A, as amended from time to time to reflect any Permitted Assignment.

“Bankruptcy Code” means Title 11 of the United States Code.

“Business Day” means Monday through Friday of each week, except that a legal holiday recognized as such by the government of the United States of America or the State of New York shall not be regarded as a Business Day.

“Change of Control” means:

(i)a merger, reorganization, consolidation or similar form of business transaction directly involving the Corporation or indirectly involving the Corporation through one or more intermediaries unless, immediately following such transaction, more than 50% of the voting power of the then outstanding voting stock or other equity securities of the Corporation resulting from consummation of such transaction (including, without limitation, any parent or ultimate parent corporation of such Person that as a result of such transaction owns directly or indirectly the Corporation and all or substantially all of the Corporation’s assets) is held by the existing equityholders of the Corporation (determined immediately prior to such transaction and related transactions); or

(ii)a transaction in which the Corporation, directly or indirectly, sells, assigns, conveys, transfers, leases or otherwise disposes of all or substantially all of its assets to another Person other than an Affiliate; or

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(iii)a transaction in which there is an acquisition of control of the Corporation by a Person or group of Persons (other than Existing Stockholders and their Affiliates).  For purposes of this definition, the term “control” shall mean the possession, directly or indirectly, of the power to either (A) vote more than 50% of the securities having ordinary voting power for the election of directors (or comparable positions in the case of partnerships and limited liability companies), or (B) direct or cause the direction of the management and policies of such Person, whether by contract or otherwise (for the avoidance of doubt, consent rights do not constitute “control” for the purpose of this definition); or

(iv)the liquidation or dissolution of the Corporation.

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

“Combined Taxation Group” means any consolidated, combined or unitary group or any profit and/or loss sharing, affiliated group relief, group payment or similar group or fiscal unity for Tax purposes (by election or otherwise).

“Control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract or otherwise.

“Corporation” is defined in the preamble of this Agreement.

“Default Rate” means LIBOR plus 500 basis points.

“Determination” shall (a) have the meaning ascribed to such term in Section 1313(a) of the Code or similar provision of state, local and foreign Tax law, as applicable, or (b) mean any other event (including the execution of IRS Form 870-AD) that finally and conclusively establishes the amount of any liability for Tax.

“Divestiture” means the sale or other divestiture of any Taxable Entity, other than any such sale that is or is part of a Change of Control.

“Divestiture Acceleration Payment” is defined in Section 4.03(c) of this Agreement.

“Early Termination Date” means the date of an Early Termination Notice for purposes of determining the Early Termination Payment, or, in the event of a Divestiture, the effective date of such Divestiture.

“Early Termination Notice” is defined in Section 4.02 of this Agreement.

“Early Termination Payment” is defined in Section 4.03(b) of this Agreement.

“Early Termination Rate” means LIBOR plus 100 basis points.

“Early Termination Schedule” is defined in Section 4.02 of this Agreement.

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“Existing Stockholders” means the stockholders of the Corporation immediately prior to the IPO as listed on Schedule A (including the Existing Stockholders Representative in its capacity as an Existing Stockholder) together with any Permitted Assignees.

“Existing Stockholders Representative” is defined in the preamble of this Agreement.

“Expert” is defined in Section 7.09 of this Agreement.

“Interest Amount” is defined in Section 3.01(b) of this Agreement.

“IPO” means the initial public offering of common stock of the Corporation pursuant to the registration statement on Form S-1 (File No. 333-[·]) of the Corporation.

“ITR Payment” means any Tax Benefit Payment, Divestiture Acceleration Payment or Early Termination Payment required to be made by the Corporation to the Existing Stockholders under this Agreement.

“ITR Tax Benefit” means (i) any interest required to be imputed under Section 1272, 1274 or 483 or other provision of the Code and any similar provision of state, local and foreign Tax law with respect to the Corporation’s payment obligations under this Agreement and (ii) any other deduction available to the Corporation attributable to the Corporation’s payment obligations under this Agreement.

“LIBOR” means, during any period, an interest rate per annum equal to the one-year LIBOR reported, on the date two days prior to the first day of such period, on the Reuters Screen page “LIBOR01” (or if such screen shall cease to be publicly available, as reported by any other publicly available source of such market rate) for London interbank offered rates for U.S. dollar deposits for such period.

“Material Objection Notice” is defined in Section 2.03(a) of this Agreement.

“Net Tax Benefit” is defined in Section 3.01(b) of this Agreement.

“NOLs” is defined in the recitals of this Agreement.

“Non-Tax Asset Tax Liability” means, with respect to any Taxable Year, the liability for Taxes of any Taxable Entity determined using the same methods, elections, conventions and similar practices used on the relevant Taxable Entity Return, but (i) without taking into account the Pre-IPO Tax Assets, if any, and (ii) excluding any deduction attributable to the ITR Tax Benefits.  If all or any portion of the liability for Taxes for the Taxable Year arises as a result of an audit by a Taxing Authority of such Taxable Year, such liability shall not be included in determining the Non-Tax Asset Tax Liability unless and until there has been a Determination with respect to such liability.

“Other Tax Assets” means any Post-IPO Tax Assets and any Acquired Tax Assets.

“Payment Date” means any date on which a payment is required to be made pursuant to this Agreement.

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“Permitted Assignee” means any Person who receives rights under this Agreement pursuant to a Permitted Assignment.

“Permitted Assignment” is defined in Section 7.06(b) of this Agreement.

“Person” means any individual, corporation, firm, partnership, joint venture, limited liability company, estate, trust, business association, organization, governmental entity or other entity.

“Post-IPO Tax Assets” means any Tax Asset arising in a Taxable Year or portion thereof beginning after the date of the IPO.

“Pre-IPO Tax Assets” is defined in the recitals of this Agreement; provided, however, that in order to determine whether a Tax Asset is a Pre-IPO Tax Asset, the Taxable Year of the relevant Taxable Entity that includes the effective date of the IPO shall be deemed to end as of the close of such effective date.

“Realized Tax Benefit” means, for a Taxable Year, the excess, if any, of the Non-Tax Asset Tax Liability over the actual liability for Taxes of the Taxable Entities for such Taxable Year.  If all or a portion of the actual Tax liability for Taxes for the Taxable Year arises as a result of an audit by a Taxing Authority of any Taxable Year, such liability shall not be included in determining the Realized Tax Benefit unless and until there has been a Determination with respect to such liability.

“Reconciliation Dispute” is defined in Section 7.09 of this Agreement.

“Reconciliation Procedures” means those procedures set forth in Section 7.09 of this Agreement.

“Schedule” means, as applicable, any Tax Benefit Schedule and the Early Termination Schedule.

“Subsidiaries” means, with respect to any Person, as of any date of determination, any other Person as to which such Person owns, directly or indirectly, or otherwise controls more than 50% of the voting power (or other similar interests) or the sole general partner interest or managing member or similar interest of such Person.

“Tax Asset” is defined in the recitals of this Agreement.

“Tax Benefit Payment” is defined in Section 3.01(b) of this Agreement.

“Tax Benefit Schedule” is defined in Section 2.02 of this Agreement.

“Tax Return” means any return, declaration, report or similar statement required to be filed with respect to Taxes (including any attached schedules), including, without limitation, any information return, claim for refund, amended return and declaration of estimated Tax.

“Taxable Entity” is defined in the recitals of this Agreement.

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“Taxable Entity Return” means the federal Tax Return and/or state and/or local and/or foreign Tax Return, as applicable, of a Taxable Entity filed with respect to Taxes of any Taxable Year.

“Taxable Year” means a taxable year as defined in Section 441(b) of the Code or comparable section of state, local or foreign Tax law, as applicable (and, therefore, for the avoidance of doubt, may include a period of less than 12 months for which a Tax Return is made), ending on or after the date hereof.

“Tax” and “Taxes” means any and all U.S. federal, state, local and foreign taxes, assessments or similar charges measured with respect to net income or profits, and any interest related to such taxes.

“Taxing Authority” means any domestic, foreign, federal, national, state, county or municipal or other local government, any subdivision, agency, commission or authority thereof, or any quasi-governmental body exercising any taxing authority or any other authority exercising Tax regulatory authority.

“Transferred Tax Assets” means, in the event of a Divestiture, the Pre-IPO Tax Assets attributable to the Taxable Entity that are sold in such Divestiture to the extent such Pre-IPO Tax Assets are transferred with such Taxable Entity under applicable Tax law following the Divestiture (disregarding any limitation on the use of such Pre-IPO Tax Assets as a result of the Divestiture) and do not remain under applicable Tax law with the Corporation or any of its Subsidiaries (other than the Taxable Entity that is sold in such Divestiture).

“Treasury Regulations” means the final, temporary and proposed regulations under the Code promulgated from time to time (including corresponding provisions and succeeding provisions) as in effect for the relevant taxable period.

“Valuation Assumptions” means, as of an Early Termination Date, the assumptions that (i) in the federal Taxable Years and each other Taxable Year ending on or after such Early Termination Date, the Taxable Entities will generate an amount of taxable income sufficient to fully use the Pre-IPO Tax Assets, (ii) the utilization of the Pre-IPO Tax Assets for such Taxable Year or future Taxable Years, as applicable, will be determined based on the Tax laws in effect on the Early Termination Date, and (iii) the federal income Tax rates and state, local and foreign income Tax rates that will be in effect for each such Taxable Year will be those specified for each such Taxable Year by the Code and other laws as in effect on the Early Termination Date (or, with respect to any Taxable Year for which such federal income Tax rates or state, local and foreign income Tax rates are not specified by the Code and other law as in effect on the Early Termination Date, such federal income Tax rates or state, local and foreign income Tax rates that are in effect on the Early Termination Date).  For the avoidance of doubt, in the event of a Change of Control or Divestiture, such assumptions shall not take into account any (i) Tax attributes (including Tax assets) of any entity other than the relevant Taxable Entity involved in the Change of Control or Divestiture or (ii) changes in the relevant Taxable Entities’ stand-alone Tax position that might result from the transaction giving rise to the Change of Control or Divestiture, including but not limited to changes pursuant to Section 382 of the Code any analogous provisions of federal, state, local or foreign Tax law.

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ARTICLE II

DETERMINATION OF REALIZED TAX BENEFIT

Section 2.01Pre-IPO Tax Assets.  The Corporation, on the one hand, and the Existing Stockholders, on the other hand, acknowledge that the Taxable Entities may utilize the Pre-IPO Tax Assets to reduce the amount of Taxes that the Taxable Entities would otherwise be required to pay in the future.

Section 2.02Tax Benefit Schedule.  Within forty-five (45) calendar days after the filing of the U.S. federal income Tax Return of the Corporation for any Taxable Year in which there is a Realized Tax Benefit (or as soon as practicable thereafter), the Corporation shall provide to the Existing Stockholders Representative a schedule showing, for the Corporation and for each other Taxable Entity, in reasonable detail, (i) the calculation of the Realized Tax Benefit for such Taxable Year, and (ii) the calculation of any payment to be made to the Existing Stockholders pursuant to ARTICLE III with respect to such Taxable Year (collectively, a “Tax Benefit Schedule”).  Concurrently, the Corporation shall also deliver to the Existing Stockholders Representative all supporting information (including work papers and valuation reports) reasonably necessary to support the calculation of such payment.  The Schedule will become final as provided in Section 2.03(a) and may be amended as provided in Section 2.03(b) (subject to the procedures set forth in Section 2.03(a)).

Section 2.03Procedures; Amendments.

(a)Procedure.  Each time the Corporation delivers to the Existing Stockholders Representative an applicable Schedule under this Agreement, including any Amended Schedule delivered pursuant to Section 2.03(b), and including any Early Termination Schedule or amended Early Termination Schedule, the Corporation shall also (x) deliver to the Existing Stockholders Representative the schedules, valuation reports, if any, and work papers necessary to provide reasonable detail regarding the preparation of the Schedule and an Advisory Firm Letter related to such Schedule (the cost and expense of which shall be paid by the Corporation) and (y) allow the Existing Stockholders Representative reasonable access at no cost to the appropriate representatives at each of the Corporation and the Advisory Firm in connection with a review of such Schedule.  The applicable Schedule shall become final and binding on all parties unless the Existing Stockholders Representative, within thirty (30) calendar days after receiving any Schedule or amendment thereto, provides the Corporation with notice of a material objection to such Schedule (a “Material Objection Notice”) made in good faith or such earlier date as the Stockholders Representative provides written notice to the Corporation that it has no material objection to such Schedule.  If the parties, for any reason, are unable to successfully resolve the issues raised in any Material Objection Notice within thirty (30) calendar days of receipt by the Corporation of such Material Objection Notice, the Corporation and the Existing Stockholders Representative shall employ the Reconciliation Procedures.

(b)Amended Schedule.  The applicable Schedule for any Taxable Year may be amended from time to time by the Corporation (i) in connection with a Determination affecting such Schedule, (ii) to correct material inaccuracies in the Schedule identified as a result of the receipt of additional factual information relating to a Taxable Year after the date the Schedule was provided to the

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Existing Stockholders Representative, (iii) to comply with the Expert’s determination under the Reconciliation Procedures, (iv) to reflect a material change (relative to the amounts in the original Schedule) in the Realized Tax Benefit for such Taxable Year attributable to a carryback or carryforward of a loss or other Tax item to such Taxable Year, or (v) to reflect a material change (relative to the amounts in the original Schedule) in the Realized Tax Benefit for such Taxable Year attributable to an amended Tax Return filed for such Taxable Year, in each case with respect to any Taxable Entity (such Schedule, an “Amended Schedule”); provided, however, that an amendment under clause (i) attributable to an audit of a Tax Return by an applicable Taxing Authority shall not be made on an Amended Schedule unless and until there has been a Determination with respect to such change. The Corporation shall provide any Amended Schedule to the Existing Stockholders Representative within thirty (30) calendar days of the occurrence of an event referred to in clauses (i) through (v) of the preceding sentence, and any such Amended Schedule shall be subject to approval procedures similar to those described in Section 2.03(a).

ARTICLE III

TAX BENEFIT PAYMENTS

Section 3.01Payments.

(a)Timing of Payments.  Except as provided in Section 5.02, within five (5) Business Days of a Tax Benefit Schedule delivered to the Existing Stockholders Representative becoming final in accordance with Section 2.03(a), the Corporation (on its own behalf and on behalf of any other Taxable Entity) shall pay to each Existing Stockholder for such Taxable Year its share (based on such Existing Stockholder’s Applicable Percentage) of the Tax Benefit Payment determined pursuant to Section 3.01(b).  Each such Tax Benefit Payment shall be made by wire transfer of immediately available funds to a bank account of the applicable Existing Stockholder previously designated by the Existing Stockholder to the Corporation, or as otherwise agreed by the Corporation and the Existing Stockholder.  For the avoidance of doubt, no Tax Benefit Payment shall be made in respect of estimated Tax payments, including, without limitation, estimated federal income Tax payments.

(b)A “Tax Benefit Payment” means an amount, not less than zero, equal to eighty-five percent (85%) of the sum of the Net Tax Benefit (as defined below) and the Interest Amount (as defined below).  The “Net Tax Benefit” shall equal: (i) the Taxable Entities’ Realized Tax Benefit, if any, for a Taxable Year plus (ii) the amount of the excess (if any) of the Realized Tax Benefit reflected on an Amended Schedule for a previous Taxable Year over the Realized Tax Benefit reflected on the Tax Benefit Schedule for such previous Taxable Year, minus (iii) the excess (if any) of the Realized Tax Benefit reflected on a Tax Benefit Schedule for a previous Taxable Year over the Realized Tax Benefit reflected on the Amended Schedule for such previous Taxable Year; provided, however, that, to the extent of the amounts described in clauses (ii) and (iii) of this definition were taken into account in determining any Tax Benefit Payment in a preceding Taxable Year, such amounts shall not be taken into account in determining a Tax Benefit Payment attributable to any other Taxable Year; provided, further, for the avoidance of doubt, that the Existing Stockholders shall not be required to return any portion of any previously made Tax Benefit Payment.  The “Interest Amount” shall equal the interest on any Net Tax Benefit calculated at the Agreed Rate from the due date (without extensions) for filing the Taxable

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Entity Return with respect to Taxes for the Taxable Year for which the Net Tax Benefit is being measured until the Payment Date.

Section 3.02No Duplicative Payments.  It is intended that the provisions of this Agreement will not result in duplicative payment of any amount (including interest) required under this Agreement, and this Agreement shall be construed and interpreted in accordance with such intention. Carryovers or carrybacks of any NOL or other Tax item shall be considered to be subject to the rules of the Code and the Treasury Regulations or the appropriate provisions of Tax law, as applicable, governing the use, limitation and expiration of carryovers or carrybacks of the relevant type; provided, however, that Pre-IPO Tax Assets treated as resulting in a Realized Tax Benefit for one Taxable Year shall not be treated as resulting in a Realized Tax Benefit for any other Taxable Year, and, for purposes of determining the Realized Tax Benefit for any Taxable Year, each Taxable Entity shall be assumed (a) to utilize any item of loss, deduction or credit arising in such Taxable Year (and permitted to be utilized in such Taxable Year) before carrying back or carrying forward to such Taxable Year any NOL or other Tax item that is permitted to be so carried back or carried forward, (b) to utilize any available Pre-IPO Tax Asset that is permitted (or, for the absence of doubt, that would be so permitted but for such Other Tax Asset) to be carried back or carried forward to such Taxable Year before utilizing any Other Tax Asset, and (c) to utilize any Pre-IPO Tax Asset in the first Taxable Year in which such Pre-IPO Tax Asset is permitted to be utilized If a carryover or carryback of any Tax item includes a portion that is attributable to the Pre-IPO Tax Assets and another portion that is not, the Corporation shall be assumed to utilize the portion attributable to the Pre-IPO Tax Assets before utilizing such other portion. The provisions of this Agreement shall be construed in the appropriate manner so that such intentions are realized.

ARTICLE IV

TERMINATION

Section 4.01Termination, Early Termination and Breach of Agreement.

(a)This Agreement shall terminate at the time that all Tax Benefit Payments have been made to the Existing Stockholders under this Agreement.

(b)Notwithstanding Section 4.01(a), the Corporation may terminate this Agreement by paying to the Existing Stockholders the Early Termination Payment.  Upon payment of the Early Termination Payment by the Corporation, neither the Corporation nor any Existing Stockholder shall have any further payment obligations under this Agreement, other than any (i) Tax Benefit Payment agreed to by the Corporation and the Existing Stockholders as due and payable but unpaid as of the Early Termination Notice and (ii) Tax Benefit Payment due for a Taxable Year ending prior to, with or including the date of the Early Termination Notice (except to the extent that such amount is included in the Early Termination Payment).

(c)In the event that the Corporation breaches any of its material obligations under this Agreement, whether as a result of failure to make any payment when due, failure to honor any other material obligation required hereunder or by operation of law as a result of the rejection of this

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Agreement in a case commenced under the Bankruptcy Code or otherwise, then all obligations hereunder shall be accelerated, and such obligations shall be calculated pursuant to this ARTICLE IV as if an Early Termination Notice had been delivered on the date of such breach and shall include, but not be limited to, (1) the Early Termination Payment calculated as if an Early Termination Notice had been delivered on the date of such breach, (2) any Tax Benefit Payment agreed to by the Corporation and the Existing Stockholders as due and payable but unpaid as of the Early Termination Notice and (3) any Tax Benefit Payment due for the Taxable Year ending prior to, with or including the date of a breach.  Notwithstanding the foregoing, in the event that the Corporation breaches this Agreement, the Existing Stockholders shall be entitled to elect to receive the amounts set forth in (1), (2) and (3) above or to seek specific performance of the terms hereof.  The parties agree that the failure to make any payment due pursuant to this Agreement within three (3) months of the date such payment is due shall be deemed to be a breach of a material obligation under this Agreement for all purposes of this Agreement, and that it will not be considered to be a breach of a material obligation under this Agreement to make a payment due pursuant to this Agreement within three (3) months of the date such payment is due; provided, that, in the event that payment is not made within three (3) months of the date such payment is due, the Existing Stockholders (through the Existing Stockholders Representative) shall be required to give written notice to the Corporation that the Corporation has breached its material obligations, and so long as such payment is made within five (5) Business Days of the delivery of such notice to the Corporation, the Corporation shall no longer be deemed to be in breach of its material obligations under this Agreement.

(d)Change of Control.  In the event of a Change of Control, all obligations hereunder shall be accelerated, and such obligations shall be calculated pursuant to this ARTICLE IV as if an Early Termination Notice had been delivered on the date of the Change of Control and shall include, but not be limited to, (1) the Early Termination Payment calculated as if an Early Termination Notice had been delivered on the effective date of the Change of Control, (2) any Tax Benefit Payment agreed to by the Corporation and the Existing Stockholders as due and payable but unpaid as of the Early Termination Notice and (3) any Tax Benefit Payment due for any Taxable Year ending prior to, with or including the effective date of a Change of Control.  No later than sixty (60) calendar days prior to such Change of Control (or promptly upon knowledge of such Change of Control), the Corporation shall deliver to the Existing Stockholders Representative an Early Termination Schedule (which, for the avoidance of doubt, shall be deemed to have been delivered on the date of the Change of Control) and the Existing Stockholders Representative shall have thirty (30) calendar days after actually receiving the Early Termination Schedule to provide the Corporation with a Material Objection Notice in accordance with the procedures set forth in Section 4.02 below.  In the event of a Change of Control, the Early Termination Payment shall be calculated utilizing the Valuation Assumptions, substituting in each case the phrase “closing date of a Change of Control” for the phrase “Early Termination Date.”

(e)Divestiture Acceleration Payment. In the event of a Divestiture, the Corporation shall pay to the Existing Stockholders the Divestiture Acceleration Payment in respect of such Divestiture, which shall be calculated utilizing the Valuation Assumptions.

Section 4.02Early Termination Notice.  If the Corporation chooses to exercise its right of early termination under Section 4.01 above, the Corporation shall deliver to the Existing Stockholders Representative notice of such intention to exercise such right (an “Early Termination Notice”) and a schedule (the “Early Termination Schedule”) specifying the Corporation’s intention to exercise such

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right and showing in reasonable detail the information required pursuant to Section 2.02 and the calculation of the Early Termination Payment.  In the event of a Divestiture, the Corporation shall deliver to the Existing Stockholders Representative no later than sixty (60) calendar days prior to such Divestiture (or promptly upon knowledge of such Divestiture) an Early Termination Schedule showing in reasonable detail the information required pursuant to Section 2.02 and the calculation of the Divestiture Acceleration Payment.  The Early Termination Schedule shall become final and binding on all parties unless the Existing Stockholders Representative, within thirty (30) calendar days after receiving the Early Termination Schedule, provides the Corporation with a Material Objection Notice.  If the parties, for any reason, are unable to successfully resolve the issues raised in such Material Objection Notice within thirty (30) calendar days after receipt by the Corporation of the Material Objection Notice, the Corporation and the Existing Stockholders Representative shall employ the Reconciliation Procedures as described in Section 7.09 of this Agreement.

Section 4.03Payment upon Early Termination.  (a) Within three (3) Business Days after agreement is reached between the Existing Stockholders Representative and the Corporation concerning the Early Termination Schedule, the Corporation shall pay to each Existing Stockholder its share (based on such Existing Stockholder’s Applicable Percentage) of an amount equal to the Early Termination Payment or Divestiture Acceleration Payment and any other payment required to be made pursuant to Sections 4.01(b), (c) and (d).  Such payment shall be made by wire transfer of immediately available funds to a bank account designated by the applicable Existing Stockholders, or as otherwise agreed by the Corporation and the Existing Stockholder.

(b)The “Early Termination Payment” means, as of the Early Termination Date, the present value, discounted at the Early Termination Rate as of such date, of all Tax Benefit Payments that would be required to be paid by the Corporation to the Existing Stockholders beginning from the Early Termination Date (other than a payment which is not required to be paid solely by reason of the application of Section 5.02), assuming the Valuation Assumptions are applied, provided that in the event of a Change of Control, the Early Termination Payment shall be calculated without giving effect to any limitation on the use of the Pre-IPO Tax Assets resulting from the Change of Control.  For purposes of calculating, pursuant to this Section 4.03(b), the present value of all Tax Benefit Payments that would be required to be paid, it shall be assumed that, absent the Early Termination Notice, all Tax Benefit Payments would be paid on the due date (without extensions) for filing the relevant Taxable Entity Return with respect to Taxes for each Taxable Year. The computation of the Early Termination Payment is subject to the Reconciliation Procedures as described in Section 7.09 of this Agreement.

(c)The “Divestiture Acceleration Payment” as of the date of any Divestiture shall equal with respect to the Existing Stockholders the present value, discounted at the Early Termination Rate as of such date, of the Tax Benefit Payments resulting solely from the Transferred Tax Assets that would be required to be paid by the Corporation to the Existing Stockholders beginning from the date of such Divestiture assuming the Valuation Assumptions are applied, provided that the Divestiture Acceleration Payment shall be calculated without giving effect to any limitation on the use of the Transferred Tax Assets resulting from the Divesture. For purposes of calculating the present value pursuant to this Section 4.03(c) of all Tax Benefit Payments that would be required to be paid, it shall be assumed that, absent the Divestiture, all Tax Benefit Payments would be paid on the due date (without extensions) for filing the relevant Taxable Entity Return with respect to Taxes for each Taxable Year. The

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computation of the Divestiture Acceleration Payment is subject to the Reconciliation Procedures as described in Section 7.09 of this Agreement.

ARTICLE V

LATE PAYMENTS AND COMPLIANCE WITH INDEBTEDNESS

Section 5.01Late Payments by the Corporation.  The amount of all or any portion of any ITR Payment not made to the Existing Stockholders when due under the terms of this Agreement shall be payable together with any interest thereon, computed at the Default Rate and commencing from the date on which such ITR Payment was due and payable.

Section 5.02Compliance with Indebtedness.  Notwithstanding anything to the contrary provided herein, if at the time any amounts become due and payable hereunder the Corporation is not permitted, pursuant to the terms of the Corporation’s or its direct or indirect Subsidiaries’ debt documentation, to pay such amounts, or the Corporation’s direct or indirect Subsidiaries are not permitted, pursuant to the terms of the Corporation’s or its direct or indirect Subsidiaries’ debt documentation, to make payments to the Corporation to allow the Corporation to pay such amounts, then the Corporation shall by notice to the Existing Stockholders Representative be permitted to defer the payment of such amounts until each condition rendering the payment of such amounts impermissible as described in this Section 5.02 is no longer applicable.   At the time such condition is no longer applicable and no other such condition exist, such amounts (together with accrued and unpaid interest thereon as described in the immediately following sentence) shall become due and payable immediately.  If the Corporation defers the payment of any such amounts pursuant to the first sentence in this Section 5.02, such amounts shall accrue interest at the Agreed Rate per annum from the date that such amounts originally became due and owing pursuant to the terms hereof to the date that such amounts were paid.  For the avoidance of doubt, any payment not made due to the preceding sentence shall not be deemed a breach under Section 4.01(c) of this Agreement unless and until such payment remains unpaid thirty (30) calendar days after the date on which such condition described in this Section 5.02 is no longer applicable.  The Corporation agrees to take commercially reasonable actions to cause its direct and indirect Subsidiaries to pay dividends (including, to the extent commercially reasonable, access any revolving credit facility or other source of liquidity to facilitate the payment of such dividends), to the extent consistent with the terms of their outstanding indebtedness and any applicable law, to the extent necessary to make payments hereunder.

Section 5.03Conflicting Agreements.  Without the consent of the Existing Stockholders Representative, the Corporation shall not, and shall cause its direct or indirect Subsidiaries to not, enter into any agreement or indenture or any amendment or other modification to any agreement or indenture (including, in each case, in connection with any refinancing) that would, directly or indirectly, materially restrict or otherwise encumber (or in the case of amendments or other modifications, further restrict or encumber) its ability to make payments under this Agreement in accordance with its terms, including any agreement that would, directly or indirectly, restrict or otherwise encumber (or in the case of amendments or other modifications, further restrict or encumber) the ability of the Corporation’s direct or indirect Subsidiaries to upstream cash (by dividend or loan) to the Corporation to fund amounts payable by the Corporation under this Agreement.

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ARTICLE VI

NO DISPUTES; CONSISTENCY; COOPERATION

Section 6.01The Existing Stockholders Representative’s Participation in the Corporation’s Tax Matters.  Except as otherwise provided herein, the Corporation shall have full responsibility for, and sole discretion over, all Tax matters concerning the each Taxable Entity, including, without limitation, the preparation, filing or amendment of any Tax Return and the defense, contest, or settlement of any issue pertaining to Taxes, subject to a requirement that the Corporation act in good faith in connection with its control of any matter which is reasonably expected to affect any Existing Stockholder’s rights and obligations under this Agreement.  Notwithstanding the foregoing, the Corporation shall notify the Existing Stockholders Representative of, and keep the Existing Stockholders Representative reasonably informed with respect to, the portion of any audit of any Taxable Entity by a Taxing Authority the outcome of which is reasonably expected to affect any Existing Stockholder’s rights and obligations under this Agreement, and shall give the Existing Stockholders Representative reasonable opportunity to provide information and participate in the applicable portion of such audit. Notwithstanding anything herein to the contrary, without the consent of the Existing Stockholders Representative, which consent the Existing Stockholders Representative shall not unreasonably withhold, condition or delay, the Corporation shall not, and shall cause each other Taxable Entity not to, (i) change any accounting method, or amend or take any position inconsistent with a previously-filed Taxable Entity Return, in each case if such action could materially adversely affect the Pre-IPO Tax Assets, (ii) seek any guidance from, or initiate any communication with, the Internal Revenue Service or any other Taxing Authority (whether written, verbal or otherwise) at any time concerning the Pre-IPO Tax Assets, or (iii) settle or otherwise resolve any audit or other challenge by a Taxing Authority of a material amount relating to Realized Tax Benefits that are the subject of this Agreement.

Section 6.02Consistency.  Except upon the written advice of the Advisory Firm, the Corporation and the Existing Stockholders Representative agree to report and cause to be reported for all purposes, including federal, state, local, and foreign Tax purposes and financial reporting purposes, all Tax-related items (including, without limitation, ITR Payments) in a manner consistent with that specified by the Corporation in any Schedule or statement required or permitted to be provided by or on behalf of the Corporation or any Taxable Entity under this Agreement and agreed by the Existing Stockholders Representative or under applicable Tax law.  Any dispute concerning such advice shall be subject to the Reconciliation Procedures; provided, however, that, only the Existing Stockholders Representative shall have the right to object to such advice pursuant this Section 6.02.

Section 6.03Cooperation.  Each of the Corporation and the Existing Stockholders (through the Existing Stockholders Representative) shall (a) furnish to the other party in a timely manner such information, documents and other materials as the other party may reasonably request for purposes of making or approving any determination or computation necessary or appropriate under this Agreement, preparing any Tax Return or contesting or defending any audit, examination or controversy with any Taxing Authority, (b) make itself available to the other party and its representatives to provide explanations of documents and materials and such other information as the requesting party or its representatives may reasonably request in connection with any of the matters described in clause (a) above, and (c) reasonably cooperate in connection with any such matter, and the requesting party shall

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reimburse the other party for any reasonable third-party costs and expenses incurred pursuant to this Section 6.03.

ARTICLE VII

MISCELLANEOUS

Section 7.01Notices.  All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be deemed duly given and received (a) on the date of delivery, if delivered personally, or by facsimile (upon confirmation of transmission by the sender’s fax machine if sent on a Business Day (or otherwise on the next Business Day)) or (b) on the first Business Day following the date of dispatch, if delivered by a recognized next-day courier service. All notices hereunder shall be delivered as set forth below or pursuant to such other instructions as may be designated in writing by the party to receive such notice:

If to the Corporation, to:

AdvancePierre Foods Holdings, Inc.

9987 Carver Road

Blue Ash, Ohio 45242

800-969-2747

Attention:  Michael B. Sims

with a copy (which shall not constitute notice) to :

Skadden, Arps, Slate, Meagher & Flom LLP

300 South Grand Avenue, Suite 3400

Los Angeles, CA 90071

213-687-5000

Attention:  Jeffrey H. Cohen and Jonathan Ko

If to the Existing Stockholders Representative, to:

OCM FIE, LLC

333 South Grand Avenue, 28th Floor

Los Angeles, CA 90071

213-830-6300

Attention:  Ted Crockin

Any party may change its address or fax number by giving the other party written notice of its new address or fax number in the manner set forth above.

Section 7.02Counterparts.  This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties, it being understood that all parties need not sign the same counterpart.  Delivery of an executed signature page to this Agreement by facsimile transmission shall be as effective as delivery of a manually signed counterpart of this Agreement.

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Section 7.03Entire Agreement; Third Party Beneficiaries.  This Agreement constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof.  This Agreement shall be binding upon and inure solely to the benefit of each party hereto and their respective successors and permitted assigns.  The parties to this Agreement agree that the Existing Stockholders are expressly made third party beneficiaries to this Agreement.  Other than as provided in the preceding sentence, nothing in this Agreement, express or implied, is intended to, or shall, confer upon any other Person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

Section 7.04Governing Law.  This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York.

Section 7.05Severability.  If any term or other provision of this Agreement is determined to be invalid, illegal or incapable of being enforced as a result of any law or public policy, all other terms and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party.  Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner, in order that the transactions contemplated hereby may be consummated as originally contemplated to the greatest extent possible.

Section 7.06Successors; Assignment; Amendments; Waivers.  (a) The Existing Stockholders Representative, in its capacity as the Existing Stockholders Representative, may assign this Agreement to any Person without the prior written consent of the Corporation or the Existing Stockholders, as long as such transferee has executed and delivered, or, in connection with such transfer, executes and delivers, a joinder to this Agreement, in form and substance reasonably satisfactory to the Corporation, agreeing to be bound by all provisions of this Agreement, except as otherwise provided in such joinder.

(b)Except as otherwise provided in this Agreement, no Existing Stockholder may assign its rights under this Agreement without the prior written consent of the Existing Stockholders Representative.  Any assignment of an Existing Stockholder’s rights meeting the requirements of this paragraph shall be referred to herein as a “Permitted Assignment,” and Schedule A hereto shall be amended to reflect such Permitted Assignment and the change in the Applicable Percentage of the assignor and assignee.

(c)No provision of this Agreement may be amended unless such amendment is approved in writing by the Corporation and the Existing Stockholders (through the Existing Stockholders Representative).  No provision of this Agreement may be waived unless such waiver is in writing and signed by the party against whom the waiver is to be effective.

(d)All of the terms and provisions of this Agreement shall be binding upon, shall inure to the benefit of and shall be enforceable by the parties hereto and their respective successors, assigns, heirs, executors, administrators and legal representatives, including any Permitted Assignee pursuant to a Permitted Assignment.  The Corporation shall require and cause any direct or indirect

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successor (whether by purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of the Corporation, by written agreement, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that the Corporation would be required to perform if no such succession had taken place.

Section 7.07Headings, Titles, and Subtitles.  The headings, titles, and subtitles of the sections and subsections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement.

Section 7.08Resolution of Disputes.

(a)Other than with respect to any disputes under Section 2.02, Section 4.02, or Section 6.02 (which are to be resolved pursuant to Section 7.09), any and all disputes which cannot be settled amicably, including any ancillary claims of any party, arising out of, relating to or in connection with the validity, negotiation, execution, interpretation, performance or non-performance of this Agreement (including the validity, scope and enforceability of this arbitration provision) shall be finally settled by arbitration conducted by a single arbitrator in accordance with the then existing Rules of Arbitration of the International Chamber of Commerce.  The place of arbitration shall be New York, New York.  The parties shall jointly select a single arbitrator who shall have the authority to hold hearings and to render a decision in accordance with the then existing Rules of Arbitration of the International Chamber of Commerce.  If the parties to the dispute fail to agree on the selection of an arbitrator within thirty (30) calendar days of the receipt of the request for arbitration, the arbitrator shall be selected by the International Chamber of Commerce.  The arbitrator shall be a lawyer.  The arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. Section 1, et seq., and judgment on the award may be entered by any court having jurisdiction thereof.  Performance under this Agreement shall continue if reasonably possible during any arbitration proceedings.

(b)Notwithstanding the provisions of Section 7.08(a), either party may bring an action or special proceeding in any court of competent jurisdiction for the purpose of compelling a party to arbitrate, seeking temporary or preliminary relief in aid of an arbitration hereunder, and/or enforcing an arbitration award and, for the purposes of this Section 7.08(b), each Existing Stockholder (through the Existing Stockholders Representative) (i) expressly consents to the application of Section 7.08(c) to any such action or proceeding, and (ii) irrevocably appoints the Corporation as its agent for service of process in connection with any such action or proceeding and agrees that service of process upon such agent, who shall promptly advise the Existing Stockholders Representative of any such service of process, shall be deemed in every respect effective service of process upon such Existing Stockholder in any such action or proceeding.

(c)(i)THE CORPORATION AND EACH EXISTING STOCKHOLDER (THROUGH THE EXISTING STOCKHOLDERS REPRESENTATIVE) HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF COURTS LOCATED IN NEW YORK AND AGREES THAT ANY JUDICIAL PROCEEDING BROUGHT IN ACCORDANCE WITH THE PROVISIONS OF Section 7.08(b) SHALL BE BROUGHT AND DETERMINED EXCLUSIVELY IN THE SUPREME COURT OF THE STATE OF NEW YORK AND ANY STATE APPELLATE COURT THEREFROM WITHIN THE STATE OF

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NEW YORK (OR, IF THE SUPREME COURT OF THE STATE OF NEW YORK REFUSES TO ACCEPT JURISDICTION OVER A PARTICULAR MATTER, ANY STATE OR FEDERAL COURT WITHIN THE STATE OF NEW YORK).  The parties acknowledge that the forum designated by this Section 7.08(c) has a reasonable relation to this Agreement and to the parties’ relationship with one another.

(ii)The parties hereby waive, to the fullest extent permitted by applicable law, any objection which they now or hereafter may have to personal jurisdiction or to the laying of venue of any such ancillary suit, action or proceeding brought in any court referred to in Section 7.08(c)(i) and such parties agree not to plead or claim the same.

(iii)AS A SPECIFICALLY BARGAINED INDUCEMENT FOR EACH OF THE PARTIES TO ENTER INTO THIS AGREEMENT (WITH EACH PARTY HAVING HAD OPPORTUNITY TO CONSULT COUNSEL), EACH OF THE PARTIES EXPRESSLY AND IRREVOCABLY WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING UNDER THIS AGREEMENT OR ANY ACTION OR PROCEEDING ARISING OUT OF THE TRANSACTIONS CONTEMPLATED HEREBY, REGARDLESS OF WHICH PARTY INITIATES SUCH ACTION OR PROCEEDING, AND ANY ACTION OR PROCEEDING UNDER THIS AGREEMENT OR ANY ACTION OR PROCEEDING ARISING OUT OF THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.

Section 7.09Reconciliation Procedures.  In the event that the Corporation and the Existing Stockholders Representative are unable to resolve a disagreement with respect to the matters governed by this Agreement (a “Reconciliation Dispute”), the Reconciliation Dispute shall be submitted for determination to a nationally recognized expert in the particular area of disagreement (the “Expert”) mutually acceptable to both parties.  The Expert shall be a partner in a nationally recognized accounting firm or a law firm (other than the Advisory Firm), and the Expert shall not, and the firm that employs the Expert shall not, have any material relationship with the Corporation or any of the Existing Stockholders or any other actual or potential conflict of interest.  If the parties are unable to agree on an Expert within fifteen (15) days of receipt by the respondent(s) of written notice of a Reconciliation Dispute, the Expert shall be appointed by the International Institute for Conflict Prevention and Resolution. The Expert shall resolve any matter relating to the Early Termination Schedule or an amendment thereto within thirty (30) calendar days and shall resolve any matter relating to a Tax Benefit Schedule or an amendment thereto within fifteen (15) calendar days or as soon thereafter as is reasonably practicable, in each case after the matter has been submitted to the Expert for resolution. Notwithstanding the preceding sentence, if the Reconciliation Dispute is not resolved before any payment that is the subject of the Reconciliation Dispute is due or any Tax Return reflecting the subject of the Reconciliation Dispute is due, such payment shall be made on the date prescribed by this Agreement and such Tax Return may be filed as prepared by the Corporation, subject to adjustment or amendment upon resolution.  The costs and expenses relating to the engagement of such Expert or the amendment of any Tax Return shall be borne by the Corporation, except as provided in the next sentence.  Each of the Corporation and the Existing Stockholders shall bear their own costs and expenses of such proceeding.  Any dispute as to whether a dispute is a Reconciliation Dispute, within the meaning of this Section 7.09 shall be decided by the Expert.  The Expert shall finally

17

determine any Reconciliation Dispute and the determinations of the Expert pursuant to this Section 7.09 shall be binding on the Corporation and the Existing Stockholders and may be entered and enforced in any court having jurisdiction.

Section 7.10Withholding.  The Corporation shall be entitled to deduct and withhold from any payment payable pursuant to this Agreement such amounts as the Corporation is required to deduct and withhold with respect to the making of such payment under the Code, or any applicable provision of state, local or foreign Tax law, provided that with respect to the Existing Stockholders only, the Corporation (i) gives ten (10) days advance written notice of its intention to make such withholding to the Existing Stockholders Representative, (ii) identifies the legal basis requiring such withholding and (iii) gives the Existing Stockholders Representative an opportunity to establish that such withholding is not legally required. To the extent that amounts are so withheld and paid over to the appropriate Taxing Authority by the Corporation, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Existing Stockholders. The Corporation shall provide evidence of such payments to the Existing Stockholders (through the Existing Stockholders Representative) to the extent that such evidence is available.

Section 7.11Affiliated Corporations; Admission of the Corporation into a Consolidated Group; Transfers of Corporate Assets.

(a)If the Corporation is or becomes a member of an affiliated or consolidated group of corporations that files a consolidated income Tax Return pursuant to Sections 1501 et seq. of the Code, or any corresponding provisions of state, local or foreign law (other than if the Corporation becomes a member of such a group as a result of a Change of Control, in which case the provisions of ARTICLE IV shall control), then: (i) the provisions of this Agreement shall be applied with respect to the group as a whole; and (ii) Tax Benefit Payments shall be computed with reference to the consolidated taxable income of the group as a whole.

(b)If any Taxable Entity is or becomes a member of a Combined Taxation Group for purposes of state or foreign income Taxes (other than if a Taxable Entity becomes a member of such a group as a result of a Change of Control or Divestiture, in which cases the provisions of ARTICLE IV shall control), then: (i) the provisions of this Agreement shall be applied with respect to the group as a whole; and (ii) Tax Benefit Payments shall be computed with reference to the combined taxable income of the group as a whole.

(c)If any Person the income of which is included in the income of any Taxable Entity’s Combined Taxation Group transfers one or more assets to a corporation or any Person treated as such for Tax purposes with which such Person does not file a consolidated Tax Return pursuant to Section 1501 of the Code, for purposes of calculating the amount of any Tax Benefit Payment (e.g., calculating the gross income of the Corporation’s affiliated or consolidated group and determining the Realized Tax Benefit) due hereunder, such Person shall be treated as having disposed of such asset in a fully taxable transaction on the date of such transfer.  The consideration deemed to be received by such entity shall be equal to the fair market value of the transferred asset, plus (i) the amount of debt to which such asset is subject, in the case of a transfer of an encumbered asset, or (ii) the amount of debt allocated to such asset, in the case of a transfer of a partnership interest.

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Section 7.12Confidentiality.  (a)  Each Existing Stockholder (through the Existing Stockholders Representative) and each of its assignees acknowledges and agrees that the information of the Corporation is confidential and, except in the course of performing any duties as necessary for the Corporation and its Affiliates, as required by law or legal process or to enforce the terms of this Agreement, shall keep and retain in the strictest confidence and not to disclose to any Person all confidential matters, acquired pursuant to this Agreement, of the Corporation or the Existing Stockholders.  This Section 7.12 shall not apply to (i) any information that has been made publicly available by the Corporation or any of its Affiliates, becomes public knowledge (except as a result of an act of an Existing Stockholder in violation of this Agreement) or is generally known to the business community or (ii) the disclosure of information to the extent necessary for any Existing Stockholder to prepare and file its Tax Returns, to respond to any inquiries regarding the same from any Taxing Authority or to prosecute or defend any action, proceeding or audit by any Taxing Authority with respect to such returns.  Notwithstanding anything to the contrary herein, each Existing Stockholder (and each employee, representative or other agent of such Existing Stockholder) may disclose to any and all Persons, without limitation of any kind, the Tax treatment and Tax structure of (x) the Corporation and (y) any of its transactions, and all materials of any kind (including opinions or other Tax analyses) that are provided to such Existing Stockholder relating to such Tax treatment and Tax structure.

(b)If the Existing Stockholders Representative or any of its assignees commits a breach, or threatens to commit a breach, of any of the provisions of this Section 7.12, the Corporation shall have the right and remedy to have the provisions of this Section 7.12 specifically enforced by injunctive relief or otherwise by any court of competent jurisdiction without the need to post any bond or other security, it being acknowledged and agreed that any such breach or threatened breach shall cause irreparable injury to the Corporation or any of its Subsidiaries and the accounts and funds managed by the Corporation, and that money damages alone shall not provide an adequate remedy to such Persons.  Such rights and remedies shall be in addition to, and not in lieu of, any other rights and remedies available at law or in equity.

Section 7.13Existing Stockholders Representative.

(a)Appointment.  Without further action of any of the Corporation, the Existing Stockholders Representative or any Existing Stockholder, and as partial consideration of the benefits conferred by this Agreement, the Existing Stockholders Representative is hereby irrevocably constituted and appointed to act as the sole representative, agent and attorney-in-fact for the Existing Stockholders and their successors and assigns with respect to the taking by the Existing Stockholders Representative of any and all actions and the making of any decisions required or permitted to be taken by the Existing Stockholders Representative under this Agreement.  The power of attorney granted herein is coupled with an interest and is irrevocable and may be delegated by the Existing Stockholders Representative.  No bond shall be required of the Existing Stockholders Representative, and the Existing Stockholders Representative shall receive no compensation for its services.

(b)Expenses.  If at any time the Existing Stockholders Representative shall incur out of pocket expenses in connection with the exercise of its duties hereunder, upon written notice to the Corporation from the Existing Stockholders Representative of documented costs and expenses (including fees and disbursements of counsel and accountants) incurred by the Existing Stockholders Representative

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in connection with the performance of its rights or obligations under this Agreement and the taking of any and all actions in connection therewith, the Corporation shall reduce any future payments (if any) due to the Existing Stockholders hereunder pro rata (based on their respective Applicable Percentages) by the amount of such expenses which it shall instead remit directly to the Existing Stockholders Representative.  In connection with the performance of its rights and obligations under this Agreement and the taking of any and all actions in connection therewith, the Existing Stockholders Representative shall not be required to expend any of its own funds (though, for the avoidance of doubt, it may do so at any time and from time to time in its sole discretion).

(c)Limitation on Liability.  The Existing Stockholders Representative shall not be liable to any Existing Stockholder for any act of the Existing Stockholders Representative arising out of or in connection with the acceptance or administration of its duties under this Agreement, except to the extent any liability, loss, damage, penalty, fine, cost or expense is actually incurred by such Existing Stockholder as a proximate result of the gross negligence, bad faith or willful misconduct of the Existing Stockholders Representative (it being understood that any act done or omitted pursuant to the advice of legal counsel shall be conclusive evidence of such good faith and reasonable judgment).  The Existing Stockholders Representative shall not be liable for, and shall be indemnified by the Existing Stockholders (on a several but not joint basis) for, any liability, loss, damage, penalty or fine incurred by the Existing Stockholders Representative (and any cost or expense incurred by the Existing Stockholders Representative in connection therewith and herewith and not previously reimbursed pursuant to subsection (b) above) arising out of or in connection with the acceptance or administration of its duties under this Agreement, except to the extent that any such liability, loss, damage, penalty, fine, cost or expense is the proximate result of the gross negligence, bad faith or willful misconduct of the Existing Stockholders Representative (it being understood that any act done or omitted pursuant to the advice of legal counsel shall be conclusive evidence of such good faith and reasonable judgment); provided, however, in no event shall any Existing Stockholder be obligated to indemnify the Existing Stockholders Representative hereunder for any liability, loss, damage, penalty, fine, cost or expense to the extent (and only to the extent) that the aggregate amount of all liabilities, losses, damages, penalties, fines, costs and expenses indemnified by such Existing Stockholder hereunder is or would be in excess of the aggregate payments under this Agreement actually remitted to such Existing Stockholder.  Each Existing Stockholder’s receipt of any and all benefits to which such Existing Stockholder is entitled under this Agreement, if any, is conditioned upon and subject to such Existing Stockholder’s acceptance of all obligations, including the obligations of this Section 7.13(c), applicable to such Existing Stockholder under this Agreement.

(d)Actions of the Existing Stockholders Representative.  Any decision, act, consent or instruction of the Existing Stockholders Representative shall constitute a decision of all Existing Stockholders and shall be final, binding and conclusive upon each Existing Stockholder, and the Corporation may rely upon any decision, act, consent or instruction of the Existing Stockholders Representative as being the decision, act, consent or instruction of each Existing Stockholder.   The Corporation is hereby relieved from any liability to any person for any acts done by the Corporation in accordance with any such decision, act, consent or instruction of the Existing Stockholders Representative.

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Section 7.14Drag-Along Rights.  Each Existing Stockholder hereby agrees that the Existing Stockholders Representative may, at any time and in its sole discretion, elect to enter into a transaction which is likely to result in the assignment, in whole or in part, of this Agreement to a Person (upon such election, an “Approved Assignment”), and each such Existing Stockholder will raise no objections against such Approved Assignment, regardless of the consideration (if any) being paid in such Approved Assignment, so long as such Approved Assignment does not materially and adversely impact such Existing Stockholders in a manner materially adverse to the other Existing Stockholders. Each Existing Stockholder will take all actions requested by the Existing Stockholders Representative in connection with the consummation of an Approved Assignment, including the execution of all agreements, documents and instruments in connection therewith requested by the Existing Stockholders Representative of such Existing Stockholder. Upon the consummation of the Approved Assignment, each Existing Stockholder will receive their Applicable Percentage of such consideration, if any, relating to such Approved Assignment. Existing Stockholders will bear their Applicable Percentage of the costs of any Approved Assignment to the extent such costs are incurred for the benefit of all Existing Stockholders.

Section 7.15Tag-Along Rights.  Unless the Existing Stockholders Representative elects to exercise its rights pursuant to Section 7.14, if the Existing Stockholders Representative (solely in its capacity as an Existing Stockholder) (in such capacity, the “Transferring Stockholder”) proposes to assign a portion of its rights under this Agreement to a third-party (such Person, a “Prospective Purchaser,” and such transaction, a “Tag-Along Sale”), then, prior to proceeding with such Tag-Along Sale, the Transferring Stockholder will deliver to the other Existing Stockholders (the “Other Existing Stockholders”) a written notice stating that the Transferring Stockholder proposes to assign a portion of its rights under this Agreement and the consideration to be paid by the Prospective Purchaser.  Each Other  Existing Stockholder may elect to assign a portion its rights under this Agreement on the same terms and conditions as the Transferring Stockholder.  Within ten (10) days after receipt of such written notice, if an Other Existing Stockholder elects to participate in such Tag-Along Sale, such Other Existing Stockholder will deliver written notice to the Transferring Stockholder stating the rights to be assigned by such Other Existing Stockholder.  If the Prospective Purchaser will not acquire all of the rights of the Transferring Stockholder and the electing Other Existing Stockholders, then the rights proposed to be assigned by the Transferring Stockholder and the electing Other Existing Stockholders will be ratably reduced to that which the Prospective Purchaser is willing to acquire.  Each electing Other Existing Stockholder will take all actions requested by the Transferring Stockholder in connection with the consummation of a Tag-Along Sale, including the execution of all agreements, documents and instruments in connection therewith requested by the Transferring Stockholder of such Other Existing Stockholder.  The Transferring Stockholder and the electing Other Existing Stockholders will bear their Applicable Percentage of the costs of a Tag-Along Sale.

[Signatures pages follow]

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IN WITNESS WHEREOF, the Corporation and the Existing Stockholders Representative have duly executed this Agreement as of the date first written above.

AdvancePierre Foods Holdings, Inc.
By:
	Name:
	Title:
OCM FIE, LLC
as Existing Stockholders Representative
By:
	Name:
	Title:

[Signature page to Income Tax Receivable Agreement]

Schedule A

Existing Stockholder	Applicable Percentage
OCM Principal Opportunities Fund IV Delaware, L.P.	[    ]	%
OCM APFH Holdings, LLC	[    ]	%
David L. McLaughlin Revocable Trust	[    ]	%
Jean E. McLaughlin Revocable Trust	[    ]	%
Gregory S. Allen Revocable Trust	[    ]	%
1998 Greg S. Allen Family Trust	[    ]	%
1998 Mark S. Allen Family Trust	[    ]	%
Allen Family 2009 Trust	[    ]	%
David McLaughlin Family 2009 Trust	[    ]	%
Jean McLaughlin Family 2009 Trust	[    ]	%
Allen-McLaughlin Holdings APF Holdings, LLC	[    ]	%
Steve Beatty	[    ]	%
Scott Benne	[    ]	%
Steve Booker	[    ]	%
Margaret Cannella	[    ]	%
Chris Chansky	[    ]	%
George Chappelle	[    ]	%
Celeste Clark	[    ]	%
Jim Clough	[    ]	%
April Darre	[    ]	%
Tom Ferris	[    ]	%

Bryan Freeman	[    ]	%
Ed Frentress	[    ]	%
Eddie Gonzalez	[    ]	%
Dean Hollis	[    ]	%
Serge Lehenaff	[    ]	%
Mike Leiker	[    ]	%
Martin Madsen	[    ]	%
Rob Marlow	[    ]	%
Mario Mendez	[    ]	%
David Minx	[    ]	%
Tim Nangle	[    ]	%
Bernie Panchot	[    ]	%
Gary Perlin	[    ]	%
Michael Reilly	[    ]	%
Katherine Reilly	[    ]	%
Douglas Santschi	[    ]	%
Tony Schroder	[    ]	%
John Simons	[    ]	%
Michael Sims	[    ]	%
Bill Theis	[    ]	%
Dave Tipton	[    ]	%

2

EX-10.5

Exhibit 10.5

EXECUTION COPY

$1,300,000,000

TERM LOAN CREDIT AGREEMENT

among

ADVANCEPIERRE FOODS HOLDINGS, INC.,

PIERRE HOLDCO, INC.,

ADVANCEPIERRE FOODS, INC.,

VARIOUS LENDERS

and

MORGAN STANLEY SENIOR FUNDING, INC.,

as ADMINISTRATIVE AGENT and SECURITY AGENT

Dated as of June 2, 2016

MORGAN STANLEY SENIOR FUNDING, INC. DEUTSCHE BANK SECURITIES INC.

BARCLAYS BANK
PLC CREDIT SUISSE
SECURITIES (USA)
LLC MACQUARIE
CAPITAL (USA)
INC. MERRILL LYNCH,
PIERCE, FENNER
& SMITH
INCORPORATED

as JOINT LEAD ARRANGERS and JOINT BOOK-RUNNING MANAGERS

DEUTSCHE BANK SECURITIES INC.,
as DOCUMENTATION AGENT DEUTSCHE BANK SECURITIES INC.,
as SYNDICATION AGENT

TABLE OF CONTENTS

		Page
SECTION 1.	Definitions and Accounting Terms	1
1.01	Defined Terms	1
1.02	Other Definitional Provisions	43
1.03	Limited Condition Acquisition	43
SECTION 2.	Amount and Terms of Credit	44
2.01	The Commitments	44
2.02	Minimum Amount of Each Borrowing	44
2.03	Notice of Borrowing	45
2.04	Disbursement of Funds	45
2.05	Notes	46
2.06	Conversions and Continuations	46
2.07	Pro Rata Borrowings	47
2.08	Interest	47
2.09	Interest Periods	47
2.10	Increased Costs, Illegality, etc.	48
2.11	Compensation	50
2.12	Change of Lending Office	51
2.13	Replacement of Lenders	51
2.14	Incremental Credit Extensions	52
2.15	Loan Repurchases	53
2.16	Extensions of Loans	55
2.17	Refinancing Amendments	57
SECTION 3.	Fees; Reductions of Commitment	58
3.01	Fees	58
3.02	Mandatory Reduction of Commitments	58
SECTION 4.	Prepayments; Payments; Taxes	58
4.01	Voluntary Prepayments	58
4.02	Mandatory Repayments	59
4.03	Method and Place of Payment	62
4.04	Net Payments	62
SECTION 5.	Conditions Precedent to the Effective Date	66
5.01	Effective Date; Notes	66
5.02	Officer’s Certificate	66
5.03	Opinions of Counsel	66
5.04	Company Documents; Proceedings; etc.	67
5.05	[Reserved]	67
5.06	[Reserved]	67
5.07	Consummation of the Refinancing; Amendment of the ABL Credit Agreement	67
5.08	[Reserved]	68
5.09	Guaranty; Intercompany Subordination Agreement	68
5.10	Fees, etc.	68

5.11	Intercreditor Agreement	68
5.12	Security Agreements	68
5.13	ABL Credit Agreement	69
5.14	Financial Statements	69
5.15	Solvency Certificate; Insurance Certificates	69
SECTION 6.	Additional Conditions Precedent to the Incurrence of Loan	70
6.01	No Default; Representations and Warranties	70
6.02	Notice of Borrowing	70
SECTION 7.	Representations, Warranties and Agreements	70
7.01	Company Status	70
7.02	Power and Authority	70
7.03	No Violation	71
7.04	Approvals	71
7.05	Financial Statements; Financial Condition; Projections	71
7.06	Litigation	72
7.07	True and Complete Disclosure	72
7.08	Use of Proceeds; Margin Regulations	72
7.09	Tax Returns and Payments	72
7.10	Compliance with ERISA	73
7.11	Security Documents	73
7.12	Properties	73
7.13	OFAC	73
7.14	Patriot Act/FCPA	74
7.15	Compliance with Statutes, etc.	74
7.16	Investment Company Act	74
7.17	Environmental Matters	74
7.18	Employment and Labor Relations	75
7.19	Intellectual Property, etc.	75
SECTION 8.	Affirmative Covenants	75
8.01	Information Covenants	75
8.02	Books, Records and Inspections; Conference Calls	78
8.03	Maintenance of Property; Insurance	79
8.04	Existence; Franchises	79
8.05	Compliance with Statutes, etc.	79
8.06	Compliance with Environmental Laws	80
8.07	ERISA	80
8.08	End of Fiscal Years	81
8.09	Ratings	81
8.10	Payment of Taxes	81
8.11	Use of Proceeds	81
8.12	Additional Security; Further Assurances; etc.	81
8.13	Change of Name	83
SECTION 9.	Negative Covenants	83
9.01	Liens	83
9.02	Consolidation, Merger, Sale of Assets, etc.	86
9.03	Dividends	89
9.04	Indebtedness	91

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9.05	Advances, Investments and Loans	96
9.06	Transactions with Affiliates	99
9.07	[Reserved]	100
9.08	[Reserved]	100
9.09	[Reserved]	100
9.10	Modifications of Certificate of Incorporation, By-Laws and Certain Other Agreements; Limitations on Voluntary Prepayments of Junior Indebtedness	100
9.11	Negative Pledge	101
9.12	Business; etc.	102
SECTION 10.	Events of Default and Remedies	102
10.01	Upon the occurrence of any of the following specified events (each, an “Event of Default”):	102
10.02	Application of Funds	105
SECTION 11.	The Administrative Agent	105
11.01	Appointment	105
11.02	Nature of Duties	106
11.03	Lack of Reliance on the Administrative Agent; Etc.	106
11.04	Certain Rights of the Agents	107
11.05	Reliance	107
11.06	Indemnification	107
11.07	The Administrative Agent in its Individual Capacity	107
11.08	Holders	108
11.09	Resignation by the Administrative Agent	108
11.10	Collateral Matters	109
11.11	Delivery of Information	110
11.12	Withholding	110
SECTION 12.	Miscellaneous	110
12.01	Payment of Expenses; Indemnification, etc.	110
12.02	Right of Set-off	112
12.03	Notices	113
12.04	Benefit of Agreement; Assignments; Participations	114
12.05	No Waiver; Remedies Cumulative	118
12.06	Payments Pro Rata	118
12.07	Computations	119
12.08	GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL	119
12.09	Counterparts	120
12.10	[Reserved]	120
12.11	Headings Descriptive	120
12.12	Amendment or Waiver; etc.	120
12.13	Survival	123
12.14	Domicile of Loans	123
12.15	Register	123
12.16	Confidentiality	124
12.17	Special Notice Regarding Pledges of Equity Interests in, and Promissory Notes Owed by, Persons Not Organized in the United States	125
12.18	Patriot Act	125

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12.19	OTHER LIENS ON COLLATERAL; TERMS OF INTERCREDITOR AGREEMENT; ETC.	125
12.20	Interest Rate Limitation	126
12.21	Post-Closing Actions	126
12.22	Revival and Reinstatement of Obligations	126
12.23	Lender Action	127
12.24	Hedging Creditors	127
12.25	Contractual Recognition of Bail-in	127

SCHEDULE 1.01	Commitments
SCHEDULE 7.12	Real Property
SCHEDULE 8.12	Mortgaged Properties
SCHEDULE 9.01	Existing Liens
SCHEDULE 9.04	Existing Indebtedness
SCHEDULE 12.03	Notice Addresses
SCHEDULE 12.21	Post-Closing Actions
EXHIBIT A-1	Form of Notice of Borrowing
EXHIBIT A-2	Form of Notice of Conversion/Continuation
EXHIBIT B	Form of Note
EXHIBIT C-1	Form of U.S. Tax Compliance Certificate
EXHIBIT C-2	Form of U.S. Tax Compliance Certificate
EXHIBIT C-3	Form of U.S. Tax Compliance Certificate
EXHIBIT C-4	Form of U.S. Tax Compliance Certificate
EXHIBIT D	Form of Officer’s Certificate
EXHIBIT E	Form of Guaranty
EXHIBIT F	Form of Security Agreement
EXHIBIT G	Form of Solvency Certificate
EXHIBIT H	Form of Compliance Certificate
EXHIBIT I	Form of Assignment and Assumption Agreement
EXHIBIT J	Form of Intercompany Note
EXHIBIT K-1	Form of Intercreditor Agreement
EXHIBIT K-2	Form of Pari Passu Intercreditor Agreement
EXHIBIT K-3	Form of Restated Intercreditor Agreement
EXHIBIT L	Auction Procedures

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TERM LOAN CREDIT AGREEMENT, dated as of June 2, 2016, among AdvancePierre Foods Holdings, Inc., a Delaware corporation (“Parent”), Pierre Holdco, Inc., a Delaware corporation (“Holdings”), AdvancePierre Foods, Inc., a Delaware corporation (the “Borrower”), the Lenders party hereto from time to time and Morgan Stanley Senior Funding, Inc. (acting through such Affiliates and/or branches as it deems appropriate, “MSSF”), as Administrative Agent and as Security Agent.  All capitalized terms used herein and defined in Section 1 are used herein as therein defined.

W I T N E S S E T H:

WHEREAS, on or prior to the date hereof, the Borrower intends to consummate the Refinancing (as defined in Section 5.07(a) hereof);

WHEREAS, in order to finance, in part, the transactions described in the first recital to this Agreement and to pay certain fees and expenses in connection with the Transaction, the Borrower has requested that the Joint Lead Arrangers arrange, and the Lenders provide, a senior secured first-lien term loan facility as set forth in this Agreement; and

WHEREAS, subject to and upon the terms and conditions set forth herein, the Joint Lead Arrangers have arranged, and the Lenders are willing to make available to the Borrower, the senior secured first-lien term loan facility provided for herein;

NOW, THEREFORE, IT IS AGREED:

SECTION 1.Definitions and Accounting Terms.

1.01Defined Terms.  As used in this Agreement, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):

“ABL Agent” shall mean Wells Fargo Capital Finance, LLC and any successor or replacement agent under the ABL Credit Agreement or any other ABL Loan Document.

“ABL Credit Agreement” shall mean the Second Amended and Restated ABL Credit Agreement, dated as October 10, 2012, by and among Holdings, the Borrower, certain of its Subsidiaries from time to time party thereto, the lenders party thereto from time to time and the ABL Agent, providing for the making of ABL Loans and the issuance of ABL Letters of Credit, as amended by Joinder No. 1 to Second Amended and Restated Security Agreement dated as of January 30, 2015, as further amended by Amendment Number One to Second Amended and Restated Credit Agreement dated as of January 29, 2015, as further amended by the Effective Date ABL Amendment, and as it may be further amended, restated, amended and restated, amended and extended, supplemented, modified, restructured, replaced or refinanced from time to time in accordance with the terms hereof and thereof and the Intercreditor Agreement.  Any reference to the ABL Credit Agreement hereunder shall be deemed a reference to any ABL Credit Agreement then in existence.

“ABL Letters of Credit” shall mean the “Letters of Credit” as defined in the ABL Credit Agreement.

“ABL Loan Documents” shall mean the “Loan Documents” as defined in the ABL Credit Agreement, including any amendments, amendment and restatements, supplements, modifications, or replacements thereto entered into in connection with any restructuring, refinancing or replacement to the extent same are permitted hereby and by the Intercreditor Agreement.

“ABL Loans” shall mean the “Advances” as defined in the ABL Credit Agreement or any equivalent term used to describe loans made thereunder.

“ABL Obligations” shall mean the “Obligations” as such term is defined in the ABL Credit Agreement.

“ABL Priority Collateral” shall have the meaning provided in the Intercreditor Agreement.

“ABL Secured Parties” shall mean the “Lender Group” and “Bank Product Providers” each as defined in the ABL Credit Agreement or any equivalent term used to describe secured parties thereunder.

“Acquired Entity or Business” shall mean either (a) all or substantially all of the assets constituting a business, division or product line of any Person not already a Subsidiary of Parent, or (b) 50.1% or more of the Equity Interests of any such Person (including by way of merger or consolidation), which Person shall, as a result of the acquisition of such Equity Interests or as a result of a merger or consolidation, become a Subsidiary of Parent that is a Restricted Subsidiary (or shall be merged with and into a Subsidiary of Parent that is a Restricted Subsidiary, with such Restricted Subsidiary being the surviving or continuing Person).

“Additional Lender” shall have the meaning provided in Section 2.14(a).

“Additional Security Documents” shall have the meaning provided in Section 8.12(a).

“Adjusted Consolidated Net Income” shall mean, for any period, Consolidated Net Income for such period plus the sum of the amount of all net non-cash charges (including, without limitation, depreciation, amortization, deferred tax expense and non-cash interest expense) and net non-cash losses which were included in arriving at Consolidated Net Income for such period, less the amount of all net non-cash gains and non-cash credits (excluding accruals in the ordinary course) which were included in arriving at Consolidated Net Income for such period.

“Adjusted Consolidated Working Capital” shall mean, at any time, Consolidated Current Assets (but excluding therefrom all cash and Cash Equivalents) less Consolidated Current Liabilities at such time.  For purposes of calculating Adjusted Consolidated Working Capital for any period in which a Permitted Acquisition occurs, the “consolidated current assets” and “consolidated current liabilities” of any Acquired Entity or Business (determined on a basis consistent with the corresponding definitions herein, with appropriate reference changes) as of the date such Permitted Acquisition is consummated shall be added to Consolidated Current Assets or Consolidated Current Liabilities, as the case may be, as of the first day of the applicable period.

“Administrative Agent” shall mean MSSF, in its capacity as Administrative Agent for the Lenders hereunder and under the other Credit Documents, and shall include any successor to the Administrative Agent appointed pursuant to Section 11.09.

“Administrative Questionnaire” shall mean an Administrative Questionnaire in such form as may be supplied from time to time by the Administrative Agent.

“Advance Shareholders” shall mean the “Shareholders” as defined in the Foods Acquisition Agreement, their successors, assigns and affiliates, including Maine Street Holdings, Inc. (formerly Advance Food Company Holdings, Inc.), any family members thereof, and any trust,

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corporation, partnership or other entity, the beneficiaries, stockholders, partners, members, managers, owners or Persons beneficially holding a controlling interest of which (or persons which are the principal beneficiaries of which) consist of any one or more of the Persons referred to in the foregoing.

“Affiliate” shall mean, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with, such Person.  A Person shall be deemed to control another Person if such Person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of such other Person, whether through the ownership of voting securities, by contract or otherwise; provided, however, that none of the Administrative Agent, any Lender (other than an Affiliated Person or Sponsor Debt Fund in such capacity) or any of their respective Affiliates shall be considered an Affiliate of Parent or any Subsidiary thereof.

“Affiliated Borrower Lender” shall have the meaning provided in Section 2.15(a).

“Affiliated Lender” shall have the meaning provided in Section 2.15(a).

“Affiliated Non-Debt Fund Lender” shall mean each Affiliated Lender that is not a Sponsor Debt Fund.

“Affiliated Person” shall have the meaning provided in Section 2.15(a).

“Agents” shall mean and include the Administrative Agent and the Security Agent.

“Aggregate Consideration” shall mean, with respect to any Permitted Acquisition, the sum (without duplication) of (a) the aggregate amount of all cash paid (or to be paid) by Parent, Holdings or any of their respective Restricted Subsidiaries in connection with such Permitted Acquisition (other than payments of fees and costs and expenses in connection therewith) and all contingent cash purchase price, earn-out, non-compete and other similar cash-pay obligations of Parent, Holdings or any of their respective Restricted Subsidiaries incurred and reasonably expected to be incurred in connection therewith (as determined in good faith by the Borrower or Parent), (b) the aggregate principal amount of all Indebtedness assumed, incurred, refinanced (by Parent or any of its Restricted Subsidiaries on behalf of the respective Acquired Entity or Business) and/or issued by Parent and its Restricted Subsidiaries in connection with such Permitted Acquisition to the extent permitted by Section 9.04 (including Permitted Acquired Debt) and (c) the Fair Market Value of all other consideration (excluding Qualified Equity Interests and any Net Cash Proceeds thereof) paid (or to be paid) by Parent, Holdings or their respective Restricted Subsidiaries in connection with such Permitted Acquisition; provided that any future payment that is subject to a contingency shall be considered Aggregate Consideration only to the extent of the reserve, if any, required under GAAP at the time of such sale to be established in respect thereof by Parent or any of its Restricted Subsidiaries.

“Agreement” shall mean this Term Loan Credit Agreement, as modified, supplemented, amended, restated (including any amendment and restatement hereof), extended or renewed from time to time.

“Applicable Margin” shall mean a percentage per annum equal to (a) until the delivery of the compliance certificate for the financial statements for the first Fiscal Quarter ending after the Effective Date pursuant to Section 8.01, in the case of Effective Date Loans maintained as (i) Base Rate Loans, 2.75%, and (ii) LIBOR Loans, 3.75%, and (b) thereafter, the following percentages per annum, based upon the Total Net Leverage Ratio as follows:

3

Pricing Level	Total Net Leverage Ratio	Base Rate Loans		LIBOR Loans
1	< 4.00:1.00	2.50	%	3.50	%
2	> 4.00:1.00	2.75	%	3.75	%

Any increase or decrease in the Applicable Margin resulting from a change in the Total Net Leverage Ratio shall become effective as of the first Business Day immediately following the date a compliance certificate is delivered pursuant to Section 8.01; provided, however, that if a compliance certificate is not delivered when due in accordance with such Section, then, Pricing Level 2 shall apply as of the first Business Day after the date on which such compliance certificate was required to have been delivered and shall continue to apply until the first Business Day immediately following the date a compliance certificate is delivered in accordance with Section 8.01, whereupon the Applicable Margin shall be adjusted based upon the calculation of the Total Net Leverage Ratio contained in such compliance certificate; provided, further, that if at any time the Borrower (or the Parent, if the Parent then receives public entity-level credit ratings and the Borrower does not receive public entity-level credit ratings) shall fail to maintain both (x) a public corporate family rating of at least “B1” from Moody’s and (y) a public corporate rating of at least “B+” from S&P (together, receiving “Floor Ratings”), then Pricing Level 2 shall automatically apply, effective as of the first day when a rating is downgraded, withdrawn or otherwise changed such that Floor Ratings are no longer maintained (and for the avoidance of doubt, if the Borrower (or the Parent, if applicable) shall receive Floor Ratings after a period wherein it failed to do so, then the Pricing Level will again be determined based on the Total Net Leverage Ratio, in accordance with the preceding clauses of this sentence).  If the rating system of Moody’s or S&P shall change, or if any such rating agency shall cease to be in the business of providing corporate entity ratings, the Borrower and the Administrative Agent shall negotiate in good faith to amend this definition to reflect such changed rating system or the unavailability of ratings from such rating agency and, pending the effectiveness of any such amendment, the Applicable Rate shall be determined by reference to the ratings of the other rating agency (or, if the circumstances referred to in this sentence shall affect both rating agencies, the ratings most recently in effect prior to such changes or cessations).

“Asset Sale” shall mean any sale, transfer or other disposition by Parent or any of its Restricted Subsidiaries to any Person other than to Parent or any of its Restricted Subsidiaries of any asset (including, without limitation, any capital stock or other securities of, or Equity Interests in, another Person) pursuant to Section 9.02(e), but excluding any sale, transfer or disposition (for such purpose, treating any series of related sales, transfers or dispositions as a single such transaction) that generates Net Sale Proceeds of less than $15,000,000.

“Assignment and Assumption Agreement” shall mean an Assignment and Assumption Agreement substantially in the form of Exhibit I.

“Auction Manager” shall have the meaning provided in Section 2.15(a).

“Auction Notice” shall mean an auction notice given by the Borrower in accordance with the Auction Procedures with respect to a Purchase Offer.

4

“Auction Procedures” shall mean the auction procedures with respect to Dutch Auction Purchase Offers set forth in Exhibit L hereto.

“Authorized Officer” shall mean, with respect to (a) delivering the Notice of Borrowing, Notices of Conversion/Continuation and similar notices, any person or persons that has or have been authorized by the board of directors (or similar governing body) of the Borrower to deliver such notices and that has or have appropriate signature cards or incumbency certificates on file with the Administrative Agent, (b) delivering financial information and officer’s certificates pursuant to this Agreement, the chief financial officer, the treasurer or the principal accounting officer of Parent or the Borrower, and (c) any other matter in connection with this Agreement or any other Credit Document, any officer (or a person or persons so designated by any two officers) of Parent or the Borrower.

“Available Amount” shall mean, at any time (the “Reference Date”), an amount equal to, without duplication:

(a)the sum of:

(i)$25,000,000; plus

(ii)an amount equal to (x) the cumulative amount of Excess Cash Flow (which amount shall not be less than zero in any fiscal year) of Parent and its Restricted Subsidiaries for the Available Amount Reference Period (it being understood for the avoidance of doubt that, solely for purposes of this definition, Excess Cash Flow for any Fiscal Year shall be deemed to be zero until the financial statements required to be delivered pursuant to Section 8.01(b) for such Fiscal Year, and the related compliance certificate required to be delivered pursuant to Section 8.01(d) for such Fiscal Year, has been received by the Administrative Agent) minus (y) the portion of such Excess Cash Flow that has been (or is required to be) applied to the prepayment of Loans in accordance with Section 4.02(f); plus

(iii)Eligible Equity Proceeds; plus

(iv)the Net Cash Proceeds received by Parent from the sale or issuance of any Indebtedness or Disqualified Equity Interest, in each case, of Parent or any Restricted Subsidiary of Parent sold or issued after the Effective Date (other than Indebtedness or such Disqualified Equity Interests issued to Parent or any of its Restricted Subsidiaries or any Contribution Indebtedness), which has been converted into or exchanged for Equity Interests of the Borrower, Holdings, Parent or any other direct or indirect parent of the Borrower that do not constitute Disqualified Equity Interests; plus

(v)the Net Cash Proceeds received by Parent or any of its Restricted Subsidiaries in connection with the sale or other disposition to a Person (other than Holdings or any of its Restricted Subsidiaries) of any Investment made pursuant to Section 9.05(r) (in an amount not to exceed the original amount of such Investments); plus

(vi)the Net Cash Proceeds (including, for purposes of this clause (vi) proceeds received in the form of Cash Equivalents) received by Parent or any of its Restricted Subsidiaries in connection with the returns, interest, profits, distributions and similar amounts, in each case received in respect of any Investment made pursuant to Section 9.05(r); plus

(vii)in the event any Unrestricted Subsidiary has been re-designated as a Restricted Subsidiary or has been merged, consolidated or amalgamated with or into, or transfers or conveys its assets to, or is liquidated into, Parent or any of its Restricted Subsidiaries, the Fair Market Value (as determined by the Borrower in good faith) of the Investments of Parent or any of its Restricted

5

Subsidiaries in such Unrestricted Subsidiary at the time of such re-designation, combination or transfer (or of the assets transferred or conveyed, as applicable), in each case to the extent such Investments were originally made using the Available Amount pursuant to Section 9.05(r); plus

(viii)the amount of any Declined Proceeds; minus

(b)an amount equal to the sum of (i) Dividends made pursuant to Section 9.03(i), plus (ii) repayments of Indebtedness made pursuant to Section 9.10(a)(x)(2), plus (iii) repayments of Indebtedness made pursuant to Section 9.10(a)(x)(3) with the Net Cash Proceeds of the issuance of Qualified Equity Interests (solely to the extent such amounts are included in clause (a)(iii) above), plus (iv) Investments made pursuant to 9.05(r), in each case, made after the Effective Date and prior to such time.

“Available Amount Reference Period” shall mean, with respect to any Reference Date, the period commencing on the January 1, 2017 and ending on the last day of the most recent fiscal year for which financial statements required to be delivered pursuant to Section 8.01(b), and the related compliance certificate required to be delivered pursuant to Section 8.01(d), have been received by the Administrative Agent (commencing with the fiscal year ending on December 30, 2017).

“Bail-In Action” shall mean the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.

“Bail-In Legislation” shall mean with respect to any EEA Member Country implementing Article 55 of the Directive 2014/59/EU of the European Parliament and of the council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule from time to time.

“Bankruptcy Code” shall have the meaning provided in Section 10.01(e).

“Base Rate” shall mean, at any time, the highest of (i) the Prime Rate at such time, (ii) 1/2 of 1% per annum in excess of the overnight Federal Funds Effective Rate at such time and (iii) the LIBO Rate for a LIBOR Loan denominated in dollars with a one-month Interest Period commencing on such day plus 1.00%. For purposes of this definition, the LIBO Rate shall be determined using the LIBO Rate as otherwise determined by the Administrative Agent in accordance with the definition of LIBO Rate, except that (x) if a given day is a Business Day, such determination shall be made on such day (rather than two Business Days prior to the commencement of an Interest Period) or (y) if a given day is not a Business Day, the LIBO Rate for such day shall be the rate determined by the Administrative Agent pursuant to preceding clause (x) for the most recent Business Day preceding such day.  Any change in the Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or such LIBO Rate shall be effective as of the opening of business on the day of such change in the Prime Rate, the Federal Funds Effective Rate or such LIBO Rate, respectively.

“Base Rate Loan” shall mean each Loan designated or deemed designated as such by the Borrower at the time of the incurrence thereof or conversion thereto.

“Board” shall mean the Board of Governors of the Federal Reserve System of the United States.

“Borrower” shall have the meaning provided in the first paragraph of this Agreement.

“Borrower Materials” shall have the meaning provided in Section 12.03(c).

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“Borrowing” shall mean the borrowing of one Type of Loan from all applicable Lenders on a given date (or resulting from a conversion or conversions on such date) having, in the case of LIBOR Loans the same Interest Period; provided that Base Rate Loans incurred pursuant to Section 2.10(b) shall be considered part of the related Borrowing of LIBOR Loans.

“Business Day” shall mean (a) any day which is neither a Saturday or Sunday nor a legal holiday on which banks are authorized or required to be closed in New York, New York; and (b) relative to the making, continuing, prepaying or repaying of any LIBOR Loans, any day which is a Business Day described in clause (a) above and which is also a day on which dealings in Dollars are carried on in the London interbank market.

“Calculation Period” shall mean, as of any date of determination, the period of four consecutive Fiscal Quarters most recently ended for which financial statements have been delivered to the Administrative Agent pursuant to Section 8.01(a) or (b), as applicable; provided that, with respect to any calculation in respect of an event that occurs prior to the date on which financial statements have been (or are required to be) delivered pursuant to Section 8.01(a) for the Fiscal Quarter ended on July 2, 2016, the “Calculation Period” shall be the period of four consecutive Fiscal Quarters ended April 2, 2016.

“Capital Expenditures” shall mean, with respect to any Person, for any period, all expenditures by such Person during such period which should be capitalized in accordance with GAAP and, without duplication, the amount of all Capitalized Lease Obligations incurred by such Person in such period.

“Capitalized Lease Obligations” shall mean, with respect to any Person, all rental obligations of such Person which, under GAAP as in effect on the Effective Date, are or will be required to be capitalized on the books of such Person, in each case taken at the amount thereof accounted for as indebtedness in accordance with such principles.

“Cash Equivalents” shall mean (a) marketable direct obligations issued by, or unconditionally guaranteed by, the United States or issued by any agency thereof and backed by the full faith and credit of the United States, in each case maturing within 1 year from the date of acquisition thereof, (b) marketable direct obligations issued or fully guaranteed by any state of the United States or any political subdivision of any such state or any public instrumentality thereof maturing within 1 year from the date of acquisition thereof and, at the time of acquisition, having one of the two highest ratings obtainable from either S&P or Moody’s, (c) commercial paper maturing no more than 270 days from the date of creation thereof and, at the time of acquisition, having a rating of at least A-2 from S&P or at least P-2 from Moody’s, (d) certificates of deposit, time deposits, overnight bank deposits or bankers’ acceptances maturing within 1 year from the date of acquisition thereof issued by any bank organized under the laws of the United States or any state thereof or the District of Columbia or any United States branch of a foreign bank having at the date of acquisition thereof combined capital and surplus of not less than $250,000,000, (e) Deposit Accounts maintained with (i) any bank that satisfies the criteria described in clause (d) above, or (ii) any other bank organized under the laws of the United States or any state thereof so long as the amount maintained with any such other bank is insured by the Federal Deposit Insurance Corporation, (f) repurchase obligations of any commercial bank satisfying the requirements of clause (d) of this definition or any recognized securities dealer having combined capital and surplus of not less than $250,000,000, having a term of not more than seven days, with respect to securities satisfying the criteria in clauses (a) or (d) above, (g) debt securities with maturities of six months or less from the date of acquisition backed by standby letters of credit issued by any commercial bank satisfying the criteria described in clause (d) above at the time of acquisition, and (h) Investments in money market funds substantially all of whose assets are invested in the types of assets described in clauses (a) through (g) above at the time of acquisition.

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“Cash Management Obligations” shall mean any and all obligations, whether absolute or contingent and however and whenever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor), in connection with Cash Management Services.

“Cash Management Services” shall mean any cash management or related services including treasury, depository, return items, overdraft, controlled disbursement, merchant store value cards, e-payable services, electronic funds transfer, interstate depository network, automatic clearing house transfer (including the Automated Clearing House processing of electronic funds transfers through the direct Federal Reserve Fedline system) and other cash management arrangements.

“CERCLA” shall mean the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as the same has been amended and may hereafter be amended from time to time, 42 U.S.C. § 9601 et seq.

“Change of Control” shall mean that (a) (i) at any time prior to an IPO, the Permitted Holders fail to beneficially own (as defined in Rule 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, in the aggregate, more than 50% of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of Parent and (ii) at any time on or after the consummation of an IPO, any person or “group” (within the meaning of Rule 13d-3 and 13d-5 under the Exchange Act) (other than any direct or indirect holding company of Parent or one or more of the Permitted Holders) owns and controls, directly or indirectly, Equity Interests of Parent representing more than 40.0% of the aggregate voting power of the issued and outstanding Equity Interests of Parent and the percentage of aggregate voting power so held is greater than the percentage of the aggregate voting power represented by the issued and outstanding Equity Interests of Parent beneficially owned, directly or indirectly, in the aggregate by the Permitted Holders, (b) Parent ceases to own and control, directly or indirectly, 100% of the Equity Interests of the Borrower, or (c) a “change of control” or similar event shall occur as provided in the ABL Credit Agreement (or any Permitted Refinancing Indebtedness in respect thereof), or any Junior Financing Documentation or other definitive documentation governing any other Indebtedness for borrowed money with an outstanding principal amount equal to or greater than $50,000,000.

“Claims” shall have the meaning provided in the definition of “Environmental Claims”.

“Class” (a) when used with respect to Lenders, refers to whether such Lenders are Term Lenders, Additional Lenders or Extending Term Lenders, (b) when used with respect to Commitments, refers to whether such Commitments are Initial Loan Commitments, Incremental Loan Commitments, Other Loan Commitments or Extended Term Commitments and (c) when used with respect to Loans or a Borrowing, refers to whether such Loans or Borrowings are Loans or Borrowings thereof, as applicable, under this Agreement as originally in effect or made, extended or refinanced pursuant to Section 2.14, 2.16 or 2.17.

“Code” shall mean the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings issued thereunder.

“Collateral” shall mean all property (whether real or personal) with respect to which any security interests have been granted (or are purported to be granted) pursuant to any Security Document, including, without limitation, all Security Agreement Collateral and all Mortgaged Properties.

“Commitment” shall mean, for each Lender, the Initial Loan Commitment of such Lender, the Incremental Loan Commitment of such Lender, the Extended Term Commitment of such Lender, or the Other Loan Commitment of such Lender.

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“Commodity Exchange Act” shall mean the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.

“Communications” shall have the meaning provided in Section 12.03(a).

“Company” shall mean any corporation, limited liability company, partnership or other business entity (or the adjectival form thereof, where appropriate) or the equivalent of the foregoing in any foreign jurisdiction.

“Consolidated Current Assets” shall mean, at any time, the consolidated current assets of Parent and its Restricted Subsidiaries at such time.

“Consolidated Current Liabilities” shall mean, at any time, the consolidated current liabilities of Parent and its Restricted Subsidiaries at such time, but excluding the current portion of any Indebtedness under this Agreement, the ABL Credit Agreement and the current portion of any other long-term Indebtedness or obligation which would otherwise be included therein (including Capitalized Lease Obligations), current interest and current taxes.

“Consolidated EBITDA” shall mean, for any period, Consolidated Net Income for such period (without giving effect to (a) any extraordinary gains, (b) any non-cash income (excluding accrual of income in the ordinary course), and (c) any gains or losses from sales of assets (other than inventory sold in the ordinary course of business)) adjusted by (x) adding thereto (in each case to the extent deducted in determining Consolidated Net Income for such period), without duplication, the amount of (i) total interest expense (inclusive of amortization of deferred financing fees and other original issue discount and banking fees, charges and commissions (e.g., letter of credit fees, commitment fees, underwriting fees, arrangement fees, fees or premiums or other amounts paid in connection with the issuance or repayment or termination of Indebtedness and amounts paid in respect of Interest Rate Protection Agreements or Other Hedging Agreements)) of Parent and its Restricted Subsidiaries determined on a consolidated basis for such period, (ii) provision for taxes based on income and foreign withholding taxes for Parent and its Restricted Subsidiaries determined on a consolidated basis for such period, (iii) all depreciation and amortization expense of Parent and its Restricted Subsidiaries determined on a consolidated basis for such period, (iv) all other non-cash losses or non-cash charges or expenses of Parent and its Restricted Subsidiaries determined on a consolidated basis for such period (including, without limitation, the write up of inventory in excess of manufacturing cost in accordance with SFAS 141R, other purchase accounting adjustments, other write-offs or write-downs, non-cash accruals taken in respect of product delivered to and processed by Parent and its Restricted Subsidiaries pursuant to its contracts with the U.S.D.A. and those incurred in connection with the granting of, or accretion on, options, warrants and any other Equity Interests, but excluding any non-cash charge that results in an accrual of a reserve for cash charges in any future period which the Borrower elects not to add back in the current period), (v) all management fees and expenses paid to the Sponsor, the Advance Shareholders and their Affiliates pursuant to Sections 9.06(g) and (h) for or during such period, (vi) the amount of all fees and expenses incurred in connection with the Transaction during the applicable period, (vii) the amount of all fees and expenses incurred after the Effective Date in connection with any amendment to this Agreement, the ABL Credit Agreement, or any other Indebtedness, in each case, whether or not successful, (viii) restructuring, integration and business optimization costs and expenses incurred during such period, including any severance costs, costs associated with office or plant openings or closings and consolidation, systems integration and optimization, relocation or integration costs (including expenses related to training and product test runs), fees of restructuring or business optimization consultants and other business optimization or restructuring charges and expenses, (ix) transaction costs, fees and expenses (whether or not any transaction is actually consummated) incurred in connection with any Permitted Acquisition, incurrence of Indebtedness, issuance of Equity Interests (including with respect to

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any direct or indirect parent of Borrower and any IPO) or any asset sale during such period (whether or not successful), (x) extraordinary, unusual or non-recurring charges or expenses to the extent that they reduced Consolidated Net Income in such period, including, without limitation, related costs or expenses and payments of legal settlements, fines, judgments and orders, (xi) amounts paid in respect of commodities forward purchase contracts to which hedge accounting treatment does not apply, (xii) (a) Permitted Acquisition Additional Cost Savings and Permitted Disposition Additional Cost Savings and (b) expected pro forma cost savings, operating expense reductions and synergies related to restructurings, cost savings initiatives and other similar initiatives which the Borrower has taken steps to initiate during the applicable period (net of the amount of benefits actually realized during the relevant period to the extent such are already included in the determination of Consolidated Net Income for the applicable period), reasonably identifiable and factually supportable and projected by the Borrower in good faith to result from actions with respect to which substantial steps have been, will be, or are expected to be, taken (in the good faith determination of the Borrower) within 12 months after such period, in an aggregate amount for this clause (b) not to exceed 20% of Consolidated EBITDA in any Calculation Period of Parent and its Restricted Subsidiaries (calculated after adjustment pursuant to this clause (xii)); provided that any such adjustments are (x) estimated on a good faith basis by the Borrower and (y) described (in reasonable detail) in an officer’s certificate delivered by an Authorized Officer of the Borrower to the Administrative Agent, (xiii) adjustments and add-backs specifically identified in the Model, (xiv) proceeds of business interruption insurance to the extent not included in determining Consolidated Net Income for such period, (xv) charges incurred in establishing compliance with public company reporting requirements (including the Sarbanes Oxley Act), (xvi) any costs or expenses incurred pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement or any stock subscription or shareholder agreement, to the extent that such costs or expenses are funded with cash proceeds contributed to the capital of Borrower or a Guarantor or the net proceeds of an issuance of Equity Issuances of Borrower or any Guarantor, solely to the extent that such net cash proceeds are excluded from the calculation of the Available Amount (including any payment of dividend equivalent rights to option holders), (xvii) any deductions (less any additions) attributable to non-controlling interests except, in each case, to the extent of cash paid, (xviii) any net loss from disposed or discontinued operations and (xix) unrealized net losses on the fair market value of any non-speculative hedge agreements and the net costs of implementation of any non-speculative hedge agreements and losses, charges and expenses attributable to the early extinguishment or conversion of indebtedness, hedge agreements or other derivative instruments (including deferred financing expenses written off and premiums paid), and (y) subtracting therefrom (to the extent not otherwise deducted in determining Consolidated Net Income for such period) (i) the amount of all cash payments or cash charges made (or incurred) by Parent or any of its Restricted Subsidiaries during such period on account of any non-cash losses or non-cash charges added back to Consolidated EBITDA pursuant to preceding sub-clause (x)(iv) in a previous period and (ii) amounts added back to Consolidated EBITDA in a prior period under sub-clause (x)(xi) above as and when such amounts would have been expensed had the applicable forward purchase contract received hedge accounting treatment.  For the avoidance of doubt, it is understood and agreed that, to the extent any amounts are excluded from Consolidated Net Income by virtue of the proviso to the definition thereof contained herein, any add backs to Consolidated Net Income in determining Consolidated EBITDA as provided above shall be limited (or denied) in a fashion consistent with the proviso to the definition of Consolidated Net Income contained herein.

“Consolidated First Lien Indebtedness” shall mean, as at any date of determination, the aggregate principal amount of Consolidated Indebtedness outstanding on such date constituting debt for borrowed money that is secured by a first priority Lien on any asset or property of Parent or its Restricted Subsidiaries (including, for purposes of calculating the First Lien Net Leverage Ratio, any Indebtedness incurred hereunder (including pursuant to Section 2.14) and any Indebtedness incurred under the ABL Credit Agreement, any Incremental Equivalent Debt or Credit Agreement Refinancing Indebtedness, in

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each case that is secured on a pari passu basis with the Loans and any Permitted Refinancing thereof that is secured on a pari passu basis with the Loans incurred on or prior to such date and then outstanding).

“Consolidated Indebtedness” shall mean, at any time, the sum of (without duplication) (i) all Indebtedness of Parent and its Restricted Subsidiaries (on a consolidated basis) constituting debt for borrowed money and (ii) all Contingent Obligations of Parent and its Restricted Subsidiaries in respect of Indebtedness of any third Person of the type referred to in preceding clause (i).

“Consolidated Interest Expense” shall mean, for any Calculation Period, with respect to Parent and its Restricted Subsidiaries on a consolidated basis, total cash interest expense (including that portion attributable to capital leases in accordance with GAAP and capitalized interest) net of cash interest income, including all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing and net costs under hedging agreements, but excluding, for the avoidance of doubt, (i) amortization of deferred financing costs, debt discounts or premiums, debt issuance costs, commissions, fees and expenses, pay-in-kind interest expense and any other amounts of non-cash interest (including as a result of the effects of acquisition method accounting or pushdown accounting), (ii) non-cash interest expense attributable to the movement of the mark-to-market valuation of obligations under hedging agreements or other derivative instruments and (iii) any one-time cash costs associated with breakage in respect of hedging agreements for interest rates.

“Consolidated Net Income” shall mean, for any period, the net income (or loss) of Parent and its Restricted Subsidiaries determined on a consolidated basis for such period (taken as a single accounting period) in accordance with GAAP, provided that the following items shall be excluded in computing Consolidated Net Income (without duplication): (i) the net income (or loss) of any Person in which a Person or Persons other than Parent and its Subsidiaries has an Equity Interest or Equity Interests to the extent of such Equity Interests held by Persons other than Parent and its Wholly-Owned Subsidiaries in such Person, (ii) except for determinations expressly required to be made on a Pro Forma Basis, the net income (or loss) of any Person accrued prior to the date it becomes a Restricted Subsidiary or all or substantially all of the property or assets of such Person are acquired by a Restricted Subsidiary and (iii) the net income of any Restricted Subsidiary which is not a Guarantor to the extent that the declaration or payment of cash dividends or similar cash distributions by such Restricted Subsidiary of such net income is not at the time permitted by the operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to such Restricted Subsidiary.

“Consolidated Total Secured Indebtedness” shall mean, as at any date of determination, the aggregate principal amount of Consolidated Indebtedness outstanding on such date constituting debt for borrowed money that is secured by a Lien on any asset or property of Parent or its Restricted Subsidiaries.

“Contingent Obligation” shall mean, as to any Person, any obligation of such Person as a result of such Person being a general partner of any other Person, unless the underlying obligation is expressly made non-recourse as to such general partner, and any obligation of such Person guaranteeing or intended to guarantee any Indebtedness, leases, dividends or other obligations (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, any obligation of such Person, whether or not contingent, (a) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (b) to advance or supply funds (i) for the purchase or payment of any such primary obligation or (ii) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (c) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such

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primary obligation or (d) otherwise to assure or hold harmless the holder of such primary obligation against loss in respect thereof; provided, however, that the term Contingent Obligation shall not include endorsements of instruments for deposit or collection in the ordinary course of business.  The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation in respect of which such Contingent Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith.

“Contractual Obligation” shall have the meaning provided in Section 9.11.

“Contribution Indebtedness” shall mean Indebtedness of Parent or any Restricted Subsidiary in an aggregate principal amount not greater than the aggregate amount of cash contributions (other than the proceeds from the issuance of Disqualified Equity Interests or contributions by Parent or any Restricted Subsidiary) made to the capital of Parent or such Restricted Subsidiary after the Effective Date (whether through the issuance or sale of Equity Interests or otherwise); provided that such Contribution Indebtedness is (a) incurred within 180 days after the making of the related cash contribution and (b) is so designated as Contribution Indebtedness pursuant to a certificate of an Authorized Officer of the Borrower delivered to the Administrative Agent on the date of incurrence thereof.

“Control Agreement” shall mean a control agreement, in form and substance reasonably satisfactory to the Security Agent, executed and delivered by the Borrower or a Guarantor, the Security Agent and the applicable securities intermediary (with respect to a Securities Account) or bank (with respect to a Deposit Account), subject to the terms of the Intercreditor Agreement.

“Copyright Security Agreement” has the meaning specified in the Security Agreement.

“Credit Agreement Refinancing Indebtedness” shall mean (a) Permitted Pari Passu Refinancing Debt, (b) Permitted Junior Priority Refinancing Debt, (c) Permitted Unsecured Refinancing Debt or (d) other Indebtedness incurred pursuant to a Refinancing Amendment (including, without limitation, Other Loans), in each case, issued, incurred or otherwise obtained (including by means of the extension or renewal of existing Indebtedness) in exchange for, or to extend, renew, replace or refinance, in whole or part, existing Loans, or any then-existing Credit Agreement Refinancing Indebtedness (“Refinanced Debt”); provided that (i) the aggregate principal amount of such Credit Agreement Refinancing Indebtedness shall not exceed the aggregate principal amount of such Refinanced Debt plus the amount of any unpaid accrued interest and premium thereon and any make-whole payments applicable thereto in respect of the Refinanced Debt plus other amounts paid and related fees and expenses in connection with such Credit Agreement Refinancing Indebtedness, (ii) any Credit Agreement Refinancing Indebtedness consisting of notes is not subject to any amortization prior to the Latest Maturity Date then in effect and is not subject to mandatory redemption or prepayment (other than customary prepayments from proceeds of asset sales and in connection with change of control provisions) prior to the Latest Maturity Date then in effect, (iii) such Credit Agreement Refinancing Indebtedness has a final maturity date equal to or later than the final maturity date of such Refinanced Debt and the Weighted Average Life to Maturity of such Credit Agreement Refinancing Indebtedness shall not be shorter than the Weighted Average Life to Maturity of such Refinanced Debt at the time of such refinancing (except to the extent of nominal amortization for periods where amortization has been eliminated as a result of prepayment of the applicable Loans), (iv) Credit Agreement Refinancing Indebtedness constituting Indebtedness incurred pursuant to a Refinancing Amendment (including, without limitation, Other Loans) shall be pari passu or junior (provided, that any Permitted Junior Priority Refinancing Debt shall be pari passu with all other Permitted Junior Priority Refinancing Debt and other Junior Lien Debt) in right of payment and/or with respect to the Collateral with the remaining portion of

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the Loans and the Obligations (provided that, if pari passu or junior as to payment or Collateral, such replacement Indebtedness shall be subject to the Intercreditor Agreement and, if applicable, an Other Intercreditor Agreement), or be unsecured, (v) if any such Credit Agreement Refinancing Indebtedness is secured, it shall not be secured by any assets other than the Collateral, (vi) a Credit Party shall be the issuer or borrower of such Credit Agreement Refinancing Indebtedness, and if any such Credit Agreement Refinancing Indebtedness is guaranteed, it shall not be guaranteed by any Person other than the Guarantors and the Borrower, (vii) any Credit Agreement Refinancing Indebtedness may participate on a pro rata basis or less than pro rata basis (but not greater than pro rata) in any voluntary or mandatory repayments or prepayments in respect of the Loans, in each case as agreed by the Borrower and the Lenders providing the relevant Credit Agreement Refinancing Indebtedness, and (viii) all other terms applicable to such Credit Agreement Refinancing Indebtedness (excluding pricing, premiums and optional prepayment or redemption terms) are customary market terms for loans or securities of such type and, in any event, when taken as a whole, are not materially more favorable to the lenders or investors providing such Credit Agreement Refinancing Indebtedness than those applicable to such Refinanced Debt, except with respect to any terms (including covenants) and conditions contained in such Credit Agreement Refinancing Indebtedness that are applicable only after the then Latest Maturity Date in effect immediately prior to such refinancing (it being understood that this clause (viii) shall not restrict the addition of any financial maintenance covenant to such Credit Agreement Refinancing Indebtedness to the extent such financial maintenance covenant shall be added to or benefit the Loans remaining outstanding after the issuance or incurrence of such Credit Agreement Refinancing Indebtedness); provided that a certificate of an officer of the Borrower delivered to the Administrative Agent at least five Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirements of this clause (viii) shall be conclusive evidence that such terms and conditions satisfy such requirement unless the Administrative Agent notifies the Borrower within five Business Days of receipt of such certificate that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees).

“Credit Documents” shall mean this Agreement, the Guaranty, each Security Document, the Intercreditor Agreement, the Intercompany Subordination Agreement and, after the execution and delivery thereof pursuant to the terms of this Agreement, each Other Intercreditor Agreement, each Note and each Mortgage.

“Credit Party” shall mean Parent, Holdings, the Borrower and each Subsidiary Guarantor.

“DBSI” shall mean Deutsche Bank Securities Inc.

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

“Declined Proceeds” shall have the meaning provided in Section 4.02(j).

“Default” shall mean any event, act or condition which solely with notice or lapse of time, or both, would constitute an Event of Default.

“Defaulting Lender” shall mean any Lender with respect to which a Lender Default is in effect.

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“Deposit Account” shall mean any deposit account (as the term is defined in the UCC).

“Disqualified Equity Interests” shall mean any Equity Interest that, by its terms (or by the terms of any security or other Equity Interests into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition (a) matures or is mandatorily redeemable (other than solely for Qualified Equity Interests and cash in lieu of fractional shares of such Equity Interests), pursuant to a sinking fund obligation or otherwise (except as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior repayment in full of the Loans and all other Obligations that are accrued and payable and the termination of the Commitments), (b) is redeemable at the option of the holder thereof (other than solely for Qualified Equity Interests and cash in lieu of fractional shares of such Equity Interests), in whole or in part, (c) provides for the scheduled payments of dividends in cash, or (d) is or becomes convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Equity Interests, in each case, prior to the date that is ninety-one (91) days after the Latest Maturity Date at the time of issuance; provided that if such Equity Interests are issued pursuant to a plan for the benefit of employees of Parent, Holdings, the Borrower or its Restricted Subsidiaries or by any such plan to such employees, such Equity Interests shall not constitute Disqualified Equity Interests solely because they may be required to be repurchased by Parent, Holdings, the Borrower or its Restricted Subsidiaries in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, death, or disability.

“Disqualified Lender” shall mean, on any date, (a) any Person designated by the Borrower as a “Disqualified Lender” and identified by name in a written notice delivered to the Administrative Agent on or prior to the date hereof and (b) any other Person that is a competitor of Parent or any of its Subsidiaries, which Person has been designated by the Borrower as a “Disqualified Lender” and identified by name in writing to the Administrative Agent from time to time and, in each case, any of their Affiliates (other than any such Affiliate that is affiliated with a financial investor in such Person and that is not itself an operating company or otherwise an Affiliate of an operating company so long as such Affiliate is a bona fide Fund) that are either (i) identified by name in writing by the Borrower to the Administrative Agent from time to time or (ii) clearly identifiable on the basis of such Affiliate’s name.

“Dividend” shall mean, with respect to any Person, any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interests of such Person, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, defeasance, acquisition, cancellation or termination of any Equity Interests of such Person.

“Documentation Agent” shall mean Deutsche Bank Securities Inc.

“Dollars” and the sign “$” shall each mean freely transferable lawful money of the United States.

“Domestic Subsidiary” of any Person shall mean any Subsidiary of such Person incorporated or organized in the United States or any State or territory thereof or the District of Columbia (other than any Pass-Through Foreign Holding Company).

“Dutch Auction Purchase Offer” shall have the meaning provided in Section 2.15(a).

“EEA Financial Institution” shall mean (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution

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described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.

“EEA Member Country” shall mean any member state of the European Union, Iceland, Liechtenstein and Norway.

“EEA Resolution Authority” shall mean any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

“Effective Date” shall mean June 2, 2016.

“Effective Date ABL Amendment” shall mean Amendment Number Three to Second Amended and Restated Credit Agreement, dated as of the Effective Date, by and among the Borrower, the lenders party thereto and the ABL Agent.

“Effective Date Loans” shall have the meaning provided in Section 2.01.

“Effective Yield” shall mean, as to any Indebtedness, the effective yield applicable thereto calculated by the Administrative Agent in consultation with the Borrower in a manner consistent with generally accepted financial practices, which shall include (a) interest rate margin and interest rate floors (subject to the proviso set forth below), (b) any amendment to the relevant interest rate margins and interest rate floors that became effective after the Effective Date but prior to the applicable date of determination and (c) original issue discount and upfront or similar fees paid by the Borrower (based on, to the extent applicable, an assumed four-year average life to maturity) but shall exclude any arrangement, commitment, ticking, structuring, underwriting and similar fees that are not generally shared with the relevant Lenders and, if applicable, consent fees for an amendment paid generally to consenting Lenders; provided, however, that if any such Indebtedness includes any interest rate floor applicable to LIBOR Loans or Base Rate Loans that is greater than that applicable to the applicable then-existing Loans and such floor is applicable to the applicable then-existing Loans on the date of determination, such excess amount shall be equated to interest rate margin for determining the increase.

“Eligible Equity Proceeds” shall mean the Net Cash Proceeds received by the Borrower, Holdings, Parent or any other direct or indirect parent of the Borrower from the sale or issuance of any Qualified Equity Interests or from any capital contribution in respect of any Qualified Equity Interests to the extent such Net Cash Proceeds or capital contributions are actually received by the Borrower as cash common equity, but excluding any Net Cash Proceeds from an IPO.

“Eligible Transferee” shall mean and include (w) a commercial bank, an insurance company, a finance company, a financial institution, any fund that invests in loans or any other “accredited investor” (as defined in Regulation D of the Securities Act), (x) Affiliated Persons to the extent expressly provided for under Section 2.15 and (y) Sponsor Debt Funds (which shall be permitted if in compliance with Section 2.15 or 12.04(e), as applicable, regardless of whether such Person otherwise satisfies the criteria of Eligible Transferee), and shall exclude (i) any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute a Defaulting Lender and (ii) any Disqualified Lender.

“Environmental Claims” shall mean any and all administrative, regulatory or judicial actions, suits, demands, demand letters, directives, claims, liens, notices of noncompliance or violation, investigations or proceedings arising under any Environmental Law or any permit issued, or any approval

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given, under any such Environmental Law (hereafter, “Claims”), including, without limitation, (a) any and all Claims by Governmental Authorities for enforcement, cleanup, removal, response, remedial or other actions or damages pursuant to any applicable Environmental Law, and (b) any and all Claims by any third party seeking damages, contribution, indemnification, cost recovery, compensation or injunctive relief in connection with alleged injury or threat of injury to health, safety or the environment due to the presence of Hazardous Materials.

“Environmental Law” shall mean any applicable Federal, state, foreign or local statute, law, regulation and ordinance, and any legally binding code, guideline, policy and rule of common law now or hereafter in effect and in each case as amended, and any judicial or administrative interpretation thereof, including any judicial or administrative order, consent decree or judgment, relating to the environment, employee health and safety as such matters relate to Hazardous Materials or Hazardous Materials, including, without limitation, CERCLA; the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq.; the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq.; the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq.; the Clean Air Act, 42 U.S.C. § 7401 et seq.; the Safe Drinking Water Act, 42 U.S.C. § 3803 et seq.; the Oil Pollution Act of 1990, 33 U.S.C. § 2701 et seq.; the Emergency Planning and the Community Right-to-Know Act of 1986, 42 U.S.C. § 11001 et seq.; the Hazardous Material Transportation Act, 49 U.S.C. § 1801 et seq.; the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq. (as it relates to Hazardous Materials); and any state and local or foreign counterparts or equivalents, in each case as amended from time to time.

“Equity Interests” of any Person shall mean any and all shares, interests, rights to purchase, warrants, options, participation or other equivalents of or interest in (however designated) equity of such Person, including any common stock, preferred stock, any limited or general partnership interest and any limited liability company membership interest.

“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder.

“ERISA Affiliate” shall mean each person (as defined in Section 3(9) of ERISA) which together with Parent or a Subsidiary of Parent would be deemed to be a “single employer” within the meaning of Section 414(b), (c), (m) or (o) of the Code.

“ERISA Event” shall mean (a)(i) the occurrence of a Reportable Event; or (ii) the requirements of Section 4043(b) of ERISA apply with respect to a contributing sponsor, as defined in Section 4001(a)(13) of ERISA, of a Plan, and an event described in paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably expected to occur with respect to such Plan within the following 30 days; (b) the application for a minimum funding waiver with respect to a Plan; (c) the provision by the administrator of any Plan of a notice of intent to terminate such Plan, pursuant to Section 4041(a)(2) of ERISA (including any such notice with respect to a plan amendment referred to in Section 4041(e) of ERISA); (d) the cessation of operations at a facility of Parent, Holdings, Borrower, a Restricted Subsidiary or any ERISA Affiliate in the circumstances described in Section 4062(e) of ERISA; (e) conditions for imposition of a lien under Section 303(k) of ERISA shall have been met with respect to any Plan; (f) a determination that any Plan is in “at risk” status (within the meaning of Section 303 of ERISA); or (g) the institution by the PBGC of proceedings to terminate a Plan pursuant to Section 4042 of ERISA, or the occurrence of any event or condition described in Section 4042 of ERISA that constitutes grounds for the termination of, or the appointment of a trustee to administer, such Plan.

“EU Bail-In Legislation Schedule” shall mean the EU Bail-In Legislation Schedule published by the Loan Market Association (or any other successor person), as in effect from time to time.

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“Event of Default” shall have the meaning provided in Section 10.01.

“Excess Cash Flow” shall mean, for any Excess Cash Payment Period, the remainder of (a) the sum of, without duplication, (i) Adjusted Consolidated Net Income for such period, (ii) the decrease, if any, in Adjusted Consolidated Working Capital from the first day to the last day of such period, (iii) the aggregate amount of cash payments received during such period in respect of non-cash income or gains included in prior periods, and (iv) the aggregate amount deducted in the calculation of Excess Cash Flow pursuant to clause (b)(i)(B) below in the immediately preceding Excess Cash Payment Period not used to make Capital Expenditures by the end of the following Excess Cash Payment Period, minus (b) the sum of, without duplication, (i) (A) the aggregate amount of all Capital Expenditures made by Parent and its Restricted Subsidiaries during such period and (B) amounts designated by the Borrower as being committed during such period to be used to make Capital Expenditures no later than the end of the immediately succeeding Excess Cash Payment Period which have been actually made or consummated or for which a binding agreement exists as of the time of determination, in the case of both clause (A) and (B), other than Capital Expenditures to the extent (x) financed with the proceeds of asset sales, sales or issuances of Equity Interests, capital contributions, insurance (other than business interruption insurance to the extent included in Consolidated Net Income) or long-term Indebtedness (other than revolving Indebtedness), (y) made as tenant in leasehold improvements to the extent reimbursed by landlords or (z) related to sale-leaseback transactions, (ii) the aggregate amount of permanent principal payments, redemptions or repurchases of Indebtedness of Parent and its Restricted Subsidiaries (other than voluntary prepayments of the Loans and other term Indebtedness secured on a pari passu basis with the Loans or constituting a Permitted Refinancing of the Loans, and, to the extent accompanied by a permanent reduction of the Commitments under the ABL Credit Agreement, the ABL Loans) and the permanent repayment of the principal component of Capitalized Lease Obligations of Parent and its Restricted Subsidiaries (and the aggregate amount of any premium or penalty actually paid in cash that is required to be paid in connection with either of the foregoing) during such period (other than (1) repayments made pursuant to the Refinancing, (2) repayments made with the proceeds of asset sales, sales or issuances of Equity Interests, capital contributions, insurance (other than business interruption insurance to the extent included in Consolidated Net Income) or long-term Indebtedness (other than revolving Indebtedness) and (3) payments of Loans or ABL Loans, provided that (x) repayments of Loans shall be deducted in determining Excess Cash Flow to the extent such payments were required as a result of a Scheduled Initial Repayment pursuant to Section 4.02(a) or a mandatory prepayment of Loans pursuant to Section 4.02(d) to the extent required due to an Asset Sale that resulted in an increase to Consolidated Net Income and not in excess of the amount of such increase and (y) repayments of ABL Loans shall be deducted in determining Excess Cash Flow to the extent such repayments were accompanied by a like permanent reduction in the commitments under the ABL Credit Agreement, unless in the case of clause (y) such repayments were financed with the proceeds of asset sales, sales or issuances of Equity Interests, capital contributions, insurance (other than business interruption insurance to the extent included in Consolidated Net Income) or Indebtedness), (iii) the increase, if any, in Adjusted Consolidated Working Capital from the first day to the last day of such period, (iv) fees and expenses paid in cash in connection with any Permitted Acquisition, incurrence of Indebtedness, issuance of Equity Interests or asset sale (whether or not consummated) during such period, (v) purchase price adjustments paid in cash in connection with any Permitted Acquisition or asset sale during such period, (vi) the Aggregate Consideration paid in cash by Parent or any of its Restricted Subsidiaries in respect of all Permitted Acquisitions during such period (other than Aggregate Consideration to the extent financed with proceeds of asset sales, sales or issuances of Equity Interests, capital contributions, insurance (other than business interruption insurance to the extent included in Consolidated Net Income) or Indebtedness (other than ABL Loans)), (vii) the aggregate amount of cash used by Parent or any of its Restricted Subsidiaries to make Investments pursuant to Section 9.05(e), (i), (p), (q) and (s) during such period (other than intercompany Investments made in Parent or any of its Restricted Subsidiaries and Investments to the extent financed with proceeds of asset sales, sales or

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issuances of Equity Interests, capital contributions, insurance (other than business interruption insurance to the extent included in Consolidated Net Income) or Indebtedness (other than ABL Loans)), (viii) the aggregate amount of cash payments made during such period in respect of non-cash charges or non-cash losses taken in prior periods, (ix) Dividends paid by Parent in such period (or, at the option of the Borrower, with respect to Dividends anticipated in good faith to be paid under Section 9.03(f)) under Sections 9.03(c), (d), (e), (f), (h) and (j) to the extent not expensed and (x) cash payments by Parent and its Restricted Subsidiaries during such period in respect of long-term liabilities of Parent and its Restricted Subsidiaries other than Indebtedness.

“Excess Cash Payment Date” shall mean the date that is 95 days after the last day of the Fiscal Year ending December 30, 2017 and each date that is 95 days after the last day of each subsequent Fiscal Year of the Parent.

“Excess Cash Payment Period” shall mean (i) with respect to the repayment required on the first Excess Cash Payment Date, the period from January 1, 2017 to the last day of Parent’s Fiscal Year ending December 30, 2017 (taken as one accounting period), and (ii) with respect to the repayment required on each successive Excess Cash Payment Date, the immediately preceding Fiscal Year of the Parent.

“Excluded Subsidiary” shall mean (i) any Immaterial Subsidiary, (ii) any Domestic Subsidiary that is prohibited by law, regulation or contractual obligation from providing the Guaranty or that would require the consent, approval, license or authorization of a governmental authority (including the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government) in order to provide the Guaranty, (iii) any Pass-Through Foreign Holding Company, (iv) any Foreign Subsidiary or Domestic Subsidiary that is a Subsidiary of a Foreign Subsidiary, (v) any Domestic Subsidiary to the extent that the cost of obtaining the Guaranty by such Domestic Subsidiary outweighs the benefit afforded thereby as reasonably determined by the Administrative Agent, (vi) any Unrestricted Subsidiary or (vii) any Domestic Subsidiary that is a registered 501c-3 non-profit organization.

“Excluded Swap Obligation” shall mean, with respect to any Credit Party, any Specified Swap Obligation if, and to the extent that, all or a portion of the guarantee by such Credit Party of, or the grant by such Credit Party of a security interest to secure, such Specified Swap Obligation (or any guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) (a) by virtue of such Credit Party’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the guarantee of such Credit Party or the grant of such security interest becomes or would become effective with respect to such Specified Swap Obligation but for such Credit Party’s failure to constitute an “eligible contract participant” at such time. If a Specified Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Specified Swap Obligation that is attributable to swaps for which such Obligation is guaranteed by such Credit Party or security interest is or becomes illegal or unlawful under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof).

“Excluded Taxes” shall mean any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case,

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(i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Recipient with respect to an applicable interest in the Loan (or any fees hereunder) pursuant to a law in effect on the date on which (i) such Recipient becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower under Section 2.13) or (ii) in the case of a Lender, such Lender changes its lending office, except in each case to the extent that, pursuant to Section 4.04, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 4.04(f) and (d) any U.S. federal withholding Taxes imposed under FATCA.

“Existing First-Lien Term Loan Credit Agreement” shall mean the First-Lien Credit Agreement, dated as of October 10, 2012, among Holdings, the Borrower, Deutsche Bank Trust Company Americas, as agent, and the lenders party thereto, as amended, supplemented or otherwise modified prior to the date hereof, to be repaid in full on the Effective Date.

“Existing Second-Lien Term Loan Credit Agreement” shall mean the Second-Lien Credit Agreement, dated as of October 10, 2012, among Holdings, the Borrower, Deutsche Bank Trust Company Americas, as agent, and the lenders party thereto, as amended, supplemented or otherwise modified prior to the date hereof, to be repaid in full on the Effective Date.

“Extended Loans” shall have the meaning provided in Section 2.16(a).

“Extended Term Commitments” shall mean one or more Classes of term loan commitments hereunder that result from an Extension.

“Extending Term Lender” shall have the meaning provided in Section 2.16(a).

“Extension” shall have the meaning provided in Section 2.16(a).

“Extension Offer” shall have the meaning provided in Section 2.16(a).

“Fair Market Value” shall mean, with respect to any asset (including any Equity Interests of any Person), the value of the consideration obtainable in a sale of such asset at such date of determination assuming a sale by a willing seller to a willing purchaser dealing at arm’s length and arranged in an orderly manner over a reasonable period of time having regard to the nature and characteristics of such asset.

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

“FCPA” shall mean The United States Foreign Corrupt Practices Act of 1977, as amended.

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“Federal Funds Effective Rate” shall mean, for any period, a fluctuating interest rate equal for each day during such period to the weighted average of the rates on overnight Federal Funds transactions with members of the Federal Reserve System arranged by Federal Funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by the Administrative Agent from three Federal Funds brokers of recognized standing selected by the Administrative Agent.

“Fees” shall mean all amounts payable pursuant to or referred to in Section 3.01 and 4.01(c).

“First Lien Net Leverage Ratio” shall mean, on any date of determination, the ratio of (a) the sum of the outstanding Consolidated First Lien Indebtedness (including, without limitation, any Indebtedness incurred under this Agreement and the ABL Credit Agreement) as of such date (calculated net of the Unrestricted Cash Amount as of such date) to (b) Consolidated EBITDA for the Calculation Period most recently ended on or prior to such date; provided that for purposes of any calculation of the First Lien Net Leverage Ratio pursuant to this Agreement, Consolidated EBITDA and Consolidated First Lien Indebtedness shall be determined on a Pro Forma Basis in accordance with the definition of “Pro Forma Basis”.

“First Priority” shall mean, with respect to any Lien purported to be created on any Collateral pursuant to any Security Document, that such Lien is prior in right to any other Lien thereon, other than any Permitted Liens applicable to such Collateral which have priority over the respective Liens on such Collateral created pursuant to the relevant Security Document (but excluding Permitted Liens on Term Loan Priority Collateral as described in clause (y) of Section 9.01(d) and Permitted Liens as described in clause (z) of Section 9.01(d)).

“Fiscal Quarter” shall mean, for any Fiscal Year, (i) for the first Fiscal Quarter of each Fiscal Year, the fiscal period commencing on the day after the last day of the preceding Fiscal Year and ending on the date that is thirteen weeks after such date, (ii) for the second Fiscal Quarter of each Fiscal Year, the fiscal period commencing on the day after the last day of the preceding Fiscal Quarter and ending on the date that is thirteen weeks after such date, (iii) for the third Fiscal Quarter of each Fiscal Year, the fiscal period commencing on the day after the last day of the preceding Fiscal Quarter and ending on the date that is thirteen weeks after such date and (iv) for the fourth Fiscal Quarter of each Fiscal Year, the fiscal period commencing on the day after the last day of the preceding Fiscal Quarter and ending on the Saturday closest to December 31 of each calendar year.

“Fiscal Year” shall mean the fiscal year of the Parent and its Subsidiaries ending on the Saturday closest to December 31 of each calendar year.

“Fixed Amounts” shall have the meaning provided in Section 1.03.

“Flood Hazard Property” shall have the meaning provided in Section 8.12(d).

“Flood Hazard Notice” shall have the meaning provided in Section 8.12(d).

“Foods Acquisition Agreement” shall mean that certain Stock Purchase Agreement, dated as of July 27, 2010, by and among the Borrower, Advance Food Company Holdings, Inc., Advance Food Company, Inc., and the Shareholders (as defined therein) party thereto, as the same may be amended, modified and/or supplemented from time to time in accordance with the terms hereof and thereof.

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“Foreign Disposition” shall have the meaning provided in Section 4.02(k).

“Foreign Lender” shall mean a Lender that is not a U.S. Person.

“Foreign Pension Plan” shall mean any plan, fund (including, without limitation, any superannuation fund) or other similar program established or maintained outside the United States by Holdings or any one or more of its Subsidiaries primarily for the benefit of employees of Holdings or such Subsidiaries residing outside the United States, which plan, fund or other similar program provides, or results in, retirement income, a deferral of income in contemplation of retirement or payments to be made upon termination of employment, and which plan is not subject to ERISA or the Code.

“Foreign Subsidiary” shall mean, as to any Person, any Subsidiary of such Person that is (i) treated as a corporation for U.S. federal income tax purposes that is formed or incorporated outside of the United States, (ii) a Domestic Subsidiary substantially all of whose assets consist, directly or indirectly, of Subsidiaries described in clause (i) of this definition or (iii) treated as disregarded for U.S. federal income tax purposes that owns more than 65% of the voting Equity Interests of a Subsidiary described in clauses (i) or (ii) of this definition (and that does not own more than an immaterial amount of other assets); provided, however, that if any Subsidiary described in clause (ii) or (iii) executes and delivers, at its election, a Guaranty and all applicable Security Documents contemplated to be entered into by a new Wholly-Owned Domestic Subsidiary pursuant to Section 8.12(f), such Subsidiary shall cease to constitute a Foreign Subsidiary.

“Fund” shall mean any Person (other than a natural person) that is primarily engaged in making, purchasing, holding or otherwise investing in loans, bonds and other extensions of credit in the ordinary course.

“GAAP” shall mean generally accepted accounting principles in the United States of America, as in effect from time to time; provided, however, that if the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Effective Date in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith. Notwithstanding any other provision contained herein, (a) all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to any election under FASB Accounting Standards Codification 825-Financial Instruments, or any successor thereto (including pursuant to the FASB Accounting Standards Codification), to value any Indebtedness of Parent, Holdings, the Borrower or any Subsidiary at “fair value,” as defined therein and (b) the amount of any Indebtedness under GAAP with respect to Capitalized Lease Obligations shall be determined in accordance with the definition of Capitalized Lease Obligations; provided, further, that if the Borrower notifies the Administrative Agent that the Borrower, Holdings or Parent has elected to report under international accounting standards as promulgated by the International Accounting Standards Board as in effect from time to time (“IFRS”) the financial statements required to be delivered pursuant to this Agreement, following such change from GAAP to IFRS, (i) the Borrower shall furnish to the Administrative Agent and the Lenders a reconciliation between such financial statements before and after giving effect to such change from GAAP to IFRS for one full Fiscal Year and (ii) any reference in this Agreement to “GAAP” shall mean generally accepted accounting principles pursuant to IFRS (it being understood that any calculation or determination in this Agreement that requires the application of GAAP for periods that include Fiscal

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Quarters ended prior to the Borrower’s election to apply IFRS shall remain as previously calculated or determined in accordance with GAAP).

“Governmental Authority” shall mean the government of the United States, any other nation or any political subdivision thereof, whether state, provincial or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.

“Guarantor” shall mean each of Parent, Holdings and each Subsidiary Guarantor.

“Guaranty” shall have the meaning provided in Section 5.09.

“Hazardous Materials” shall mean (a) any petroleum or petroleum products, radioactive materials, asbestos in any form that is or could become friable, urea formaldehyde foam insulation, dielectric fluid containing levels of polychlorinated biphenyls, and radon gas; (b) any chemicals, materials or substances defined as or included in the definition of “hazardous substances,” “hazardous waste,” “hazardous materials,” “extremely hazardous substances,” “restricted hazardous waste,” “toxic substances,” “toxic pollutants,” “contaminants,” or “pollutants,” or words of similar import, under any applicable Environmental Law; and (c) any other chemical, material or substance, the exposure to, or Release of which is prohibited, limited or regulated by any Governmental Authority.

“Hedging Creditors” shall mean, collectively, each Lender Counterparty party to a Secured Hedging Agreement.

“Holdings” shall have the meaning provided in the first paragraph of this Agreement.

“Immaterial Subsidiary” shall mean any Subsidiary of Parent (other than Holdings and the Borrower) that (a) did not, as of the last day of the Fiscal Quarter of the Parent most recently ended, have assets with a value in excess of 2.5% of the total assets or revenues representing in excess of 2.5% of total revenues of Parent and its Subsidiaries, in each case, on a consolidated basis as of such date, and (b) taken together with all Immaterial Subsidiaries as of the last day of the Fiscal Quarter of the Borrower most recently ended, did not have assets with a value in excess of 5.0% of total assets or revenues representing in excess of 5.0% of total revenues of Parent and its Subsidiaries, in each case, on a consolidated basis as of such date.

“Incremental Amendment” shall have the meaning provided in Section 2.14(a).

“Incremental Equivalent Debt” shall have the meaning provided in Section 9.04(p).

“Incremental Facility” shall mean (i) each Incremental Loan and (ii) the Incremental Equivalent Debt.

“Incremental Facility Effective Date” shall have the meaning provided in Section 2.14(a).

“Incremental Loan Commitment” shall mean, as to any Lender, its obligation to make an Incremental Loan to the Borrower pursuant to Section 2.14 in the principal amount set forth in the applicable Incremental Amendment.

“Incremental Loans” shall have the meaning provided in Section 2.14(a).

“Incurrence Based Amounts” shall have the meaning provided in Section 1.03.

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“Indebtedness” shall mean, as to any Person, without duplication, (a) all indebtedness of such Person for borrowed money or for the deferred purchase price of property or services, (b) the maximum amount available to be drawn or paid under all letters of credit, bankers’ acceptances, bank guaranties, surety and appeal bonds and similar obligations issued for the account of such Person and all unpaid drawings and unreimbursed payments in respect of such letters of credit, bankers’ acceptances, bank guaranties, surety and appeal bonds and similar obligations, (c) all indebtedness of the types described in clause (a), (b), (d), (e) or (f) of this definition secured by any Lien on any property owned by such Person, whether or not such indebtedness has been assumed by such Person (provided that, if the Person has not assumed or otherwise become liable in respect of such indebtedness, such indebtedness shall be deemed to be in an amount equal to the lesser of the amount secured and the Fair Market Value of the property to which such Lien relates), (d) all Capitalized Lease Obligations of such Person, (e) all Contingent Obligations of such Person in respect of Indebtedness of others of the kinds referred to in clauses (a) through (d) above and clause (f) below and (f) all obligations under any Interest Rate Protection Agreement or any Other Hedging Agreement.  Notwithstanding the foregoing, Indebtedness shall not include trade payables, accrued expenses and deferred tax and other credits incurred by any Person in the ordinary course of business of such Person.

“Indemnified Person” shall have the meaning provided in Section 12.01(a).

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

“Initial Loan Commitment” shall mean, as to each Term Lender, its obligation to make its portion of the Loans to the Borrower on the Effective Date pursuant to Section 2.01, in the principal amount set forth opposite such Lender’s name on Schedule 1.01. The aggregate principal amount of Initial Loan Commitments on the Effective Date is $1,300,000,000.

“Initial Maturity Date” shall mean June 2, 2023.

“Intercompany Loans” shall have the meaning provided in Section 9.05(h).

“Intercompany Note” shall mean a promissory note evidencing Intercompany Loans, duly executed and delivered substantially in the form of Exhibit J (or such other form as shall be reasonably satisfactory to the Administrative Agent).

“Intercompany Subordination Agreement” shall mean that certain Intercompany Subordination Agreement, dated as of the date hereof, among Parent, Holdings, the Borrower, the Restricted Subsidiaries of Parent from time to time party thereto, and the Administrative Agent, as it may be amended, restated, amended and restated, amended and extended, supplemented, modified, restructured or replaced from time to time in accordance with its terms.

“Intercreditor Agreement” shall have the meaning provided in Section 5.11.

“Interest Coverage Ratio” shall mean, for any Calculation Period, the ratio of (a) Consolidated EBITDA for such Calculation Period to (b) Consolidated Interest Expense for such Calculation Period; provided that for purposes of any calculation of the Interest Coverage Ratio pursuant to this Agreement, Consolidated EBITDA and Consolidated Interest Expense shall be determined on a Pro Forma Basis in accordance with the definition of “Pro Forma Basis”.

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“Interest Determination Date” shall mean, with respect to any LIBOR Loan, the second Business Day prior to the commencement of any Interest Period relating to such LIBOR Loan.

“Interest Period” shall have the meaning provided in Section 2.09.

“Interest Rate Protection Agreement” shall mean any interest rate swap agreement, interest rate cap agreement, interest collar agreement, interest rate hedging agreement or other similar agreement or arrangement.

“Inventory” shall mean inventory (as that term is defined in the UCC).

“Investments” shall have the meaning provided in Section 9.05.

“IPO” shall mean a bona fide underwritten sale to the public of common stock of Holdings or Parent (or any parent holding company thereof) pursuant to a registration statement (other than on Form S-8 or any other form relating to securities issuable under any benefit plan of Parent, Holdings or any of its Subsidiaries, as the case may be) that is declared effective by the SEC.

“IRS” shall mean the United States Internal Revenue Service.

“Joint Book-Running Managers” shall mean MSSF, DBSI, Barclays Bank PLC, Credit Suisse Securities (USA) LLC, Macquarie Capital (USA) Inc., and Merrill Lynch, Pierce, Fenner & Smith Incorporated in their capacity as Joint Book-Running Managers and any successor thereto.

“Joint Lead Arrangers” shall mean MSSF, DBSI, Barclays Bank PLC, Credit Suisse Securities (USA) LLC, Macquarie Capital (USA) Inc., and Merrill Lynch, Pierce, Fenner & Smith Incorporated in their capacity as Joint Lead Arrangers and any successor thereto.

“Junior Financing” shall mean, collectively, any Permitted Junior Priority Refinancing Debt, any other Junior Lien Debt and any other Indebtedness that is contractually subordinated to the Obligations.  The ABL Credit Agreement and the ABL Loans (and any Permitted Refinancing of the ABL Credit Agreement and the ABL Loans) shall not be considered to be “Junior Financing”.

“Junior Financing Documentation” shall mean any documentation governing any Junior Financing.

“Junior Lien Debt” shall mean, collectively, secured Indebtedness (including any Registered Equivalent Notes) incurred by the Borrower or any Guarantor in the form of one or more series of second lien secured notes or second lien secured loans; provided that (i) such Indebtedness (x) is secured by the Term Loan Priority Collateral on a second-priority basis with the Obligations and in priority to the ABL Obligations, and (y) is secured by the ABL Priority Collateral on a third-priority basis with the ABL Obligations and on a second-priority basis with the Obligations, (ii) such Indebtedness is not guaranteed by any Person other than the Credit Parties, (iii) such Indebtedness is not secured by any assets of Parent or any of its Restricted Subsidiaries other than the Collateral, (iv) such Indebtedness shall not mature or require any scheduled amortization or scheduled payments of principal and is not subject to mandatory redemption, repurchase, repayment or sinking fund obligation (other than customary offers to repurchase on a change of control, asset sale or casualty event and customary acceleration rights after an event of default, or prepayments of the type applicable to the Loans, to the extent the amounts subject to such prepayments are applied first, to the Loans, and second, to such Indebtedness), in each case, prior to the date that is 91 days after the Latest Maturity Date then in effect and the Weighted Average Life to Maturity of such Indebtedness shall not be shorter than the Weighted Average Life to Maturity of the

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Loans at the time of such incurrence (except to the extent of nominal amortization for periods where amortization has been eliminated as a result of prepayment of the applicable Loans), and (v) the holders of such Indebtedness (or their representative agents) and the Administrative Agent shall be party to the Intercreditor Agreement (provided, that if the Borrower or any Guarantor shall incur Junior Lien Debt, then the Intercreditor Agreement shall be amended, or amended and restated, in substantially the form of the Restated Intercreditor Agreement, with such modifications thereto as may be reasonably agreed by the Administrative Agent, the Security Agent, the ABL Agent (if any) and the holders of such Indebtedness (or their representative agents)) and, if applicable, the holders of such Indebtedness (or their representative agents) shall be a party to a Second Lien Intercreditor Agreement with the holders of other Junior Lien Debt (or their representative agents).

“Latest Maturity Date” shall mean, at any date of determination, the latest maturity or expiration date applicable to any Loan or Commitment hereunder at such time, including the latest maturity or expiration date of any Incremental Loan, Other Loans, or any Extended Loan, in each case as extended in accordance with this Agreement from time to time.

“LCA Election” shall have the meaning provided in Section 1.03.

“LCA Test Date” shall have the meaning provided in Section 1.03.

“Leaseholds” of any Person shall mean all the right, title and interest of such Person as lessee, sublessee or licensee in, to and under leases, subleases or licenses of land, improvements and/or fixtures.

“Lender” shall mean each financial institution listed on Schedule 1.01, as well as any Person that becomes a “Lender” hereunder pursuant to Section 2.13, 2.14, 2.17 or 12.04(b), in each case, for so long as such Person holds Loans or Commitments hereunder.

“Lender Affiliate” shall mean (a) any Affiliate of any Lender, (b) any person that is administered or managed by any Lender or any Affiliate of any Lender and that is engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business and (c) with respect to any Lender which is a fund that invests in commercial loans and similar extensions of credit, any other fund that invests in commercial loans and similar extensions of credit and is managed or advised by the same investment advisor as such Lender or by an Affiliate of such Lender or investment advisor.

“Lender Counterparty” shall mean any counterparty to an Interest Rate Protection Agreement and/or Other Hedging Agreement that is the Administrative Agent, a Lender, a Joint Lead Arranger or an Affiliate of the Administrative Agent, a Joint Lead Arranger or a Lender at the time such Person enters into such Interest Rate Protection Agreement and/or Other Hedging Agreement (even if the Administrative Agent or such Lender subsequently ceases to be the Administrative Agent or a Lender, as the case may be, under this Agreement for any reason), so long as (i) the Administrative Agent, such Lender or such Affiliate participates in such Interest Rate Protection Agreement and/or Other Hedging Agreement and (ii) such Person is designated as a “Lender Counterparty” under this Agreement in a written notice delivered to the Administrative Agent by the Borrower.

“Lender Default” shall mean (a) the wrongful refusal (which has not been retracted) or the failure of a Lender to make available its portion of any Borrowing that is required to be funded hereunder, (b) a Lender having notified in writing to the Borrower and/or the Administrative Agent that such Lender does not intend to comply with its obligations under Section 2.01, Section 2.04 or Section 2.14 to the extent such Lender has agreed to make Incremental Loans thereunder or has made a public

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statement to that effect, (c) a Lender having failed, within three Business Days after written request by the Administrative Agent or the Borrower to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender Default shall cease to exist upon receipt of such written confirmation by the Administrative Agent and the Borrower), (d) a Lender or any parent company of such having become the subject of a bankruptcy or insolvency proceeding, or having a receiver, conservator, trustee, custodian, administrator, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business, appointed for it, or having taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment or (e) such Lender becomes subject the subject of a Bail-In Action.

“LIBO Rate” shall mean:

(i) with respect to any Borrowing of LIBOR Loans for any Interest Period, (a) the rate per annum determined by the Administrative Agent at approximately 11:00 a.m. (London time) on the date that is 2 Business Days prior to the commencement of such Interest Period by reference to the Reuters Screen LIBOR01 for deposits in Dollars (or such other comparable page as may, in the opinion of the Administrative Agent, replace such page for the purpose of displaying such rates) (as set forth by (1) the Intercontinental Exchange Group, (2) any publicly available successor service or entity that has been authorized by the U.K. Financial Conduct Authority to administer the London Interbank Offered Rate or (3) any publicly available service selected by the Administrative Agent that has been nominated by such an entity as an authorized information vendor for the purpose of displaying such rates) for a period equal to such Interest Period; provided that to the extent that an interest rate is not ascertainable pursuant to the foregoing provisions of this definition, the “LIBO Rate” shall be the interest rate per annum determined by the Administrative Agent in consultation with the Borrower, multiplied by (b) the Statutory Reserves; and

(ii) with respect to any interest calculation with respect to any Base Rate Loans, (a) the rate per annum determined by the Administrative Agent at approximately 11:00 a.m. (London time) on such date by reference to the Reuters Screen LIBOR01 for deposits in Dollars (or such other comparable page as may, in the opinion of the Administrative Agent, replace such page for the purpose of displaying such rates) (as set forth by (1) the Intercontinental Exchange Group, (2) any publicly available successor service or entity that has been authorized by the U.K. Financial Conduct Authority to administer the London Interbank Offered Rate or (3) any publicly available service selected by the Administrative Agent that has been nominated by such an entity as an authorized information vendor for the purpose of displaying such rates) for a period of one month, multiplied by (b) the Statutory Reserves;

provided that in the case of clauses (i) and (ii) above, the LIBO Rate with respect to Effective Date Loans shall not be less than 1.00% per annum.

“LIBOR Loan” shall mean each Loan designated as such by the Borrower at the time of the incurrence thereof or conversion thereto bearing interest at a rate determined by reference to the LIBO Rate.

“Lien” shall mean any mortgage, pledge, hypothecation, assignment in the nature of a security interest, encumbrance, lien (statutory or other) or other security agreement of any kind or nature whatsoever (including, without limitation, any conditional sale or other title retention agreement and any Capitalized Lease Obligations having substantially the same economic effect as any of the foregoing).

“Limited Condition Acquisition” shall have the meaning provided in Section 1.03.

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“Loans” shall mean Effective Date Loans, Incremental Loans, Other Loans and Extended Loans.

“Management Agreements” shall mean all material management agreements between or among Parent or any of its Restricted Subsidiaries, on the one hand, and the Sponsor or the Advance Shareholders, on the other hand.

“Market Capitalization” shall mean an amount equal to (i) the total number of issued and outstanding shares of Equity Interests of Parent or any direct or indirect parent company on the date of declaration of the relevant Dividend multiplied by (ii) the arithmetic mean of the closing prices per share of such Equity Interests on the New York Stock Exchange (or, if the primary listing of such Equity Interests is on another exchange, on such other exchange) for the 30 consecutive trading days immediately preceding the date of declaration of such Dividend.

“Margin Stock” shall have the meaning provided in Regulation U.

“Material Adverse Effect” shall mean (a) a material adverse effect on the business, operations, property, assets, liabilities or financial condition of Parent, Holdings, the Borrower and their respective Subsidiaries taken as a whole or (b) a material adverse effect (i) on the rights or remedies of the Lenders, the Administrative Agent or the Security Agent under the Credit Documents or (ii) on the ability of the Credit Parties to perform their payment obligations to the Lenders, the Administrative Agent or the Security Agent under the Credit Documents.

“Material Asset Sale” shall mean any sale, transfer or other disposition of any asset, or any series of related sales, transfers and/or other dispositions of assets (i.e., separate assets being sold, transferred and/or otherwise disposed of as part of an identifiable group of related assets and within a reasonably limited time period) where the aggregate consideration therefor is equal to, or in excess of, $10,000,000.

“Material Real Property” shall mean any owned Real Property located in the United States owned by any Credit Party other than such Real Property the Fair Market Value of which is less than $5,000,000 or any Leasehold unless, in either case, a Mortgage is granted (or required to be granted) in respect of such Real Property pursuant to the terms of either the ABL Credit Documents or the documents governing any secured Indebtedness incurred or issued in reliance on Section 9.04(l), Section 9.04(p) or Section 9.04(t).

“Maturity Date” shall mean, (w) with respect to the Effective Date Loans, the Initial Maturity Date, (x) with respect to Other Loans, the final maturity date as specified in the applicable Refinancing Amendment, (y) with respect to Extended Loans, the final maturity date as specified in the applicable Extension Offer, and (z) with respect to Incremental Loans, the final maturity date as specified in the applicable Incremental Amendment; provided, that if any such day is not a Business Day, the applicable Maturity Date shall be the Business Day immediately succeeding such day.

“Maximum Incremental Facilities Amount” shall mean, at any date of determination, the sum of (i) an unlimited amount if, after giving effect to the incurrence of such additional amount, the First Lien Net Leverage Ratio shall not exceed 4.70:1.00, (x) calculated as if (A) any junior lien or unsecured Incremental Equivalent Debt (or any permitted Refinancing thereof) or (B) any Refinanced Debt or any other Credit Agreement Refinancing Indebtedness in respect of any Incremental Loans that is junior lien or unsecured Indebtedness, in each case constitutes Consolidated First Lien Indebtedness, (y) determined on a Pro Forma Basis as of the last day of the Calculation Period most recently ended prior to the date of the incurrence of the Incremental Facility, as if such Incremental Facility had been incurred (and, if

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incurred to finance a Permitted Acquisition or other Investment permitted hereunder, such Permitted Acquisition or other Investment permitted hereunder had been consummated) on the first day of such Calculation Period and (z) calculated not to include the cash proceeds of any such Incremental Facility in the amount of Unrestricted cash and Cash Equivalents to be netted in calculating such ratio plus (ii) (x) $200,000,000 minus (y) the sum of (A) the aggregate principal amount of Incremental Loans made in reliance on this clause (ii) pursuant to Section 2.14(a) prior to such date and (B) the aggregate principal amount of all Indebtedness incurred or issued in reliance on this clause (ii) pursuant to Section 9.04(p) prior to such date plus (iii) the amount of all voluntary prepayments of Loans or Incremental Equivalent Debt, in each case to the extent not funded with the proceeds of long-term Indebtedness (other than revolving Indebtedness) or with the proceeds of issuances of Equity Interests prior to such date (it being understood that (I) the Borrower shall be deemed to have used amounts under clause (iii) prior to utilization of amounts under clause (i) and (ii), (II) the Borrower shall be deemed to have used amounts under clause (i) (to the extent compliant therewith) prior to utilization of amounts under clause (ii), and (III) Loans may be incurred under each of clauses (i), (ii) and/or (iii), and proceeds from any such incurrence may be utilized in a single transaction by first calculating the incurrence under clause (iii) above, then calculating the incurrence under clause (i) above, and then calculating the incurrence under clause (ii) above). In connection with any Incremental Loan or Incremental Equivalent Debt, the Borrower may elect to incur such Incremental Loans or Incremental Equivalent Debt pursuant to clause (i), (ii) or (iii) of the preceding sentence.

“Maximum Rate” shall have the meaning provided in Section 12.20.

“Minimum Borrowing Amount” shall mean $5,000,000.

“Minimum Extension Condition” shall have the meaning provided in Section 2.16(b).

“Model” shall mean the model prepared by the Borrower and delivered to the Joint Lead Arrangers on or prior to May 10, 2016.

“Moody’s” shall mean Moody’s Investors Service, Inc.

“Mortgage” shall mean a mortgage, deed of trust, deed to secure debt, debenture or similar security instrument in form and substance reasonably satisfactory to the Administrative Agent.

“Mortgage Policy” shall mean an ALTA Lender’s title insurance policy (Form 2006).

“Mortgaged Property” shall mean any Real Property owned by the Borrower or any of the Guarantors that is encumbered (or required to be encumbered) by a Mortgage pursuant to the terms of this Agreement or any Security Document.

“MSSF” shall have the meaning provided in the introductory paragraph of this Agreement.

“Multiemployer Plan” shall mean any multiemployer plan as defined in Section 4001(a)(3) of ERISA that is subject to Title IV of ERISA and is contributed to by (or to which there is an obligation to contribute of) Holdings or Subsidiary of Holdings or an ERISA Affiliate.

“Net Cash Proceeds” shall mean, the gross cash proceeds received from such event, net of transaction costs (including, as applicable, any underwriting, brokerage or other customary commissions and reasonable legal, advisory and other fees and expenses associated therewith) received from any such event.

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“Net Insurance Proceeds” shall mean, with respect to any Recovery Event, the cash proceeds received by the respective Person in connection with such Recovery Event (net of (a) costs and taxes incurred in connection with such Recovery Event and (b) required payments of any Indebtedness (other than Indebtedness secured pursuant to the Security Documents, solely with respect to Collateral constituting Term Loan Priority Collateral and any ABL Loan Documents) which is secured by the respective assets the subject of such Recovery Event).

“Net Sale Proceeds” shall mean (a) in connection with any sale or other disposition of assets, the proceeds thereof actually received in the form of cash and Cash Equivalents (including any such proceeds received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or otherwise, but only as and when received), net of (i) attorneys’ fees, accountants’ fees, investment banking fees, and other bona fide fees, costs and expenses incurred in connection therewith, (ii) amounts required to be applied to the repayment of Indebtedness secured by a Lien expressly permitted hereunder on any asset that is the subject of such sale or other disposition of assets (other than any Lien pursuant to a Security Document), (iii) taxes paid and the Borrower’s reasonable and good faith estimate of income, franchise, sales, and other applicable taxes required to be paid by Parent or any of its Restricted Subsidiaries in connection with such sale or other disposition of assets, (iv) reserves for any liabilities attributable to the seller’s indemnities and representations and warranties to the purchaser in respect of such sale or other disposition of assets owing by Parent or any of its Restricted Subsidiaries in connection therewith (including pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations (fixed or contingent) associated with such transaction) and that are reasonably determined by the Borrower in good faith as a reserve in accordance with GAAP; provided that to the extent such indemnification payments are not made and are no longer reserved for, such reserve amount shall constitute Net Sale Proceeds, (v) cash escrows to Parent or any of its Restricted Subsidiaries from the sale price for such sale or other disposition of assets; provided that any cash released from such escrow shall constitute Net Sale Proceeds upon such release and (vi) other customary fees and expenses actually incurred in connection therewith, and (b) in connection with any incurrence or issuance of Indebtedness, the cash proceeds received from any such issuance or incurrence, net of attorneys’ fees, investment banking fees, accountants’ fees, underwriting discounts and commissions and other bona fide fees and expenses actually incurred in connection therewith.

“Non-Defaulting Lender” shall mean and include each Lender, other than a Defaulting Lender.

“Non-Wholly-Owned Subsidiary” shall mean, as to any Person, each Subsidiary of such Person which is not a Wholly-Owned Subsidiary of such Person.

“Note” shall have the meaning provided in Section 2.05(a).

“Notice of Borrowing” shall have the meaning provided in Section 2.03(a).

“Notice of Conversion/Continuation” shall have the meaning provided in Section 2.06.

“Notice Office” shall mean (i) for credit notices, the office of the Administrative Agent located at Morgan Stanley Senior Funding, Inc., 1585 Broadway, New York, New York 10036, Attention: Agency team, Telecopier No.: (212) 507-6680, Telephone: (917) 260-0588, and Email: AGENCY.BORROWERS@morganstanley.com and (ii) for operational notices, the office of the Administrative Agent located at Morgan Stanley Senior Funding, Inc., 1585 Broadway, New York, New York 10036, Attention: Agency team, Telecopier No.: (212) 507-6680, Telephone: (917) 260-0588, and

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Email: AGENCY.BORROWERS@morganstanley.com, or (in either case) such other office or person as the Administrative Agent may hereafter designate in writing as such to the other parties hereto.

“Obligations” shall mean all amounts owing to the Administrative Agent, the Security Agent or any Lender pursuant to the terms of this Agreement or any other Credit Document, including, without limitation, all amounts in respect of any principal, interest (including any interest accruing following maturity of the Loans and interest accruing subsequent to the filing of a petition in bankruptcy, reorganization or similar proceeding at the rate provided for in this Agreement, whether or not such interest is an allowed claim under any such proceeding or under applicable state, federal or foreign law), penalties, fees (including all legal fees and disbursements required to be paid by Parent and its Subsidiaries hereunder), expenses, indemnifications, reimbursements and other liabilities, and guarantees of the foregoing amounts.

“OFAC” shall mean the Office of Foreign Assets Control of the U.S. Department of the Treasury.

“Open Market Purchase Offer” shall have the meaning provided in Section 2.15(a).

“Other Connection Taxes” shall mean, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising solely from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, or enforced any Credit Document).

“Other Hedging Agreements” shall mean any foreign exchange contracts, currency swap agreements, commodity agreements or other similar agreements (including commodity futures or forward purchase contracts), or arrangements designed to protect against fluctuations in currency values or commodity prices.

“Other Intercreditor Agreements” shall mean any Second Lien Intercreditor Agreement, Pari Passu Intercreditor Agreement or other intercreditor in form and substance reasonably satisfactory to the Borrower and the Administrative Agent and the Security Agent.

“Other Loan Commitments” shall mean one or more Classes of term loan commitments hereunder that result from a Refinancing Amendment.

“Other Loans” shall mean one or more Classes of Loans that result from a Refinancing Amendment.

“Other Taxes” shall mean all present or future stamp, excise, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Credit Document except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.13).

“Parent” shall have the meaning provided in the first paragraph of this Agreement.

“Pari Passu Intercreditor Agreement” shall mean a “pari passu” intercreditor agreement substantially in the form of Exhibit K-2 to be entered into as required pursuant to the terms hereof.

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“Participant Register” shall have the meaning provided in Section 12.04(g).

“Pass-Through Foreign Holding Company” shall mean any Subsidiary that qualifies as a Foreign Subsidiary pursuant to clause (ii) or (iii) of the definition thereof (after giving effect to the proviso therein).

“Patent Security Agreement” has the meaning specified in the Security Agreement.

“Patriot Act” shall have the meaning provided in Section 12.18.

“Payment Office” shall mean the office of the Administrative Agent located at Morgan Stanley Senior Funding, Inc., 1585 Broadway, New York, New York 10036, Attention: Agency team, Telecopier No.: (212) 507-6680, Telephone: (917) 260-0588, and Email: AGENCY.BORROWERS@morganstanley.com or such other office as the Administrative Agent may hereafter designate in writing as such to the other parties hereto.

“PBGC” shall mean the Pension Benefit Guaranty Corporation established pursuant to Section 4002 of ERISA, or any successor thereto.

“Permitted Acquired Debt” shall have the meaning provided in Section 9.04(g).

“Permitted Acquisition” shall mean the acquisition by Parent or a Restricted Subsidiary of Parent of an Acquired Entity or Business; provided that (in each case) (a) the Acquired Entity or Business acquired pursuant to the respective Permitted Acquisition is in a business permitted by Section 9.12 and (b) all requirements of Sections 8.12 applicable to such Permitted Acquisition are satisfied within the time periods required thereby.  Notwithstanding anything to the contrary contained in the immediately preceding sentence, an acquisition which does not otherwise meet the requirements set forth above in the definition of “Permitted Acquisition” shall constitute a Permitted Acquisition if, and to the extent, the Required Lenders agree in writing, prior to the consummation thereof, that such acquisition shall constitute a Permitted Acquisition for purposes of this Agreement.

“Permitted Acquisition Additional Cost-Savings” shall mean, in connection with any Permitted Acquisition or other Investment permitted hereunder, those expected pro forma cost savings, operating expense reductions and synergies projected (in each case not included pursuant to subclause (x) of clause (ii) of the definition of Pro Forma Basis contained herein) in good faith by the Borrower to be realized as a result of specified actions taken within the 12 month period following the consummation of such Permitted Acquisition or other Investment permitted hereunder or committed or expected to be taken (in either case, whether or not actually taken in such period) within such 12 month period, net of the benefits actually realized for the respective period to the extent such are already included in the determination of Consolidated Net Income for the applicable period, in each case in connection with the combination of the operations of the respective Acquired Entity or Business acquired pursuant to such Permitted Acquisition or other Investment permitted hereunder with the operations of Parent and its Subsidiaries, which cost-savings adjustments shall be (i) estimated on a good faith basis by the Borrower, (ii) described (in reasonable detail) in an officer’s certificate delivered by an Authorized Officer of the Borrower to the Administrative Agent and (iii) net of the benefits actually realized for the respective period to the extent such are already included in the determination of Consolidated Net Income for the applicable period.

“Permitted Disposition Additional Cost-Savings” shall mean, in connection with any Material Asset Sale, those expected pro forma cost savings, operating expense reductions and synergies projected (in each case not included pursuant to subclause (x) of clause (iii) of the definition of Pro Forma

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Basis contained herein) in good faith by the Borrower to be realized as a result of specified actions taken within the 12 month period following the consummation of such Material Asset Sale or committed or expected to be taken (in either case, whether or not actually taken in such period) within such 12 month period, which cost-savings adjustments shall be (i) estimated on a good faith basis by the Borrower, (ii) described (in reasonable detail) in an officer’s certificate delivered by an Authorized Officer of the Borrower to the Administrative Agent, and (iii) net of the benefits actually realized for the respective period to the extent such are already included in the determination of Consolidated Net Income for the applicable period.

“Permitted Encumbrance” shall mean, with respect to any Mortgaged Property, easements, zoning restrictions, right-of-way restrictions and other similar encumbrances permitted under Section 9.01(h), and such exceptions to title as are set forth in the Mortgage Policy delivered with respect thereto.

“Permitted Holders” shall mean (i) the Sponsor, (ii) the Advance Shareholders, (iii) any current or subsequently appointed members of management of Parent, Borrower or Holdings and family members thereof, (iv) any trust, corporation, partnership or other entity, the beneficiaries, stockholders, partners, members, managers, owners or Persons beneficially holding a controlling interest of which (or persons which are the principal beneficiaries of which) consist of any one or more of the Persons referred to in the immediately preceding clauses (i), (ii) or (iii), (v) any group (as defined in the rules promulgated under Section 13(d) of the Exchange Act), which is controlled by any of the Persons referred to in the immediately preceding clauses (i), (ii), (iii) and (iv), or which Persons specified in such clauses beneficially own (as defined in Rule 13d-3 and 13d-5 under the Exchange Act) a majority of the Equity Interests held by such group (but without giving effect to the existence of such group), and (vi) any Affiliates of any of the Persons referenced in clauses (i), (ii), (iii), (iv) or (v).

“Permitted Junior Priority Refinancing Debt” shall mean Junior Lien Debt which constitutes Credit Agreement Refinancing Indebtedness.

“Permitted Liens” shall have the meaning provided in Section 9.01.

“Permitted Pari Passu Refinancing Debt” shall mean any secured Indebtedness (including any Registered Equivalent Notes) incurred by the Borrower or any Guarantor in the form of one or more series of senior secured notes or loans; provided that (i) such Indebtedness (x) is secured by the Term Loan Priority Collateral on a pari passu basis (but without regard to the control of remedies) with the Obligations and in priority to the ABL Obligations and (y) is secured by the ABL Priority Collateral on a second-priority basis with the ABL Obligations and on a pari passu basis with the Obligations, (ii) such Indebtedness constitutes Credit Agreement Refinancing Indebtedness and (iii) the holders of such Indebtedness (or their representative) and the Administrative Agent shall be party to the Intercreditor Agreement and the Pari Passu Intercreditor Agreement, as applicable.

“Permitted Ratio Debt” shall mean Indebtedness of the Borrower, any Guarantor or any Restricted Subsidiary; provided that (a) such Indebtedness is unsecured Indebtedness, (b) such Indebtedness does not mature prior to the date that is 91 days after the Latest Maturity Date at the time such Indebtedness is incurred and the Weighted Average Life to Maturity of such Indebtedness is no shorter than the remaining Weighted Average Life to Maturity applicable to the then outstanding Loans and (c) immediately after giving effect thereto and to the use of the proceeds thereof, (i) no Event of Default shall exist or result therefrom and (ii) on a Pro Forma Basis giving effect to the occurrence of such Indebtedness, the Interest Coverage Ratio is no less than 2.00:1.00 as of the last day of the most recently ended Calculation Period prior to the incurrence of such Indebtedness.

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“Permitted Refinancing” shall mean, with respect to any Person, any modification, refinancing, replacement, refunding, renewal or extension of any Indebtedness of such Person; provided that (a) except as otherwise permitted under Section 9.04, the aggregate principal amount (or accreted value, if applicable) of the Indebtedness incurred pursuant to such modification, refinancing, replacement, refunding, renewal or extension does not exceed the aggregate principal amount (or accreted value, if applicable) of the Indebtedness so modified, refinanced, replaced, refunded, renewed or extended except by an amount equal to unpaid accrued interest, fees, expenses and premium thereon and any make-whole payments applicable thereto and by an amount equal to any existing commitments unutilized thereunder, (b) such modification, refinancing, replacement, refunding, renewal or extension has a final stated maturity date equal to or later than the final stated maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being modified, refinanced, replaced, refunded, renewed or extended (excluding the effects of nominal amortization in the amount of no greater than one percent per annum and prepayments of Indebtedness) (provided, that with respect to a modification, refinancing, replacement, refunding, renewal or extension of any Junior Financing, at the time such modification, refinancing, replacement, refunding, renewal or extension occurs, and after giving effect thereto, the final stated maturity date of such Junior Financing shall be no earlier than the date that is 91 days after the Latest Maturity Date, and the Weighted Average Life to Maturity of such Junior Financing is no shorter than the remaining Weighted Average Life to Maturity applicable to the then outstanding Loans), (c) at the time thereof, no Event of Default shall have occurred and be continuing, (d) such modification, refinancing, replacement, refunding, renewal or extension does not add guarantors, obligors or security from that which applied to such Indebtedness being modified, refinanced, replaced, refunded, renewed or extended (in each case other than any additional guarantor or obligor that is also a Credit Party or any security that constitutes Collateral), (e) to the extent such Indebtedness being modified, refinanced, replaced, refunded, renewed or extended is subordinated in right of payment to the Obligations, such Indebtedness incurred pursuant to such modification, refinancing, replacement, refunding, renewal or extension is subordinated in right of payment to the Obligations on terms at least as favorable to the Lenders as those contained in the documentation governing the Indebtedness being modified, refinanced, replaced, refunded, renewed or extended, (f) to the extent such Indebtedness being modified, refinanced, replaced, refunded, renewed or extended is secured by Liens that are subordinated to the Liens securing the Obligations, such Indebtedness incurred pursuant to such modification, refinancing, replacement, refunding, renewal or extension is unsecured or secured by Liens that are subordinated to the Liens securing the Obligations on terms at least as favorable to the Lenders as those contained in the documentation (including any intercreditor or similar agreements) governing the Indebtedness being modified, refinanced, replaced, refunded, renewed or extended; provided that a certificate of an officer of the Borrower delivered to the Administrative Agent at least five Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirements of this clause (f) shall be conclusive evidence that such terms and conditions satisfy such requirement unless the Administrative Agent notifies the Borrower within five Business Day of such certificate that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees), (g) such Indebtedness incurred pursuant to such modification, refinancing, replacement, refunding, renewal or extension is incurred by the Person or Persons who are the obligors of the Indebtedness being modified, refinanced, replaced, refunded, renewed or extended, together with any other obligor that is also a Credit Party and (h) in the case of any Permitted Refinancing in respect of (x) the ABL Obligations or (y) any Permitted Pari Passu Refinancing Debt or any Permitted Junior Priority Refinancing Debt, in each case, such Permitted Refinancing is secured only by assets pursuant to one or more security agreements or mortgages permitted by and subject to the Intercreditor Agreement and, to the extent applicable, in the case of any Permitted Pari Passu Refinancing Debt, a Pari Passu Intercreditor Agreement or, in the case of any Permitted Junior Priority Refinancing Debt, to the extent applicable, a Second Lien Intercreditor Agreement.

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“Permitted Refinancing Indebtedness” shall mean any Indebtedness implemented pursuant to, and in accordance with the requirements of, a Permitted Refinancing.

“Permitted Unsecured Refinancing Debt” shall mean unsecured Indebtedness (including any Registered Equivalent Notes) incurred by the Borrower or any Guarantor in the form of one or more series of senior unsecured notes or loans; provided that such Indebtedness constitutes Credit Agreement Refinancing Indebtedness.

“Person” shall mean any individual, partnership, joint venture, firm, corporation, association, limited liability company, trust or other enterprise or any Governmental Authority.

“Plan” shall mean any pension plan as defined in Section 3(2) of ERISA which is maintained or contributed to by (or to which there is an obligation to contribute of) Parent or a Subsidiary of Parent or an ERISA Affiliate and is subject to Section 302 or Title IV of ERISA or Section 412 of the Code, other than a Multiemployer Plan.

“Platform” shall have the meaning provided in Section 12.03(c).

“Prime Rate” shall mean the rate which the Administrative Agent announces from time to time as its prime lending rate, the Prime Lending Rate to change when and as such prime lending rate changes.  The Prime Lending Rate is a reference rate and does not necessarily represent the lowest or best rate actually charged to any customer by the Administrative Agent, which may make commercial loans or other loans at rates of interest at, above or below the Prime Lending Rate.

“Pro Forma Basis” shall mean, in connection with any calculation of compliance with any financial covenant or financial term or financial ratio (such as Total Net Leverage Ratio, First Lien Net Leverage Ratio, Total Secured Net Leverage Ratio or Interest Coverage Ratio), the calculation thereof after giving effect on a pro forma basis to (a) the incurrence of any Indebtedness after the last day of the relevant Calculation Period as if such Indebtedness had been incurred (and the proceeds thereof applied) on the first day of such Calculation Period (b) the repayment of any Indebtedness on or after the last day of the relevant Calculation Period as if such Indebtedness had been retired or repaid on the first day of such Calculation Period, (c) any Specified Transaction then being consummated as well as any other Specified Transaction if consummated after the first day of the relevant Calculation Period, and on or prior to the date of the respective Specified Transaction then being effected or being effected on or prior to the applicable date of determination, as if such Specified Transaction had been consummated on the first day of such Calculation Period, and (d) the re-designation of any Unrestricted Subsidiary as a Restricted Subsidiary in accordance with the definition of “Unrestricted Subsidiary”, as well as any other such re-designation if consummated after the first day of the relevant Calculation Period, and on or prior to the date of the respective designation, as the case may be, then being effected or being effected on or prior to the applicable date of determination, as if such designation had occurred on the first day of such Calculation Period, with the following rules to apply in connection therewith:

(i)all Indebtedness (A) incurred or issued on or after the last day of the relevant Calculation Period (whether incurred to finance a Permitted Acquisition, to refinance Indebtedness or otherwise) shall be deemed to have been incurred or issued (and the proceeds thereof applied) on the first day of such Calculation Period and remain outstanding through the date of determination (unless otherwise repaid on or prior to the applicable date of determination) and (B) retired, repaid or redeemed on or after the last day of the relevant Calculation Period shall be deemed to have been retired, repaid or redeemed on the first day of such Calculation Period and remain retired through the date of determination; and

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(ii)in making any determination of Consolidated EBITDA on a Pro Forma Basis (including with respect to any ratio determined on a Pro Forma Basis for which Consolidated EBITDA is a component (provided that with respect to calculations of the Total Net Leverage Ratio pursuant to Section 4.02(f), such pro forma effect shall be given only to such Specified Transactions and redesignations during the applicable Excess Cash Payment Period)), pro forma effect shall be given to any Specified Transactions or any re-designation of an Unrestricted Subsidiary as a Restricted Subsidiary if effected on or prior to the applicable date of determination as if same had occurred on the first day of the respective Calculation Period and taking into account, in the case of any Permitted Acquisition or other Investment permitted hereunder, adjustments that are (x) factually supportable and identifiable cost and expense savings or (y) Permitted Acquisition Additional Cost-Savings, and, in the case of any Material Asset Sale, adjustments that are (x) factually supportable and identifiable cost and expense savings or (y) Permitted Disposition Additional Cost-Savings, in each case as if such cost or expense savings were realized on the first day of the respective period.  For the avoidance of doubt, the applicable date of determination shall be the date on which the applicable calculation is made in connection with the incurrence of Indebtedness, Permitted Acquisitions, Dividends or other action or event being tested or subject to satisfaction or compliance with a particular ratio and not the last day of the most recent Calculation Period.

“Projections” shall mean the projections that were prepared by or on behalf of the Borrower in connection with this Agreement and delivered to the Administrative Agent prior to the Effective Date.

“Public Lender” shall have the meaning provided in Section 12.03(c).

“Purchase Offers” shall have the meaning provided in Section 2.15(a).

“Qualified Credit Party” shall mean Parent, Holdings, the Borrower and each Wholly-Owned Subsidiary Guarantor.

“Qualified Equity Interests” shall mean any Equity Interests that are not Disqualified Equity Interests.

“Quarterly Payment Date” shall mean the last Business Day of each March, June, September and December occurring after the Effective Date.

“Real Property” of any Person shall mean all the right, title and interest of such Person in and to land, improvements and fixtures, including Leaseholds.

“Recipient” shall mean (a) the Administrative Agent and (b) any Lender, as applicable.

“Recovery Event” shall mean the receipt by Parent or any of its Restricted Subsidiaries of any cash insurance proceeds (other than business interruption insurance proceeds) or condemnation awards payable by reason of theft, loss, physical destruction, damage, taking or any other similar event with respect to any property or assets of Parent or any of its Restricted Subsidiaries.

“Reference Date” shall have the meaning provided in the definition of “Available Amount”.

“Refinanced Debt” shall have the meaning provided in the definition of “Credit Agreement Refinancing Indebtedness”.

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“Refinancing” shall have the meaning provided in the Section 5.07(a).

“Refinancing Amendment” shall mean an amendment to this Agreement in form and substance reasonably satisfactory to the Administrative Agent and the Borrower executed by each of (a) the Borrower, Parent and Holdings, (b) the Administrative Agent and (c) each Additional Lender and Lender that agrees to provide any portion of the Credit Agreement Refinancing Indebtedness being incurred pursuant thereto, in accordance with Section 2.17.

“Register” shall have the meaning provided in Section 12.15(a).

“Registered Equivalent Notes” shall mean, with respect to any notes originally issued in a Rule 144A or other private placement transaction under the Securities Act, substantially identical notes (having the same guarantees) issued in a dollar-for-dollar exchange therefore pursuant to an exchange offer registered with the SEC.

“Regulation D” shall mean Regulation D of the Board as from time to time in effect and any successor to all or a portion thereof establishing reserve requirements.

“Regulation T” shall mean Regulation T of the Board as from time to time in effect and any successor to all or a portion thereof.

“Regulation U” shall mean Regulation U of the Board as from time to time in effect and any successor to all or a portion thereof.

“Regulation X” shall mean Regulation X of the Board as from time to time in effect and any successor to all or a portion thereof.

“Rejection Notice” shall have the meaning provided in Section 4.02(j).

“Release” shall mean actively or passively disposing, discharging, injecting, spilling, pumping, leaking, leaching, dumping, emitting, escaping, emptying, pouring, seeping, migrating or the like, into or upon any land or water or air, or otherwise entering into the environment.

“Relevant Reinvestment Period” shall mean, with respect to any Asset Sale or Recovery Event, the earlier of the dates referred to in clauses (a) and (b) below occurring after the receipt of Net Sale Proceeds or Net Insurance Proceeds by Parent or any of its Restricted Subsidiaries, as the case may be, from such Asset Sale or Recovery Event: (a) (x) 12 months following the receipt of such Net Sale Proceeds or Net Insurance Proceeds, as the case may be or (y) if Parent or any of its Restricted Subsidiaries have contractually committed to reinvest such Net Sale Proceeds or Net Insurance Proceeds, as the case may be, within 12 months of the date of receipt of such Net Sale Proceeds or Net Insurance Proceeds, as the case may be, 18 months following the receipt of such Net Sale Proceeds or Net Insurance Proceeds, as the case may be, and (b) the date upon which Parent or the relevant Restricted Subsidiary formally determines not to reinvest the Net Sale Proceeds or Net Insurance Proceeds, as the case may be, from the respective Asset Sale or Recovery Event, as the case may be.

“Replaced Lender” shall have the meaning provided in Section 2.13(a).

“Replacement Lender” shall have the meaning provided in Section 2.13(a).

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“Reportable Event” shall mean an event described in Section 4043(c) of ERISA with respect to a Plan that is subject to Title IV of ERISA other than those events as to which the 30-day notice period under Section 4043 of ERISA or the PBGC Regulations thereunder is waived.

“Repricing Transaction” shall mean (x) any prepayment of Effective Date Loans under this Agreement with the proceeds of any secured term loan Indebtedness (including, without limitation, any new or additional secured term loans under this Agreement) having an Effective Yield that is less than the Effective Yield for the Effective Date Loans or (y) any effective reduction in the Effective Yield for the Effective Date Loans by way of amendment or waiver to this Agreement; provided that “Repricing Transaction” shall not include any prepayment, refinancing or repricing of the Loans in connection with a transaction constituting a Change of Control or the incurrence of any Indebtedness the proceeds of which are used to finance an acquisition or merger (including the repayment of Indebtedness (including the Loans) and the payment of fees, expenses and other payments related thereto) involving aggregate consideration of at least $100,000,000.

“Required Lenders” shall mean, at any time, Non-Defaulting Lenders (other than Affiliated Non-Debt Fund Lenders) the sum of whose outstanding Loans at such time represents at least a majority of the sum of all outstanding Loans of Non-Defaulting Lenders that are not Affiliated Non-Debt Fund Lenders at such time.

“Restated Intercreditor Agreement” shall mean the form of “first-lien, second-lien and ABL” intercreditor agreement attached hereto as Exhibit K-3.

“Restricted Subsidiary” of any Person shall mean any Subsidiary of such Person that is not an Unrestricted Subsidiary. Unless otherwise specified, as used herein, the term “Restricted Subsidiary” shall refer to a Restricted Subsidiary of the Parent.

“Returns” shall have the meaning provided in Section 7.09.

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

“Sale/Leaseback Transaction” shall mean an arrangement relating to property now owned or hereafter acquired by Parent or a Restricted Subsidiary thereof whereby Parent or such Restricted Subsidiary transfers such property to a Person and Parent or such Restricted Subsidiary leases it from such Person, other than leases between Parent or a Restricted Subsidiary or between Restricted Subsidiaries.

“Scheduled Initial Repayment” shall have the meaning provided in Section 4.02(a).

“Scheduled Initial Repayment Date” shall have the meaning provided in Section 4.02(a).

“SEC” shall mean the Securities and Exchange Commission or any successor thereto.

“Second Lien Intercreditor Agreement” shall mean any intercreditor agreement between or among lenders (or the representative agents for such lenders) providing Junior Financing to any Loan Party, made in accordance with the provisions of the applicable Junior Financing Documentation and the Intercreditor Agreement, as amended, supplemented, waived or otherwise modified from time to time.

“Secured Creditors” shall mean collectively, the Administrative Agent, the Security Agent, the Lenders and each Hedging Creditor.

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“Secured Hedging Agreements” shall mean each Interest Rate Protection Agreement and/or Other Hedging Agreement entered into by a Credit Party with any Lender Counterparty; provided that (i) such Interest Rate Protection Agreement and/or Other Hedging Agreement expressly states that (x) it constitutes a “Secured Hedging Agreement” for purposes of this Agreement and the other Credit Documents and (y) does not constitute a “Bank Product Agreement” for purposes of the ABL Loan Documents or any guaranties relating to the ABL Credit Agreement, and (ii) the Borrower and the other parties thereto shall have delivered to the Security Agent a written notice specifying that such Interest Rate Protection Agreement and/or Other Hedging Agreement (x) constitutes a “Secured Hedging Agreement” for purposes of this Agreement and the other Credit Documents, (y) does not constitute a “Bank Product Agreement” for purposes of the ABL Loan Documents or any guaranties relating to the ABL Credit Agreement and (z) in the case of the Borrower, that such Interest Rate Protection Agreement and/or Other Hedging Agreement and the obligations of Credit Parties thereunder have been, and will be, incurred in compliance with this Agreement.

“Secured Obligations” shall mean all (x) amounts owing to the Administrative Agent, the Security Agent or any Lender pursuant to the terms of this Agreement or any other Credit Document and (y) obligations of any Credit Party arising under any Secured Hedging Agreement, including, in each of clauses (x) and (y), without limitation, all amounts in respect of any principal, interest (including any interest accruing following maturity of the Loans and interest accruing subsequent to the filing of a petition in bankruptcy, reorganization or similar proceeding at the rate provided for in this Agreement, whether or not such interest is an allowed claim under any such proceeding or under applicable state, federal or foreign law), penalties, fees (including all legal fees and disbursements required to be paid by the Borrower and its Subsidiaries hereunder), expenses, indemnifications, reimbursements and other liabilities, and guarantees of the foregoing amounts; provided, however, that “Secured Obligations” shall not include any Excluded Swap Obligations.

“Securities Account” shall mean a securities account (as that term is defined in the UCC).

“Securities Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

“Security Agent” shall mean MSSF, in its capacity as Security Agent for the Lenders hereunder and under the other Credit Documents, and shall include any successor to the Security Agent appointed pursuant to Section 11.09.

“Security Agreement” shall have the meaning provided in Section 5.12.

“Security Agreement Collateral” shall mean all “Collateral” as defined in the Security Agreement.

“Security Document” shall mean and include each of the Security Agreement, each Control Agreement, the Copyright Security Agreement, the Patent Security Agreement, the Trademark Security Agreement, each Mortgage, after the execution and delivery thereof, each Additional Security Document and any other related document, agreement or grant pursuant to which any Credit Party grants, perfects or continues a security interest in favor of the Security Agent for the benefit of the Secured Creditors.

“Seller Debt” shall have the meaning provided in Section 9.04(n).

“Solvent”, with respect to any Person, means that as of the date of determination both (i)(a) the then fair saleable value of the property of such Person is (1) greater than the total amount of

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liabilities (including contingent liabilities) of such Person and (2) not less than the amount that will be required to pay the probable liabilities on such Person’s then existing debts as they become absolute and due considering all the financing alternatives and potential asset sales reasonably available to such Person; (b) such Person’s capital is not unreasonably small in relation to its business or any contemplated or undertaken transaction; and (c) such Person does not intend to incur, or believe (nor should it reasonably believe) that it will incur, debts beyond its ability to pay such debts as they become due; and (ii) such Person is “solvent” within the meaning given that term and similar terms under applicable laws relating to fraudulent transfers and conveyances.  For purposes of this definition, “debt” means any liability on a claim, and “claim” means (A) right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured or (B) right to an equitable remedy for breach of performance if such breach gives rise to a payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured or unsecured.  The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

“Specified Swap Obligation” shall mean, with respect to any Credit Party, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act or any rules or regulations promulgated thereunder.

“Specified Transaction” shall mean (i) any Investment that results in a Person becoming a Restricted Subsidiary, (ii) any Permitted Acquisition, (iii) Material Asset Sale, and (iv) any Investment in, acquisition of or disposition of assets constituting a business unit, line of business or division of, or all or substantially all of the assets of, another Person (in each case to the extent permitted hereunder).

“Sponsor” shall mean Oaktree Capital Management L.P. and investment funds managed thereby and their Affiliates.

“Sponsor Debt Fund” shall mean any Affiliate of the Sponsor (other than Parent and its Subsidiaries) that is an Eligible Transferee and invests in commercial bank loans in the ordinary course of business at the time of the relevant sale or assignment thereto pursuant to Section 12.04(d) and so long as the individuals who are employees, officers or directors of the Sponsor and who are responsible for the advisement or management of such Affiliate do not include any individuals who are responsible for the advisement or management of Parent and its Subsidiaries, and the individuals who are employees, officers or directors of Sponsor and who are responsible for the advisement or management of Parent and its Subsidiaries do not have the right to direct or influence the credit decisions of such Affiliate or directly or indirectly appoint (or have the right to appoint) any individual at such Affiliate with responsibility for reviewing or approving any decisions with respect to the transactions contemplated by any of the Credit Documents (including any amendments or waivers).

“Statutory Reserves” shall mean a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve percentages (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Board of Governors of the Federal Reserve System of the United States (the “Board”) and any other banking authority, domestic or foreign, to which the Administrative Agent or any Lender (including any branch, Affiliate or other fronting office making or holding a Loan) is subject for Eurocurrency Liabilities (as defined in Regulation D of the Board). Eurocurrency Rate Loans shall be deemed to constitute Eurocurrency Liabilities (as defined in Regulation D of the Board) and to be subject to such reserve requirements without benefit of or credit for proration,

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exemptions or offsets that may be available from time to time to any Lender under such Regulation D or any comparable regulation.  Statutory Reserves shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.

“Subordinated Indebtedness” shall mean, with respect to the Obligations, any Indebtedness of the Borrower or any Guarantor which is by its terms subordinated in right of payment to the Obligations (including, in the case of a Guarantor, Obligations of such Guarantor under its Guaranty).

“Subsidiary” shall mean, as to any Person, (a) any corporation more than 50% of whose stock of any class or classes having by the terms thereof ordinary voting power to elect a majority of the directors of such corporation (irrespective of whether or not at the time stock of any class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) is at the time owned by such Person and/or one or more Subsidiaries of such Person or (b) any partnership, limited liability company, association, joint venture or other entity in which such Person and/or one or more Subsidiaries of such Person has more than a 50% equity interest at the time.  Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiary or Subsidiaries of Holdings.

“Subsidiary Guarantor” shall mean each Wholly-Owned Domestic Subsidiary of Parent (other than Holdings, the Borrower or any Excluded Subsidiary (unless such Subsidiary is party to the Guaranty)), whether existing on the Effective Date or established, created or acquired after the Effective Date, unless and until such time as the respective Domestic Subsidiary is released from all of its obligations under the Guaranty in accordance with the terms and provisions thereof.

“Successor Company” shall have the meaning provided in Section 9.02(a).

“Syndication Agent” shall mean Deutsche Bank Securities Inc.

“Tax Receivable Agreement” shall mean an agreement to be dated on or about the date of the IPO between Parent (or its direct or indirect parent) and a representative of pre-initial public offering holders of Equity Interests of Parent (or its direct or indirect parent), relating to payment by Parent to such holders of Equity Interests of tax benefits relating to net operating losses, tax basis and other tax attributes attributable to periods prior to the IPO, and having terms and conditions that are either (i) not materially less favorable to the Credit Parties than those set forth in the draft tax receivable agreement disclosed to the Administrative Agent prior to the Effective Date or (ii) not materially less favorable to the Credit Parties than those commonly found in tax receivable agreements for similarly-situated taxpayers that have been publicly filed with the SEC.

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

“Term Lender” shall mean, at any time, any Lender that has a Commitment or a Loan at such time.

“Term Loan Priority Collateral” shall have the meaning provided in the Intercreditor Agreement.

“Total Commitment” shall mean, at any time, the sum of the Commitments of each of the Lenders at such time.

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“Total Net Leverage Ratio” shall mean, on any date of determination, the ratio of (a) Consolidated Indebtedness on such date (net of the Unrestricted Cash Amount as of such date) to (b) Consolidated EBITDA for the Calculation Period most recently ended on or prior to such date; provided that (i) for purposes of any calculation of the Total Net Leverage Ratio pursuant to this Agreement, Consolidated EBITDA and Consolidated Indebtedness shall be determined on a Pro Forma Basis in accordance with the definition of “Pro Forma Basis” and (ii) notwithstanding the foregoing, for purposes of Section 4.02(f), Consolidated EBITDA shall be determined for the Calculation Period ending as of the last day of the applicable Excess Cash Payment Period.

“Total Secured Net Leverage Ratio” shall mean, on any date of determination, the ratio of (a) Consolidated Total Secured Indebtedness as of such date (calculated net of the Unrestricted Cash Amount as of such date) to (b) Consolidated EBITDA for the Calculation Period most recently ended on or prior to such date; provided that for purposes of any calculation of the Total Secured Net Leverage Ratio pursuant to this Agreement, Consolidated EBITDA and Consolidated Total Secured Indebtedness shall be determined on a Pro Forma Basis in accordance with the definition of “Pro Forma Basis”.

“Trademark Security Agreement” has the meaning specified in the Security Agreement.

“Transaction” shall mean, collectively, (a) the consummation of the Refinancing, (b) the execution, delivery and performance by each Credit Party of the Credit Documents to which it is a party, the incurrence of Loans on the Effective Date and the use of proceeds thereof, (c) the execution, delivery and performance by each Credit Party of the Effective Date ABL Amendment, the incurrence of ABL Loans on the Effective Date, if any, and the use of proceeds thereof, and (d) the payment of all fees and expenses in connection with the foregoing.

“Type” shall mean the type of Loan determined with regard to the interest option applicable thereto, i.e., whether a Base Rate Loan or a LIBOR Loan.

“UCC” shall mean the Uniform Commercial Code as from time to time in effect in the relevant jurisdiction.

“Unfunded Current Liability” of any Plan shall mean the amount, if any, by which the value of the accumulated plan benefits under such Plan determined on a plan termination basis in accordance with actuarial assumptions at such time consistent with those prescribed by the PBGC for purposes of Section 4044 of ERISA, exceeds the Fair Market Value of all plan assets allocable to such liabilities under Title IV of ERISA (excluding any accrued but unpaid contributions).

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

“Unrestricted” shall mean, when referring to cash or Cash Equivalents of Parent or any of its Restricted Subsidiaries, that such cash or Cash Equivalents (i) does not appear (and is not required to appear) as “restricted” on a consolidated balance sheet of Parent or of any such Subsidiary (unless such appearance is related to the Credit Documents (or Liens created thereunder) or the ABL Loan Documents (or Liens created thereunder)), and (ii) are not subject to any Lien in favor of any Person (other than (x) the Security Agent or the ABL Agent pursuant to the Security Documents or the ABL Loan Documents, as the case may be, (y) Liens permitted by Section 9.01(p) and (z) Liens securing Consolidated Indebtedness which Liens are pari passu or junior to Liens securing the Credit Documents).

“Unrestricted Cash Amount” shall mean, as of any date of determination, the aggregate amount of Unrestricted cash and Cash Equivalents of Parent and its Restricted Subsidiaries.

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“Unrestricted Subsidiary” shall mean (a) any Subsidiary of Parent (including any Subsidiary of Parent that is acquired or formed after the Effective Date), provided that the Borrower designates such Subsidiary an Unrestricted Subsidiary in a written notice to the Administrative Agent; provided that (w) such designation as an Unrestricted Subsidiary shall be deemed to be an Investment (or reduction in an outstanding Investment, in the case of a designation of an Unrestricted Subsidiary as a Restricted Subsidiary), on the date of such designation in an amount equal to the sum of (i) Parent’s direct or indirect equity ownership percentage of the net worth of such designated Subsidiary immediately prior to such designation (such net worth to be calculated without regard to any guarantee of Indebtedness of Parent or its Restricted Subsidiaries provided by such designated Subsidiary) and (ii) without duplication, the aggregate principal amount of any Indebtedness owed by such designated Subsidiary to Parent or any other Restricted Subsidiary immediately after such designation, all calculated, except as set forth in the parenthetical to clause (i), on a consolidated basis in accordance with GAAP, (x) both immediately before and immediately after giving pro forma effect thereto, no Event of Default is continuing or would result from such designation, (y) no Subsidiary may be designated an Unrestricted Subsidiary to the extent such Subsidiary or any of its Subsidiaries is a restricted subsidiary for purposes of the ABL Credit Agreement and (z) the Total Net Leverage Ratio, calculated as of the date of designation on a Pro Forma Basis, does not exceed 4.70:1.00, and (b) each Subsidiary of an Unrestricted Subsidiary. The Borrower may, by written notice to the Administrative Agent, re-designate any Unrestricted Subsidiary as a Restricted Subsidiary, and thereafter, such Subsidiary shall no longer constitute an Unrestricted Subsidiary, but only if at the time of any such re-designation the Borrower is in compliance with clauses (x) and (z) of the preceding sentence.

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

“U.S. Tax Compliance Certificate” shall have the meaning provided to such term in Section 4.04(f)(ii)(B).

“Voidable Transfer” shall have the meaning provided in Section 12.22.

“Voluntary Prepayment” shall have the meaning provided in Section 9.10(a).

“Weighted Average Life to Maturity” shall mean, when applied to any Indebtedness at any date, the quotient obtained by dividing (a) the sum of the products of the number of years from the date of determination to the date of each successive scheduled principal payment of such Indebtedness; by (b) the sum of all such payments.

“Wholly-Owned Domestic Subsidiary” shall mean, as to any Person, any Domestic Subsidiary of such Person that is a Wholly-Owned Subsidiary.

“Wholly-Owned Subsidiary” shall mean, as to any Person, (a) any corporation 100% of whose capital stock is at the time owned by such Person and/or one or more Wholly-Owned Subsidiaries of such Person and (b) any partnership, limited liability company, association, joint venture or other entity in which such Person and/or one or more Wholly-Owned Subsidiaries of such Person has a 100% equity interest at such time (other than, in the case of a Foreign Subsidiary of Parent with respect to the preceding clauses (a) and (b), directors’ qualifying shares and/or other nominal amounts of shares required to be held by Persons other than Parent and its Subsidiaries under applicable law).

“Wholly-Owned Subsidiary Guarantor” shall mean, any Wholly-Owned Subsidiary of Parent which is a Subsidiary Guarantor.

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“Withholding Agent” shall mean the Credit Parties and the Administrative Agent.

“Write-down and Conversion Powers” shall mean, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.

“Yield Differential” shall have the meaning provided in Section 2.14(a).

1.02Other Definitional Provisions.  (a) Unless otherwise specified therein, all terms defined in this Agreement shall have the defined meanings when used in the other Credit Documents or any certificate or other document made or delivered pursuant hereto or thereto.

(b)As used herein and in the other Credit Documents, and any certificate or other document made or delivered pursuant hereto or thereto, (i) accounting terms not defined in Section 1.01 shall have the respective meanings given to them under GAAP, (ii) the words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”, (iii) the word “incur” shall be construed to mean incur, create, issue, assume, become liable in respect of or suffer to exist (and the words “incurred” and “incurrence” shall have correlative meanings), (iv) unless the context otherwise requires, the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, Equity Interests, securities, accounts, leasehold interests and contract rights, (v) the word “will” shall be construed to have the same meaning and effect as the word “shall”, (vi) unless the context otherwise requires, any reference herein (A) to any Person shall be construed to include such Person’s successors and assigns and (B) to the Borrower or any other Credit Party shall be construed to include the Borrower or such Credit Party as debtor and debtor-in-possession and any receiver or trustee for the Borrower or any other Credit Party, as the case may be, in any insolvency or liquidation proceeding, and (vii) references to agreements (including this Agreement) or other contractual obligations shall, unless otherwise specified, be deemed to refer to such agreements or obligations as amended, supplemented, restated, amended and restated or otherwise modified from time to time.  For the avoidance of doubt, it is acknowledged and agreed that references to or requirements to enter into any Other Intercreditor Agreement shall only be applicable to the extent there are multiple classes of Indebtedness (issued under multiple debt instruments) secured by the Collateral on a pari passu basis.

(c)The words “hereof”, “herein” and “hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section, Schedule and Exhibit references are to this Agreement unless otherwise specified.

(d)The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.

1.03Limited Condition Acquisition.  Notwithstanding anything to the contrary in this Agreement, for purposes of (i) determining compliance with any provision of this Agreement that requires the calculation of the Interest Coverage Ratio, First Lien Net Leverage Ratio, Total Secured Net Leverage Ratio or the Total Net Leverage Ratio, (ii) determining compliance with representations, warranties, defaults or events of default or (iii) testing availability under baskets set forth herein (including baskets measured as a percentage of Consolidated EBITDA) (including, in each case with respect to the incurrence of debt under an Incremental Facility incurred in connection therewith), in each case, in connection with a Permitted Acquisition or other Investment by one or more of Parent and its Restricted Subsidiaries, in each case whose consummation is not conditioned on the availability of, or on

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obtaining, third-party financing (any such acquisition, a “Limited Condition Acquisition”), at the option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Acquisition, an “LCA Election”), the date of determination of whether any such Limited Condition Acquisition is permitted hereunder shall be deemed to be the date the definitive agreement for such Limited Condition Acquisition is entered into (the “LCA Test Date”), and if, after giving pro forma effect to the Limited Condition Acquisition and the other transactions to be entered into in connection therewith as if they had occurred at the beginning of the most recent Calculation Period ending prior to the LCA Test Date, Parent or its applicable Restricted Subsidiary could have taken such action on the relevant LCA Test Date in compliance with such ratio or basket, such ratio or basket shall be deemed to have been complied with for such Limited Condition Acquisition.

For the avoidance of doubt, if the Borrower has made an LCA Election and any of the ratios or baskets for which compliance was determined or tested as of the LCA Test Date (including with respect to the incurrence of any Indebtedness) are exceeded as a result of fluctuations in any such ratio or basket (including due to fluctuations of the target of any Limited Condition Acquisition) at or prior to the consummation of the relevant transaction or action, such baskets or ratios will not be deemed to have been exceeded as a result of such fluctuations.  If the Borrower has made an LCA Election for any Limited Condition Acquisition, then in connection with any subsequent calculation of any ratio or basket on or following the relevant LCA Test Date and prior to the earlier of (i) the date on which such Limited Condition Acquisition is consummated or (ii) the date that the definitive agreement for such Limited Condition Acquisition is terminated or expires without consummation of such Limited Condition Acquisition, any such ratio or basket shall be calculated on a Pro Forma Basis assuming such Limited Condition Acquisition and other transactions in connection therewith (including any incurrence of debt and the use of proceeds thereof) have been consummated.

Notwithstanding anything to the contrary herein, with respect to any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement that does not require compliance with a financial ratio or test (any such amounts, the “Fixed Amounts”) substantially concurrently with any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement that requires compliance with any such financial ratio or test (any such amounts, the “Incurrence Based Amounts”), it is understood and agreed that the Fixed Amounts shall be disregarded in the calculation of the financial ratio or test applicable to the Incurrence-Based Amounts in connection with such substantially concurrent incurrence.

SECTION 2.Amount and Terms of Credit.

2.01The Commitments.  Subject to and upon the terms and conditions set forth herein, each Lender with an Initial Loan Commitment severally agrees to make a term loan (each, an “Effective Date Loan” and, collectively, the “Effective Date Loans”) to the Borrower, which Loans (i) shall be incurred pursuant to a single drawing on the Effective Date, (ii) shall be denominated in Dollars, (iii) except as hereinafter provided, shall, at the option of the Borrower, be incurred and maintained as, and/or converted into, Base Rate Loans or LIBOR Loans, provided that except as otherwise specifically provided in Section 2.10(b), all Loans comprising the same Borrowing shall at all times be of the same Type, and (iv) shall be made by each such Lender in that aggregate principal amount which does not exceed the Initial Loan Commitment of such Lender on the Effective Date.  Once repaid, Loans incurred hereunder may not be reborrowed.

2.02Minimum Amount of Each Borrowing.  The aggregate principal amount of each Borrowing of Loans under a respective Class shall not be less than the Minimum Borrowing Amount.  More than one Borrowing may occur on the same date, but at no time shall there be outstanding more

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than eight Borrowings of LIBOR Loans in the aggregate for all Classes of Loans (or such greater number of Borrowings of LIBOR Loans as may be agreed to from time to time by the Administrative Agent).

2.03Notice of Borrowing.  (a) When the Borrower desires to incur the Loans hereunder, the Borrower shall give the Administrative Agent at the Notice Office (i) at least one Business Day’s prior notice thereof in the case of LIBOR Loans and (ii) at least one Business Day’s prior notice thereof in the case of Base Rate Loans; provided that (in each case) any such notice shall be deemed to have been given on a certain day only if given before 1:00 P.M. (New York City time) on such day.  Such notice (the “Notice of Borrowing”), except as otherwise expressly provided in Section 2.10, shall be irrevocable and shall be in writing, or by telephone promptly confirmed in writing, in the form of Exhibit A-1, appropriately completed to specify: (A) the aggregate principal amount of the Loans to be incurred pursuant to such Borrowing, (B) the date of such Borrowing (which shall be a Business Day) and (C) whether the Loans being incurred pursuant to such Borrowing are to be initially maintained as Base Rate Loans or, to the extent permitted hereunder, LIBOR Loans and, if LIBOR Loans, the initial Interest Period to be applicable thereto.  The Administrative Agent shall promptly give each Lender notice of such proposed Borrowing, of such Lender’s proportionate share thereof and of the other matters required by the immediately preceding sentence to be specified in the Notice of Borrowing.

(b)Without in any way limiting the obligation of the Borrower to confirm in writing any telephonic notice of any Borrowing or prepayment of Loans, the Administrative Agent may act without liability upon the basis of telephonic notice of such Borrowing or prepayment, as the case may be, believed by the Administrative Agent in good faith to be from an Authorized Officer of the Borrower, prior to receipt of written confirmation.  In each such case, the Borrower hereby waives the right to dispute the Administrative Agent’s record of the terms of such telephonic notice of the Borrowing or prepayment of Loans, as the case may be, absent manifest error.

2.04Disbursement of Funds.  No later than 1:00 P.M. (New York City time) on the date specified in each Notice of Borrowing, each Lender will make available its pro rata portion (determined in accordance with Section 2.07) of the Borrowing requested to be made on such date.  All such amounts will be made available in Dollars and in immediately available funds at the Payment Office, and the Administrative Agent will make available to the Borrower at the Payment Office, or to such other account or accounts as the Borrower may specify in writing to the Administrative Agent, the aggregate of the amounts so made available by the Lenders.  Unless the Administrative Agent shall have been notified by any Lender prior to the date of any such Borrowing that such Lender does not intend to make available to the Administrative Agent such Lender’s portion of the Borrowing to be made on such date, the Administrative Agent may assume that such Lender has made such amount available to the Administrative Agent on the date of any such Borrowing and the Administrative Agent may (but shall not be obligated to), in reliance upon such assumption, make available to the Borrower a corresponding amount.  If such corresponding amount is not in fact made available to the Administrative Agent by such Lender, the Administrative Agent shall be entitled to recover such corresponding amount on demand from such Lender.  If such Lender does not pay such corresponding amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent shall promptly notify the Borrower, and the Borrower shall repay such corresponding amount to the Administrative Agent within three Business Days.  The Administrative Agent also shall be entitled to recover on demand from such Lender or the Borrower, as the case may be, interest on such corresponding amount in respect of each day from the date such corresponding amount was made available by the Administrative Agent to the Borrower until the date such corresponding amount is recovered by the Administrative Agent, at a rate per annum equal to (i) if recovered from such Lender, the overnight Federal Funds Effective Rate for the first three days and at the interest rate otherwise applicable to such Loans for each day thereafter and (ii) if recovered from the Borrower, the rate of interest applicable to the respective Borrowing, as determined pursuant to Section 2.08.  Nothing in this Section 2.04 shall be deemed to relieve any Lender from its obligation to make

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Loans hereunder or to prejudice any rights which the Borrower may have against any Lender as a result of any failure by such Lender to make Loans hereunder.

2.05Notes.  (a) The Borrower’s obligation to pay the principal of, and interest on, the Loans made by each Lender shall be evidenced in the Register maintained by the Administrative Agent pursuant to Section 12.15 and shall, if requested by such Lender, also be evidenced by a promissory note duly executed and delivered by the Borrower substantially in the form of Exhibit B, with blanks appropriately completed in conformity herewith (each, a “Note” and, collectively, the “Notes”).

(b)Each Lender will note on its internal records the amount of each Loan made by it and each payment in respect thereof and prior to any transfer of any of its Notes will endorse on the reverse side thereof the outstanding principal amount of Loans evidenced thereby.  Failure to make any such notation or any error in such notation shall not affect the Borrower’s obligations in respect of such Loans.

(c)Notwithstanding anything to the contrary contained above in this Section 2.05 or elsewhere in this Agreement, Notes shall only be delivered to Lenders which at any time specifically request the delivery of such Notes.  No failure of any Lender to request, obtain, maintain or produce a Note evidencing its Loans to the Borrower shall affect, or in any manner impair, the obligations of the Borrower to repay the Loans (and all related Obligations) incurred by the Borrower which would otherwise be evidenced thereby in accordance with the requirements of this Agreement, and shall not in any way affect the security or guaranties therefor provided pursuant to any Credit Document.  At any time when any Lender requests the delivery of a Note to evidence any of its Loans, the Borrower shall reasonably promptly execute and deliver to the respective Lender the requested Note in the appropriate amount or amounts to evidence such Loans.

2.06Conversions and Continuations.  The Borrower shall have the option, on any Business Day, to convert all or a portion equal to at least the Minimum Borrowing Amount of the outstanding principal amount of Loans made pursuant to one or more Borrowings of one or more Types of Loans into a Borrowing of another Type of Loan or to continue all or any portion equal to at least the Minimum Borrowing Amount of any outstanding LIBOR Loans as the same Type of Loan; provided that, (a) except as otherwise provided in Section 2.10(b), LIBOR Loans may be converted into Base Rate Loans only on the last day of an Interest Period applicable to the Loans being converted and no such partial conversion of LIBOR Loans shall reduce the outstanding principal amount of such LIBOR Loans made pursuant to a single Borrowing to less than the Minimum Borrowing Amount applicable thereto, (b) Base Rate Loans may not be converted into LIBOR Loans and LIBOR Loans may not be continued as such if an Event of Default has occurred and is continuing on the date of the conversion or continuation, as applicable, and the Administrative Agent has or the Required Lenders have determined in its or their sole discretion not to permit such conversion or continuation, and (c) no conversion or continuation pursuant to this Section 2.06 shall result in a greater number of Borrowings of LIBOR Loans than is permitted under Section 2.02.  Each such conversion or continuation shall be effected by the Borrower by giving the Administrative Agent at the Notice Office prior to 1:00 P.M. (New York City time) at least (i) in the case of conversions of Base Rate Loans into LIBOR Loans or continuations of LIBOR Loans, three Business Days’ prior notice and (ii) in the case of conversions of LIBOR Loans into Base Rate Loans, one Business Day’s prior notice (each, a “Notice of Conversion/Continuation”), in each case in the form of Exhibit A-2, appropriately completed to specify the Loans to be so converted or continued, the Borrowing or Borrowings pursuant to which such Loans were incurred and, if to be converted into LIBOR Loans or continued as such, the Interest Period to be initially applicable thereto after giving effect to such election.  The Administrative Agent shall give each Lender prompt notice of any such proposed conversion or continuation affecting any of its Loans.

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2.07Pro Rata Borrowings.  All Borrowings of Loans under this Agreement shall be incurred from the Lenders pro rata on the basis of their Commitments in respect of the applicable Class.  It is understood that no Lender shall be responsible for any default by any other Lender of its obligation to make Loans hereunder and that each Lender shall be obligated to make the Loans provided to be made by it hereunder, regardless of the failure of any other Lender to make its Loans hereunder.

2.08Interest.  (a) The Borrower agrees to pay interest in respect of the unpaid principal amount of each Base Rate Loan from the date of Borrowing thereof until the earlier of (i) the maturity thereof (whether by acceleration or otherwise) and (ii) the conversion of such Base Rate Loan to a LIBOR Loan pursuant to Section 2.06 or 2.09, as applicable, at a rate per annum which shall be equal to the sum of the relevant Applicable Margin plus the Base Rate, each as in effect from time to time.

(b)The Borrower agrees to pay interest in respect of the unpaid principal amount of each LIBOR Loan from the date of Borrowing thereof until the earlier of (i) the maturity thereof (whether by acceleration or otherwise) and (ii) the conversion of such LIBOR Loan to a Base Rate Loan pursuant to Section 2.06, 2.09 or 2.10, as applicable, at a rate per annum which shall, during each Interest Period applicable thereto, be equal to the sum of the relevant Applicable Margin as in effect from time to time during such Interest Period plus the LIBO Rate.

(c)Overdue amounts (i) of principal and interest on any Loan shall bear interest (including post-petition interest in any proceeding under the Bankruptcy Code or other applicable bankruptcy laws), to the extent permitted by law, at a rate per annum equal to the rate which is 2% in excess of the rate then borne by such Loan, in the case of principal, and, in the case of interest, the rate then borne by the applicable Loan to which such interest relates and (ii) constituting other amounts payable hereunder and under any other Credit Document shall bear interest at a rate per annum equal to the rate which is 2% in excess of the rate applicable to Base Rate Loans from time to time.  Interest that accrues under this Section 2.08(c) shall be payable on demand.

(d)Accrued (and theretofore unpaid) interest shall be payable (i) in respect of each Base Rate Loan, (A) quarterly in arrears on each Quarterly Payment Date, (B) on the date of any repayment or prepayment in full of all outstanding Base Rate Loans, and (C) at maturity (whether by acceleration or otherwise) and, after such maturity, on demand, and (ii) in respect of each LIBOR Loan, (A) on the last day of each Interest Period applicable thereto and, in the case of an Interest Period in excess of three months, on each date occurring at three month intervals after the first day of such Interest Period, and (B) on the date of any repayment or prepayment (on the amount repaid or prepaid), at maturity (whether by acceleration or otherwise) and, after such maturity, on demand.

(e)Upon each Interest Determination Date, the Administrative Agent shall determine the LIBO Rate for each Interest Period applicable to the respective LIBOR Loans and shall promptly notify the Borrower and the Lenders thereof.  Each such determination shall, absent manifest error, be final and conclusive and binding on all parties hereto.

2.09Interest Periods.  At the time the Borrower gives the Notice of Borrowing or any Notice of Conversion/Continuation in respect of the making of, or conversion into, any LIBOR Loan (in the case of the initial Interest Period applicable thereto) or prior to 1:00 P.M. (New York City time) on the third Business Day prior to the expiration of an Interest Period applicable to such LIBOR Loan (in the case of any subsequent Interest Period), the Borrower shall have the right to elect the interest period (each, an “Interest Period”) applicable to such LIBOR Loan, which Interest Period shall, at the option of the Borrower, be (x) a one, two, three or six month period, or to the extent agreed to by all Lenders with Loans under the relevant Class, a twelve month period or (y) if agreed by each Lender with Loans under the relevant Class, such other period not to exceed one-month; provided that (in each case):

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(a)[Reserved];

(b)the initial Interest Period for any LIBOR Loan shall commence on the date of Borrowing of such LIBOR Loan (including the date of any conversion thereto from a Base Rate Loan) and each Interest Period occurring thereafter in respect of such LIBOR Loan shall commence on the day on which the next preceding Interest Period applicable thereto expires;

(c)if any Interest Period for a LIBOR Loan begins on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period, such Interest Period shall end on the last Business Day of such calendar month;

(d)if any Interest Period for a LIBOR Loan would otherwise expire on a day which is not a Business Day, such Interest Period shall expire on the next succeeding Business Day; provided, however, that if any Interest Period for a LIBOR Loan would otherwise expire on a day which is not a Business Day but is a day of the month after which no further Business Day occurs in such month, such Interest Period shall expire on the next preceding Business Day;

(e)no Interest Period may be selected at any time when an Event of Default has occurred and is continuing and the Administrative Agent has or the Required Lenders have determined in its or their sole discretion not to permit conversion to a LIBOR Loan or a continuation as a LIBOR Loan; and

(f)no Interest Period in respect of any Borrowing of any Class of Loans shall be selected which extends beyond the Maturity Date for such Class of Loans.

If by 11:00 A.M. (New York City time) on the third Business Day prior to the expiration of any Interest Period applicable to a Borrowing of LIBOR Loans, the Borrower has failed to elect a new Interest Period to be applicable to such LIBOR Loans as provided above, the Borrower shall be deemed to have elected to convert or continue, as applicable, such LIBOR Loans as LIBOR Loans with an Interest Period of one month. If any Event of Default is in existence at the time of any proposed continuation of any LIBOR Loans and the Administrative Agent has or the Required Lenders have determined in its or their sole discretion not to permit such continuation, such LIBOR Loans shall be automatically converted on the last day of the current Interest Period into Base Rate Loans.

2.10Increased Costs, Illegality, etc.  (a) In the event that any Lender shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):

(i)on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the London interbank market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBO Rate; or

(ii)at any time, that such Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any LIBOR Loan because of any change since the Effective Date (or the date such Lender became a Lender hereunder, if later) in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, but not limited to: (1) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation

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of the LIBO Rate, or (2) any change subjecting any Recipient to any Taxes (except for Excluded Taxes and any Indemnified Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or

(iii)at any time, that the making or continuance of any LIBOR Loan has been made (A) unlawful by any law or governmental rule, regulation or order, (B) impossible by compliance by any Lender in good faith with any request from a Governmental Authority (whether or not having force of law) or (C) impracticable as a result of a contingency, other than with respect to a tax matter not otherwise provided for in this Section 2.10, occurring after the Effective Date or since the date such Person becomes a Lender, if later, which materially and adversely affects the London interbank market generally;

then, and in any such event, such Lender (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone promptly confirmed in writing) to the Borrower and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders).  Thereafter (x) in the case of clause (i) above, LIBOR Loans shall not be available until such time as the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and the Notice of Borrowing or any Notice of Conversion/Continuation given by the Borrower with respect to LIBOR Loans which have not yet been incurred (including by way of conversion) shall be deemed rescinded by the Borrower, (y) in the case of clause (ii) above, the Borrower agrees to pay to such Lender, within 10 Business Days after written demand by such Lender setting forth in reasonable detail such increased cost or reduction, such additional amounts as will compensate such Lender for such increased cost or reduction in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Lender, showing in reasonable detail the basis for the calculation thereof, and stating that such Lender is charging such costs to its borrowers generally pursuant to its internal policies submitted to the Borrower by such Lender shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the Borrower shall take one of the actions specified in Section 2.10(b) as promptly as reasonably possible and, in any event, within the time period required by law.

(b)At any time that any LIBOR Loan is affected by the circumstances described in Section 2.10(a)(ii), the Borrower may, and in the case of a LIBOR Loan affected by the circumstances described in Section 2.10(a)(iii), the Borrower shall, either (i) if the affected LIBOR Loan is then being made initially or pursuant to a conversion, cancel such Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that the Borrower was notified by the affected Lender or the Administrative Agent pursuant to Section 2.10(a)(ii) or (iii) or (ii) if the affected LIBOR Loan is then outstanding, upon at least three Business Days’ written notice to the Administrative Agent, require the affected Lender to convert such LIBOR Loan into a Base Rate Loan; provided that, if more than one Lender is affected at any time, then all affected Lenders must be treated the same pursuant to this Section 2.10(b).

(c)If any Lender determines that after the Effective Date (or the date such Lender became a Lender hereunder, if later) the introduction of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy or liquidity requirements, or any change in interpretation or administration thereof by any Governmental Authority, central bank or comparable agency, will have the effect of increasing the amount of capital or liquidity required or expected to be maintained by such Lender or any corporation controlling such Lender based on the existence of such Lender’s Commitment hereunder or its obligations hereunder, then the Borrower agrees to pay to such Lender, within 10 Business Days after written demand by such Lender setting forth in reasonable detail such increased cost

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or reduction in the rate of return, such additional amounts as shall be required to compensate such Lender or such other corporation for the increased cost to such Lender or such other corporation or the reduction in the rate of return to such Lender or such other corporation as a result of such increase of capital or liquidity.  In determining such additional amounts, each Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable; provided that such Lender’s determination of compensation owing under this Section 2.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto.  Each Lender, upon determining that any additional amounts will be payable pursuant to this Section 2.10(c), will give prompt written notice thereof to the Borrower, which notice shall show in reasonable detail the basis for calculation of such additional amounts; provided, further, that, notwithstanding anything in this Agreement to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act, and all requests, rules, guidelines, requirements and directives thereunder, issued in connection therewith or in implementation thereof, and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III shall, in each case, be deemed to be a change after the Effective Date in a requirement of law or government rule, regulation or order, regardless of the date enacted, adopted, issued or implemented (including for purposes of this Section 2.10).

(d)Notwithstanding the foregoing, in making its determination regarding any increase described in Section 2.10(a)(ii) or Section 2.10(c), each Lender shall treat the Borrower the same as all similarly situated borrowers, as determined by such Lender in its reasonable discretion.  Each Lender agrees that it will not claim, and that it shall not be entitled to claim, from the Borrower the payment of any of the amounts referred to in this section (i) if it is not generally claiming similar compensation from its other similar customers in similar circumstances and (ii) unless the relevant introduction or change affects all banks and other financial institutions substantially similar to such Lender having regard to the size, business activities and regulatory capital of such banks and other financial institutions, but excluding differences based solely on the residency of Persons controlling such banks or other financial institutions.

(e)It is understood that this Section 2.10 shall not apply to Excluded Taxes or Indemnified Taxes.

(f)With respect to any Lender’s claim for compensation under this Section 2.10, the Borrower shall not be required to compensate such Lender for any amount incurred if such Lender notifies the Borrower of the event that gives rise to such claim more than 180 days after such event; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof.

2.11Compensation.  The Borrower agrees to compensate each Lender, upon its written request (which request shall set forth in reasonable detail the basis for requesting such compensation), for all losses, expenses and liabilities (including, without limitation, any loss, expense or liability incurred by reason of the liquidation or reemployment of deposits or other funds required by such Lender to fund its LIBOR Loans but excluding loss of anticipated profits) which such Lender sustains: (a) if for any reason (other than a default by such Lender or the Administrative Agent) a Borrowing of, or conversion from or into, LIBOR Loans does not occur on a date specified therefor in the Notice of Borrowing or in a Notice of Conversion/Continuation (whether or not withdrawn by the Borrower or deemed withdrawn or rescinded pursuant to Section 2.10(a)); (b) if any prepayment or repayment (including any prepayment or repayment made pursuant to Section 4.01, Section 4.02 or as a result of an acceleration of the Loans pursuant to Section 10) or conversion of any of its LIBOR Loans occurs on a date which is not the last day of an Interest Period with respect thereto; (c) if any prepayment of any of its LIBOR Loans is not made on any date specified in a notice of prepayment given by the Borrower; or (d)

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as a consequence of (i) any other default by the Borrower to repay LIBOR Loans when required by the terms of this Agreement or any Note held by such Lender or (ii) any election made pursuant to Section 2.10(b).

2.12Change of Lending Office.  Each Lender agrees that on the occurrence of any event giving rise to the operation of Section 2.10(a)(ii) or (iii), Section 2.10(c) or Section 4.04 with respect to such Lender, it will, if requested by the Borrower, use reasonable efforts (subject to overall policy considerations of such Lender) to designate another lending office for any Loans affected by such event; provided that such designation is made on such terms that such Lender and its lending office suffer no economic, legal or regulatory disadvantage, with the object of avoiding the consequence of the event giving rise to the operation of such Section.  Nothing in this Section 2.12 shall affect or postpone any of the obligations of the Borrower or the right of any Lender provided in Sections 2.10 and 4.04.

2.13Replacement of Lenders.  (a) If any Lender becomes a Defaulting Lender, (b) upon the occurrence of any event giving rise to the operation of Section 2.10(a)(ii) or (iii), Section 2.10(c) or Section 4.04 with respect to any Lender which results in such Lender charging to the Borrower increased costs or (c) in the case of a refusal by a Lender to consent to a proposed change, waiver, discharge or termination with respect to this Agreement which expressly requires the consent of such Lender and which has been approved by the Required Lenders as (and to the extent) provided in Section 12.12(b), the Borrower shall have the right, in accordance with Section 12.04(b), to replace such Lender (the “Replaced Lender”) with one or more other Eligible Transferees, none of whom shall constitute a Defaulting Lender at the time of such replacement (collectively, the “Replacement Lender”) and each of which shall be reasonably acceptable to the Administrative Agent (to the extent such consent would be required under Section 12.04(b)); provided that:

(i)at the time of any replacement pursuant to this Section 2.13, the Replacement Lender shall enter into one or more Assignment and Assumption Agreements pursuant to Section 12.04(b) (and with all fees payable pursuant to said Section 12.04(b) to be paid by the Borrower) pursuant to which the Replacement Lender shall acquire all of the outstanding Loans of the Replaced Lender and, in connection therewith, shall pay to the Replaced Lender in respect thereof an amount equal to the sum of an amount equal to the principal of, and all accrued interest on, all outstanding Loans of the respective Replaced Lender; and

(ii)all obligations of the Borrower then owing to the Replaced Lender (other than those specifically described in clause (i) above in respect of which the assignment purchase price has been, or is concurrently being, paid, but including all amounts, if any, owing under Section 2.11 and 4.01(c)) shall be paid in full to such Replaced Lender concurrently with such replacement.

Upon receipt by the Replaced Lender of all amounts required to be paid to it pursuant to this Section 2.13, the Administrative Agent shall be entitled (but not obligated) and is hereby authorized to execute an Assignment and Assumption Agreement on behalf of such Replaced Lender, and any such Assignment and Assumption Agreement so executed by the Administrative Agent and the Replacement Lender shall be effective for purposes of this Section 2.13 and Section 12.04.  Upon the execution of the respective Assignment and Assumption Agreement, the payment of amounts referred to in clauses (i) and (ii) above, recordation of the assignment on the Register by the Administrative Agent pursuant to Section 12.15 and, if so requested by the Replacement Lender, delivery to the Replacement Lender of the appropriate Note or Notes executed by the Borrower, the Replacement Lender shall become a Lender hereunder and the Replaced Lender shall cease to constitute a Lender hereunder, except with respect to indemnification provisions under this Agreement (including, without limitation, Sections 2.10, 2.11, 4.04, 11.06, 12.01 and 12.06), which shall survive as to such Replaced Lender.

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2.14Incremental Credit Extensions.  (a) The Borrower may at any time or from time to time after the Effective Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request the establishment of one or more additional term loans, which may be of the same Class as any existing Loans or a separate Class of Loans (the “Incremental Loans”); provided that (i) (x) if the proceeds of such Indebtedness are being used to finance a Permitted Acquisition or other Investment permitted hereunder, no Event of Default under Section 10.01(a) or (e) shall have occurred and be continuing or would exist after giving effect to such Indebtedness, or (y) if otherwise, no Event of Default shall have occurred at the time of the incurrence of such Incremental Loans and be continuing or would result therefrom, (ii) no Lender shall be obligated to provide any Incremental Loans as a result of any such request by the Borrower, and until such time, if any, as such Lender has agreed in writing in its sole discretion to provide an Incremental Loan and executed and delivered to the Administrative Agent an Incremental Amendment as provided below in this Section 2.14, such Lender shall not be obligated to fund any Incremental Loans, and (iii) unless otherwise agreed by the Administrative Agent, each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $10,000,000 (provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence).  Notwithstanding anything to the contrary herein, the aggregate principal amount of the Incremental Loans shall not exceed the Maximum Incremental Facilities Amount.  Incremental Loans shall be secured by the Security Documents, and guaranteed under the Guaranty, on a pari passu basis with all other Obligations secured by the Security Documents and guaranteed under the Guaranty and shall be treated substantially the same as the existing Loans (in each case, including with respect to mandatory and voluntary prepayments); provided, however, that (i) the interest rate applicable to the Incremental Loans may differ from that applicable to the Effective Date Loans or any other tranche of Incremental Loans, but, if the Effective Yield applicable to a given tranche of Incremental Loans determined as of the initial funding date for such Incremental Loans exceeds the Effective Yield of any Effective Date Loans by more than 0.50% (the amount of such excess over 0.50% being the “Yield Differential”), the Applicable Margin for such Effective Date Loans shall automatically be increased by the Yield Differential effective upon the making of the applicable Incremental Loans, (ii) the final stated maturity date for a given tranche of Incremental Loans may be later than or the same as (but not sooner than) the Initial Maturity Date, (iii) the amortization requirements for a given tranche of Incremental Loans may differ, so long as the Weighted Average Life to Maturity of such Incremental Loans is no shorter than the remaining Weighted Average Life to Maturity applicable to the then outstanding Loans (except to the extent of nominal amortization for periods where amortization has been eliminated as a result of prepayment of the applicable Loans), (iv) except as otherwise required or as permitted in clauses (i) through (iii) above, the other terms of a given tranche of Incremental Loans shall be on terms and pursuant to documentation substantially identical to the terms applicable to the Effective Date Loans or shall be reasonably satisfactory to the Administrative Agent; provided that such terms may differ with respect to (x) covenants or other provisions applicable only to periods after the Latest Maturity Date as in effect immediately prior to the making of such Incremental Loans, (y) any financial maintenance covenant to the extent such covenant is also added for the benefit of the Lenders under any applicable existing Loans, which shall not require the consent of the Administrative Agent or any Lender, and (z) the Incremental Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Loans hereunder, as specified in the applicable Incremental Amendment, and (v) the proceeds of Incremental Loans may be utilized by Parent, Holdings, the Borrower or any of their respective Subsidiaries for general corporate purposes.

Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Loans.  Incremental Loans may be made by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”), provided that the Administrative Agent shall have consented to such Additional Lender’s making such Incremental Loans (to the extent such consent would

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be required under Section 12.04(b)) (such consent not to be unreasonably withheld or delayed).  Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Credit Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.  The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section (including, in the case of Incremental Loans structured as a separate Class, the incorporation of class voting rights that prevent Lenders from agreeing to modifications that would allocate (or reallocate) payments to the Lenders in a non-pro rata manner unless such modifications are agreed to by a majority of the Lenders holding the Loans whose payment rights are being modified).  The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Effective Date”) of such conditions as the parties thereto shall agree; provided that, with respect to any Incremental Loans the Net Cash Proceeds of which all or a portion thereof are to be used to fund a Permitted Acquisition or other Investment permitted hereunder notwithstanding anything to the contrary in this Agreement, if the Lenders providing such Incremental Loans so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.  No Lender shall be obligated to provide any Incremental Loans, unless it so agrees.

(b)This Section 2.14 shall supersede any provisions in Sections 6, 12.06 or 12.12 to the contrary.

2.15Loan Repurchases.  (a) Subject to the terms and conditions set forth or referred to below, (x) each of (i) Sponsor and the Advance Shareholders and any of their respective Affiliates (other than Parent, Holdings or any of its Subsidiaries) (each, an “Affiliated Lender”, and collectively, the “Affiliated Lenders”) and (ii) Parent, Holdings, the Borrower, and any Subsidiary of Parent (each, an “Affiliated Borrower Lender”, and collectively, the “Affiliated Borrower Lenders”, and together with the Affiliated Lenders, the “Affiliated Persons”) may from time to time, at its discretion, conduct modified Dutch auctions in order to purchase Loans (each, a “Dutch Auction Purchase Offer”), each such Dutch Auction Purchase Offer to be managed by MSSF or another financial institution or advisor selected by the Borrower (in such capacity, the “Auction Manager”), and (y) each Affiliated Person may from time to time purchase Loans on the open market (each, an “Open Market Purchase Offer” and together with a Dutch Auction Purchase Offer, the “Purchase Offers”), so long as in each case the following conditions (to the extent applicable) are satisfied:

(i)each Dutch Auction Purchase Offer shall be conducted in accordance with the procedures, terms and conditions set forth in this Section 2.15 and the Auction Procedures;

(ii)in the case of any Dutch Auction Purchase Offer or Open Market Purchase Offer by any Affiliated Borrower Lender, no Event of Default shall have occurred and be continuing on the date of the delivery of each Auction Notice, as applicable, and at the time of purchase of any Loans in connection with any Dutch Auction Purchase Offer or Open Market Purchase Offer, as applicable;

(iii)each Dutch Auction Purchase Offer shall be open and offered to all Lenders (or all Lenders of a particular Class) on a pro rata basis;

(iv)the maximum principal amount (calculated on the face amount thereof) of Loans that the Affiliated Non-Debt Fund Lenders offer to purchase in any such Dutch

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Auction Purchase Offer shall be no less than $10,000,000 (unless another amount is agreed to by the Administrative Agent);

(v)the aggregate principal amount (calculated on the face amount thereof) of all Loans purchased by Parent, Holdings or the Borrower pursuant to a Purchase Offer shall automatically be cancelled and retired by Parent, Holdings or the Borrower, as applicable, on the settlement date of the relevant purchase (and may not be resold);

(vi)notwithstanding anything to the contrary contained in this Agreement, the Affiliated Non-Debt Fund Lenders shall not be permitted to hold an aggregate principal amount of outstanding Loans that represents more than 25% of the aggregate principal amount of all outstanding Loans, calculated as of the date of such purchase (excluding any amounts subject to cancellation pursuant to clause (v) above); and

(vii)Affiliated Persons will not be required to represent or warrant that they are not in possession of non-public information with respect to Parent, Holdings, the Borrower and/or any Subsidiary thereof and/or their respective securities in connection with any Purchase Offer permitted by this Section 2.15.

(b)The relevant Affiliated Person must terminate any Purchase Offer if it fails to satisfy one or more of the conditions set forth above which are required to be met at the time which otherwise would have been the time of purchase of Loans pursuant to such Purchase Offer.  Such Affiliated Person shall have no liability to any Lender for any termination of such Purchase Offer as a result of its failure to satisfy one or more of the conditions set forth above which are required to be met at the time which otherwise would have been the time of consummation of such Purchase Offer, and any such termination shall not, in and of itself, result in any Default or Event of Default hereunder. With respect to all purchases of Loans made by any Affiliated Person pursuant to this Section 2.15, (x) the applicable Affiliated Person shall pay on the settlement date of each such purchase all accrued and unpaid interest (except to the extent otherwise set forth in the relevant offering documents or assignment documents relating to such Purchase Offer), if any, on the purchased Loans up to the settlement date of such purchase, (y) such purchases (and the payments made by such Affiliated Person and any cancellation of the purchased Loans, in each case in connection therewith) shall not constitute voluntary or mandatory payments or prepayments under Section 4.01 or Section 4.02 hereof and (z) any Affiliated Non-Debt Fund Lender may elect to forgive or cancel Loans, whether through a capital contribution to Parent or Holdings (which is, in turn, substantially concurrently, contributed to the Borrower for the purpose of immediate cancellation of such Loans) or otherwise.

(c)The Administrative Agent and the Lenders hereby consent to the Purchase Offers and the other transactions effected pursuant to and in accordance with the terms of this Section 2.15 (provided that no Lender shall have an obligation to participate in any such Purchase Offer).  For the avoidance of doubt, it is understood and agreed that the provisions of Section 12.04 and Section 12.06 will not apply to the purchases of Loans pursuant to Purchase Offers made pursuant to and in accordance with the provisions of this Section 2.15 or any forgiveness or cancellation of Loans provided for in paragraph (b) above. The Auction Manager acting in its capacity as such hereunder shall be entitled to the benefits of the provisions of Section 11 and Section 12.02 to the same extent as if each reference therein to the “Administrative Agent” were a reference to the Auction Manager, and the Administrative Agent shall cooperate with the Auction Manager as reasonably requested by the Auction Manager in order to enable it to perform its responsibilities and duties in connection with each Purchase Offer.

(d)Notwithstanding anything to the contrary contained in this Agreement or in any other Credit Document, Parent, Holdings, the Borrower and each Affiliated Non-Debt Fund Lender

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becoming a Lender hereby agree that (i) each Affiliated Non-Debt Fund Lender’s voting rights as a Lender in respect of the Credit Documents are limited as, and to the extent, set forth herein (including in the definition of “Required Lenders” appearing in Section 1.01); provided no amendment, modification, waiver or consent in respect of Sections 10.02 or 12.06, to the extent that such amendment, modification, waiver or consent disproportionately, directly and adversely affects such Affiliated Non-Debt Fund Lender, shall be effective without the consent of such Affiliated Non-Debt Fund Lender, (ii) each Affiliated Non-Debt Fund Lender waives its right in its capacity as a Lender to receive information (other than administrative information such as notifications under Section 2 hereof) not prepared by (or on behalf of) Parent, Holdings or Borrower from the Administrative Agent, the Security Agent or any other Lender under or in connection with the Credit Documents otherwise delivered or required to be delivered to each Lender (and not delivered to Holdings or the Borrower) and attend any meeting or conference call with the Administrative Agent, the Security Agent or any Lender in respect of the Credit Documents but in which none of Parent, Holdings nor the Borrower participates and to receive advice of counsel to the Administrative Agent or the Lenders or challenge any related attorney-client privilege, (iii) at the time of each assignment to an assignee that is an Affiliated Non-Debt Fund Lender, such assignee shall identify itself as an Affiliate Lender by notifying the Administrative Agent thereof in writing, (iv) no Affiliated Non-Debt Fund Lender shall make or bring any claim, in its capacity as a Lender, against the Administrative Agent, the Security Agent or any Lender with respect to the duties and obligations of such Persons under the Credit Documents (except for gross negligence, bad faith or willful misconduct or failure to deliver distributions (including principal and interest) to an Affiliated Non-Debt Fund Lender in accordance with the terms of the Credit Documents or breach of provisions specifically impacting such Affiliated Non-Debt Fund Lender in its capacity as such under the Credit Documents), and (v) if a case under the Bankruptcy Code is commenced against any Credit Party, such Credit Party shall seek (and the Affiliated Non-Debt Fund Lenders shall consent) to provide that the vote of the Affiliated Non-Debt Fund Lenders with respect to any plan of reorganization of such Credit Party shall be counted in the same proportion as all other Lenders except that Affiliated Non-Debt Fund Lenders’ vote may be counted to the extent any such plan of reorganization proposes to treat the Obligations held by Affiliated Non-Debt Fund Lenders in a manner that is less favorable in any material respect to the Affiliated Non-Debt Fund Lenders than the proposed treatment of similar Obligations held by Lenders that are not Affiliated Non-Debt Fund Lenders or would deprive the Affiliated Non-Debt Fund Lenders of their pro rata share of any payments to which all Lenders are entitled.

2.16Extensions of Loans.

(a)Notwithstanding anything to the contrary in this Agreement, pursuant to one or more offers (each, an “Extension Offer”) made from time to time by the Borrower to all Lenders of Loans with a like Maturity Date of the same Class, in each case on a pro rata basis (based on the aggregate outstanding principal amount of the respective Loans with a like Maturity Date of the same Class, as the case may be) and on the same terms to each such Lender, the Borrower is hereby permitted to consummate from time to time transactions with individual Lenders that accept the terms contained in such Extension Offers to extend the maturity date of each such Lender’s Loans and otherwise modify the terms of such Loans pursuant to the terms of the relevant Extension Offer (including, without limitation, by increasing the interest rate or fees payable in respect of such Loans (and related outstandings) and/or modifying the amortization schedule in respect of such Lender’s Loans) (each, an “Extension”, and each group of Loans, as applicable, in each case as so extended, as well as the original Loans (in each case not so extended), being a “tranche”; any Extended Loans shall constitute a separate tranche of Loans from the tranche of Loans from which they were converted), so long as the following terms are satisfied:  (i) no Event of Default shall have occurred and be continuing at the time the offering document in respect of an Extension Offer is delivered to the Lenders, (ii) except as to interest rates, fees, amortization, final maturity date, premium, required prepayment dates and participation in prepayments (which shall, subject to immediately succeeding clauses (iii), (iv) and (v), be determined by the Borrower and set forth in the

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relevant Extension Offer), the Loans of any Term Lender that agrees to an Extension with respect to such Loans (an “Extending Term Lender”) extended pursuant to any Extension (“Extended Loans”) shall be substantially identical to, or (taken as a whole) not materially more favorable to the Extending Term Lenders than those applicable to the Loans subject to such Extension Offer (except for (x) covenants or other provisions applicable only to periods after the Latest Maturity Date as in effect immediately prior to the time of the Extension Offer or (y) any financial maintenance covenant to the extent such covenant is also added for the benefit of the Lenders under any applicable existing Loans), (iii) the final maturity date of any Extended Loans shall be no earlier than the then Latest Maturity Date hereunder as in effect immediately prior to the time of the Extension Offer and the Scheduled Initial Repayment for periods prior to the Initial Maturity Date may not be increased, (iv) the Weighted Average Life to Maturity of any Extended Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Class of Loans extended thereby that do not accept such Extension Offer (except to the extent of nominal amortization for periods where amortization has been eliminated as a result of prepayment of the applicable Loans), (v) any Extended Loans may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any voluntary or mandatory repayments or prepayments hereunder, in each case as specified in the respective Extension Offer, (vi) if the aggregate principal amount of Loans (calculated on the face amount thereof) in respect of which Lenders shall have accepted the relevant Extension Offer shall exceed the maximum aggregate principal amount of Loans offered to be extended by the Borrower pursuant to such Extension Offer, then the Loans of such Lenders shall be extended ratably up to such maximum amount based on the respective principal amounts (but not to exceed actual holdings of record) with respect to which such Lenders have accepted such Extension Offer, (vii) all documentation in respect of such Extension shall be consistent with the foregoing, (viii) any applicable Minimum Extension Condition shall be satisfied unless waived by the Borrower, and (ix) as a condition precedent to the effectiveness of any such Extension, the Borrower shall have re-complied with the flood insurance requirements set forth in Sections 8.03(c) and 8.12(d).

(b)With respect to all Extensions consummated by the Borrower pursuant to this Section 2.16, (i) such Extensions shall not constitute voluntary or mandatory payments or prepayments for purposes of Section 4 and (ii) no Extension Offer is required to be in any minimum amount or any minimum increment, provided that the Borrower may at its election specify as a condition (a “Minimum Extension Condition”) to consummating any such Extension that a minimum amount (to be determined and specified in the relevant Extension Offer in the Borrower’s sole discretion and may be waived by the Borrower) of Loans of any or all applicable tranches be tendered.  The Administrative Agent and the Lenders hereby consent to the Extensions and the other transactions contemplated by this Section 2.16 (including, for the avoidance of doubt, payment of any interest, fees or premium in respect of any Extended Loans on such terms as may be set forth in the relevant Extension Offer) and hereby waive the requirements of any provision of this Agreement (including, without limitation, Sections 4 and 12.06) or any other Credit Document that may otherwise prohibit any such Extension or any other transaction contemplated by this Section 2.16.

(c)No consent of any Lender or the Administrative Agent shall be required to effectuate any Extensions, other than the consent of each Lender agreeing to such Extension with respect to one or more of its Loans (or a portion thereof). All Extended Loans and all obligations in respect thereof shall be Obligations under this Agreement and the other Credit Documents that are secured by the Collateral on a pari passu basis with all other applicable Obligations under this Agreement and the other Credit Documents. The Lenders hereby irrevocably authorize the Administrative Agent and Security Agent to enter into amendments to this Agreement and the other Credit Documents with the Borrower and any other Credit Party as may be necessary in order to establish new tranches or sub-tranches in respect of Loans so extended and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.16.

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(d)In connection with any Extension, the Borrower shall provide the Administrative Agent at least 5 Business Days’ (or such shorter period as may be agreed by the Administrative Agent) prior written notice thereof, and shall agree to such procedures (including, without limitation, rendering timing, rounding and other adjustments and to ensure reasonable administrative management of the credit facilities hereunder after such Extension), if any, as may be established by, or acceptable to, the Administrative Agent, in each case acting reasonably to accomplish the purposes of this Section 2.16.

(e)This Section 2.16 shall supersede any provisions in Section 12.06 or 12.12 to the contrary.

2.17Refinancing Amendments.

(a)At any time after the Effective Date, the Borrower may obtain, from any Lender or any Additional Lender, Credit Agreement Refinancing Indebtedness in respect of all or any portion of the Loans then outstanding under this Agreement (which for purposes of this clause (a) will be deemed to include any then outstanding Other Loans, Other Loan Commitments and Incremental Loans), in the form of Other Loans or Other Loan Commitments under this Agreement pursuant to a Refinancing Amendment.  The effectiveness of any Refinancing Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 6 and, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of customary legal opinions, board resolutions, officers’ certificates and/or reaffirmation agreements.  Each Class of Credit Agreement Refinancing Indebtedness incurred under this Section 2.17 shall be in an aggregate principal amount that is (x) not less than $25,000,000 and (y) an integral multiple of $1,000,000 in excess thereof (unless such Credit Agreement Refinancing Indebtedness is incurred to refinance all outstanding Loans with respect to a Class).

(b)The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Amendment.  Each of the parties hereto hereby agrees that, upon the effectiveness of any Refinancing Amendment, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Credit Agreement Refinancing Indebtedness incurred pursuant thereto (including any amendments necessary to treat the Loans and Commitments subject thereto as Other Loans and/or Other Loan Commitments).  Any Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section.  The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Amendment.  Each of the parties hereto hereby agrees that, upon the effectiveness of any Refinancing Amendment, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Credit Agreement Refinancing Indebtedness incurred pursuant thereto (including any amendments necessary to treat the Loans and Commitments subject thereto as Other Loans and/or Other Loan Commitments).  Any Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to reflect the provisions of this Section.

(c)This Section 2.17 shall supersede any provisions in Section 12.06 or 12.12 to the contrary.

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SECTION 3.Fees; Reductions of Commitment.

3.01Fees.  The Borrower agrees to pay to the Administrative Agent such fees as may have been, or are hereafter, agreed to in writing from time to time by the Borrower or any of its Subsidiaries and the Administrative Agent.

3.02Mandatory Reduction of Commitments.  The Initial Loan Commitments (and the Initial Loan Commitment of each Lender) shall terminate permanently in its entirety on the Effective Date (after giving effect to the incurrence of Loans on such date).

SECTION 4.Prepayments; Payments; Taxes.

4.01Voluntary Prepayments.  (a) The Borrower shall have the right to prepay the Loans, without premium or penalty (except as provided below in Section 4.01(c)), in whole or in part at any time and from time to time on the following terms and conditions: (i) the Borrower shall give the Administrative Agent prior to 1:00 PM (New York City time) at the Notice Office (A) at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) of its intent to prepay Base Rate Loans and (B) at least three Business Days’ prior written notice (or telephonic notice promptly confirmed in writing) of its intent to prepay LIBOR Loans, which notice (in each case) shall specify the amount of such prepayment and the Types of Loans to be prepaid and, in the case of LIBOR Loans, the specific Borrowing or Borrowings pursuant to which such LIBOR Loans were made, and which notice the Administrative Agent shall, promptly transmit to each of the Lenders; (ii) each partial prepayment of Loans pursuant to this Section 4.01(a) shall be in an aggregate principal amount of at least $1,000,000 (or such lesser amount as constitutes a single Borrowing or is otherwise reasonably acceptable to the Administrative Agent); provided that if any partial prepayment of LIBOR Loans made pursuant to any Borrowing shall reduce the outstanding principal amount of LIBOR Loans made pursuant to such Borrowing to an amount less than the Minimum Borrowing Amount applicable thereto, then such Borrowing may not be continued as a Borrowing of LIBOR Loans (and same shall automatically be converted into a Borrowing of Base Rate Loans) and any election of an Interest Period with respect thereto given by the Borrower shall have no force or effect; (iii) each prepayment pursuant to this Section 4.01(a) in respect of any Loans made pursuant to a Borrowing shall be applied pro rata among such Loans; and (iv) each prepayment of Loans pursuant to this Section 4.01(a) shall be applied to reduce the then remaining Scheduled Initial Repayments as directed by the Borrower or, absent such direction, in direct order of maturity thereof.  A notice of optional prepayment may state that such notice is conditional upon the effectiveness of other credit facilities or the receipt of the proceeds from the issuance of other Indebtedness or the occurrence of some other identifiable event or condition, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied.

(b)In the event of certain refusals by a Lender to consent to certain proposed changes, waivers, discharges or terminations with respect to this Agreement which have been approved by the Required Lenders as (and to the extent) provided in Section 12.12(b), the Borrower may, upon at least three Business Days’ prior written notice to the Administrative Agent at the Notice Office (which notice the Administrative Agent shall promptly transmit to each of the Lenders), repay all Loans of such Lender, together with accrued and unpaid interest and all other amounts then owing to such Lender (including all amounts, if any, owing pursuant to Section 2.11) and terminate all Commitments of such Lender in accordance with, and subject to the requirements of Section 12.12(b), so long as the consents, if any, required by Section 12.12(b) in connection with the repayment pursuant to this clause (b) shall have been obtained.  Each prepayment of Loans pursuant to this Section 4.01(b) shall reduce the then remaining Scheduled Initial Repayments in a manner determined at the discretion of the Borrower and specified in the notice of prepayment (and absent such direction, in direct order of maturity).

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(c)If, prior to the six-month anniversary of the Effective Date, in connection with any Repricing Transaction, (x) the Borrower makes any prepayment of Effective Date Loans with the proceeds of any secured term loan Indebtedness referred to in clause (x) of the definition of “Repricing Transaction”, or (y) the Borrower effects any amendment of this Agreement resulting in a Repricing Transaction referred to in clause (y) of the definition of “Repricing Transaction”, the Borrower shall pay to the Administrative Agent, for the ratable account of each applicable Lender, (I) in the case of clause (x), a prepayment premium of 1% of the aggregate principal amount of the Effective Date Loans being prepaid and (II) in the case of clause (y), a payment equal to 1% of the aggregate principal amount of the Effective Date Loans subject to such Repricing Transaction.

4.02Mandatory Repayments. (a) In addition to any other mandatory repayments required pursuant to this Section 4.02, on each date set forth below (each, a “Scheduled Initial Repayment Date”), the Borrower shall be required to repay that principal amount of the Effective Date Loans, to the extent then outstanding, as is set forth opposite each such date below (each such repayment, as the same may be reduced as provided in Section 4.01(a), 4.01(b) or 4.02(g), a “Scheduled Initial Repayment”):

Scheduled Initial Repayment Date	Amount
September 30, 2016	$	3,250,000
December 31, 2016	$	3,250,000
March 31, 2017	$	3,250,000
June 30, 2017	$	3,250,000
September 30, 2017	$	3,250,000
December 31, 2017	$	3,250,000
March 31, 2018	$	3,250,000
June 30, 2018	$	3,250,000
September 30, 2018	$	3,250,000
December 31, 2018	$	3,250,000
March 31, 2019	$	3,250,000
June 30, 2019	$	3,250,000
September 30, 2019	$	3,250,000
December 31, 2019	$	3,250,000
March 31, 2020	$	3,250,000
June 30, 2020	$	3,250,000
September 30, 2020	$	3,250,000
December 31, 2020	$	3,250,000
March 31, 2021	$	3,250,000
June 30, 2021	$	3,250,000
September 30, 2021	$	3,250,000
December 31, 2021	$	3,250,000
March 31, 2022	$	3,250,000
June 30, 2022	$	3,250,000
September 30, 2022	$	3,250,000
December 31, 2022	$	3,250,000
March 31, 2023	$	3,250,000
Initial Maturity Date	Remaining outstanding principal.

(b)[Reserved].

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(c)In addition to any other mandatory repayments required pursuant to this Section 4.02, within five Business Days after each date on or after the Effective Date upon which Parent or any of its Restricted Subsidiaries receives any cash proceeds from any issuance or incurrence by Parent or any of its Restricted Subsidiaries of Indebtedness (other than Indebtedness permitted to be incurred pursuant to Section 9.04), an amount equal to 100% of the Net Cash Proceeds of the respective issuance or incurrence of Indebtedness shall be applied on such date as a mandatory repayment in accordance with the requirements of Sections 4.02(g) and (h).

(d)In addition to any other mandatory repayments required pursuant to this Section 4.02, within five Business Days after each date on or after the Effective Date upon which Parent or any of its Restricted Subsidiaries receives any Net Sale Proceeds from any Asset Sale, an amount equal to 100% of the Net Sale Proceeds therefrom shall be applied on such date as a mandatory repayment in accordance with the requirements of Sections 4.02(g) and (h); provided, however, such Net Sale Proceeds shall not be required to be so applied on such date so long as an amount equal to such Net Sale Proceeds shall be used in the business of Parent or any of its Restricted Subsidiaries, including to acquire, maintain, develop, construct, improve, upgrade or repair any asset used or useful in the business of Parent or any of its Restricted Subsidiaries or to make Permitted Acquisitions or any acquisition or Investments not prohibited by this Agreement within the Relevant Reinvestment Period, and provided, further, that if all or any portion of such Net Sale Proceeds not required to be so applied as provided above in this Section 4.02(d) are not so reinvested within such Relevant Reinvestment Period, an amount equal to such remaining portion shall be applied within three Business Days of the last day of such Relevant Reinvestment Period as otherwise provided above in this Section 4.02(d) without regard to the preceding proviso.

(e)In addition to any other mandatory repayments pursuant to this Section 4.02, within five Business Days after each date on or after the Effective Date upon which Parent or any of its Restricted Subsidiaries receives any cash proceeds from any Recovery Event (other than Recovery Events where the Net Insurance Proceeds therefrom do not exceed $15,000,000), an amount equal to 100% of the Net Insurance Proceeds from such Recovery Event shall be applied on such date as a mandatory repayment in accordance with the requirements of Sections 4.02(g) and (h); provided, however, that such Net Insurance Proceeds shall not be required to be so applied on such date so long as an amount equal to such Net Insurance Proceeds shall be used in the business of Parent or any of its Restricted Subsidiaries, including to acquire, maintain, develop, construct, improve, upgrade or repair any asset used or useful in the business of Parent or any of its Restricted Subsidiaries or to make Permitted Acquisitions or any acquisition or Investments not prohibited by this Agreement within the Relevant Reinvestment Period, and provided, further, that if all or any portion of such Net Insurance Proceeds not required to be so applied pursuant to the preceding proviso are not so used within the Relevant Reinvestment Period, an amount equal to such remaining portion shall be applied within three Business Days of the end the last day of such Relevant Reinvestment Period as provided above in this Section 4.02(e) without regard to the immediately preceding proviso.

(f)In addition to any other mandatory repayments pursuant to this Section 4.02, on each Excess Cash Payment Date, an amount equal to 50% of the Excess Cash Flow for the related Excess Cash Payment Period shall be applied as a mandatory repayment in accordance with the requirements of Sections 4.02(g) and (h); provided, however, that so long as the Total Net Leverage Ratio as of the last day of the respective Excess Cash Payment Period does not exceed (x) 3.95:1.00, the foregoing percentage shall be reduced to 25% of such Excess Cash Flow or (y) 3.45:1.00, the foregoing percentage shall be reduced to 0% of such Excess Cash Flow; provided, further, that any amount required to be applied pursuant to this Section 4.02(f) shall be reduced dollar-for-dollar by (x) the amount of any voluntary prepayments of the Loans and other term Indebtedness secured on a pari passu basis with the Loans or constituting a Permitted Refinancing of the Loans, and, to the extent accompanied by a

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permanent reduction of the commitments under the ABL Credit Agreement, the ABL Loans, in each case made during the applicable Fiscal Year pursuant to Section 4.01 or the corresponding provisions of the ABL Credit Agreement or other relevant agreement governing the applicable Indebtedness (except to the extent made with the proceeds of long-term Indebtedness (other than revolving Indebtedness)) and (y) the amount of all payments in cash paid by Parent or any of its Restricted Subsidiaries in connection with repurchases and purchases of Loans pursuant to Section 2.15 (except to the extent made with the proceeds of long-term Indebtedness (other than revolving Indebtedness)).

(g)Except with respect to Loans incurred in connection with, and as provided in, any Extension Offer, Refinancing Amendment or any Incremental Amendment (which may be prepaid on a less than pro rata basis in accordance with its terms) each amount required to be applied pursuant to Sections 4.02 (c), (d), (e) and (f) in accordance with this Section 4.02(g) shall be applied to repay the outstanding principal amount of Loans; provided, however, if as part of any Asset Sale or Recovery Event, any ABL Priority Collateral is being sold or has been damaged or taken (as the case may be), then an amount equal to the amount of the Net Sale Proceeds from such Asset Sale or the Net Insurance Proceeds from such Recovery Event (as the case may be) that is attributable to such ABL Priority Collateral shall first be applied to the outstanding ABL Loans to the extent required by the ABL Credit Agreement before any portion of an amount equal to such Net Sale Proceeds or Net Insurance Proceeds is applied as provided above in this Section 4.02(g) without regard to this proviso (and any such application to outstanding ABL Loans shall reduce the mandatory repayment required hereunder dollar-for-dollar); provided further, that notwithstanding the foregoing, if any Indebtedness has been incurred that is secured by Liens subject to the Pari Passu Intercreditor Agreement, then any such prepayments referenced in clauses (d), (e) and (f) above may, at the election of the Borrower, be allocated ratably to the Loans and such Indebtedness. The amount of each principal repayment of Loans made as required by this Section 4.02(g) shall be applied to reduce the then remaining Scheduled Initial Repayments as directed by the Borrower or, absent such direction, in direct order of maturity thereof.

(h)With respect to each repayment of Loans required by this Section 4.02, the Borrower may designate the Types of Loans which are to be repaid and, in the case of LIBOR Loans, the specific Borrowing or Borrowings pursuant to which such LIBOR Loans were made; provided that: (i) repayments of LIBOR Loans pursuant to this Section 4.02 made on a day other than the last day of an Interest Period applicable thereto shall be subject to Section 2.11; (ii) if any repayment of LIBOR Loans made pursuant to a single Borrowing shall reduce the outstanding LIBOR Loans made pursuant to such Borrowing to an amount less than the Minimum Borrowing Amount applicable thereto, such Borrowing shall be automatically converted into a Borrowing of Base Rate Loans; and (iii) except for repayments made pursuant to Section 2.15, each repayment of any Loans made pursuant to a Borrowing shall be applied pro rata among the Lenders holding such Loans.  In the absence of a designation by the Borrower as described in the preceding sentence, the Administrative Agent shall, subject to the above, apply such repayment, first, to Base Rate Loans and, second, if there are no Base Rate Loans outstanding at such time, to LIBOR Loans (applied first to such Borrowings as would result in the least amount owed by the Borrower under Section 2.11).

(i)In addition to any other mandatory repayments pursuant to this Section 4.02, all then outstanding Loans of a respective Class shall be repaid by the Borrower in full on the Maturity Date for such Class of Loans.

(j)The Borrower shall use commercially reasonable efforts to notify the Administrative Agent in writing of any mandatory repayment of Loans required to be made pursuant to Section 4.02(c), (d), (e) or (f) at least three Business Days prior to the date of such repayment.  Each such notice shall specify the date of such repayment and provide a reasonably detailed calculation of the amount of such repayment.  The Administrative Agent will promptly notify each Lender holding Loans of

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the contents of the Borrower’s repayment notice and of such Lender’s pro rata share of any repayment.  Other than in the case of any repayment of the Loans in full or with the proceeds of any Credit Agreement Refinancing Indebtedness, each Lender may reject all or a portion of its pro rata share of any mandatory repayment (such declined amounts, the “Declined Proceeds”) of Loans required to be made pursuant to Sections 4.02(c), (d), (e) or (f) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower no later than 5:00 P.M. (New York City time) on the Business Day after the date of such Lender’s receipt of notice from the Administrative Agent regarding such repayment.  Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Loans to be rejected by such Lender.  If a Lender fails to deliver such Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory repayment of Loans to which such Lender is otherwise entitled.  Any Declined Proceeds, subject to any repayment requirements under the ABL Credit Agreement, shall be retained by the Borrower.

(k)Notwithstanding any other provisions of this Section 4.02, (A) to the extent that any or all of the Net Sale Proceeds of any Asset Sale or the Net Insurance Proceeds of any Recovery Event by a Foreign Subsidiary giving rise to a prepayment event pursuant to Section 4.02(d) or (e) (a “Foreign Disposition”) or Excess Cash Flow are prohibited or delayed by applicable local law from being repatriated to the United States, the portion of such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times provided in this Section 4.02 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation to the United States (the Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable Foreign Subsidiary to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow is permitted under the applicable local law, such repatriation will be promptly effected and such repatriated Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow will be promptly (and in any event not later than ten (10) Business Days after such repatriation) applied (net of additional taxes payable or reserved against as a result thereof) to the repayment of the Loans pursuant to this Section 4.02 to the extent provided herein and (B) to the extent that the Borrower has determined in good faith that repatriation of any of or all the Net Sale Proceeds, Net Insurance Proceeds of any Foreign Disposition or Excess Cash Flow would have a material adverse tax cost consequence (taking into account any foreign tax credit or benefit that is anticipated in connection with such repatriation) with respect to such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow, the Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow so affected may be retained by the applicable Foreign Subsidiary until such time as it may repatriate such amount without incurring such material adverse tax consequences (at which time such amount shall be repatriated to the Borrower and promptly applied to repay the Term Loans in accordance with this Section 4.02).

4.03Method and Place of Payment.  Except as otherwise specifically provided herein, all payments under this Agreement and under any Note shall be made to the Administrative Agent for the account of the Lender or Lenders entitled thereto not later than 1:00 PM (New York City time) on the date when due and shall be made in Dollars in immediately available funds at the Payment Office.  Except as provided in Section 2.09, whenever any payment to be made hereunder or under any Note shall be stated to be due on a day which is not a Business Day, the due date thereof shall be extended to the next succeeding Business Day and, with respect to payments of principal, interest shall be payable at the applicable rate during such extension.

4.04Net Payments.  (a) Any and all payments by or on account of any obligation of any Credit Party under any Credit Document shall be made without deduction or withholding for any

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Taxes, except as required by applicable law. If any applicable law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Credit Party shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.

(b)The Credit Parties shall timely pay to the relevant Governmental Authority in accordance with applicable law any Other Taxes, or at the option of the Administrative Agent timely reimburse it for the payment of any Other Tax.

(c)The Credit Parties shall, without duplication of Section 4.04(a) or (b) above, jointly and severally indemnify each Recipient, within 10 days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.

(d)Each Lender shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that any Credit Party has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting any obligation of the Credit Parties to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 12.04 relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Credit Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error.  Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Credit Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this paragraph (d).

(e)As soon as reasonably practicable after any payment of Taxes by any Credit Party to a Governmental Authority pursuant to this Section 4.04, such Credit Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

(f)(i)Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding.  In addition, any Lender, if reasonably requested by the Borrower or the

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Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements.  Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 4.04(f)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if (x) a change in treaty, law or regulation has occurred prior to the date on which such delivery would otherwise be required that renders any such form or certificate inapplicable or would prevent the Lender from duly completing and delivering any such form or certificate with respect to it and such Lender so advises Borrower and (y) in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.

(ii)Without limiting the generality of the foregoing,

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

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

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

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

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

(iv)to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY, accompanied by IRS Form W-

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8ECI, IRS Form W-8BEN or W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit C-2 or Exhibit C-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender shall provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit C-4 on behalf of each such partner;

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

(D)if a payment made to a Lender under any Credit Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment.  Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA and any regulations promulgated thereunder after the date of this Agreement; and

(E)each Agent that is entitled to an exemption from or reduction of withholding tax with respect to any payment under this Agreement made by the Borrower to such Agent under the law of the jurisdiction in which Borrower is located shall deliver to Borrower or Administrative Agent, as applicable, on or prior to the date on which such Agent becomes an Agent under this Agreement (and from time to time thereafter upon the request of the Borrower or the Administrative Agent, as applicable), any such properly completed and executed documentation prescribed by applicable law as may permit such payments to be made without withholding or at a reduced rate of withholding tax.  Without limiting the generality of the foregoing, each Agent that is a U.S. Person shall deliver to the Borrower and the Administrative Agent (or, in the case of the Administrative Agent, the Borrower) on or prior to the date on which such Agent becomes an Agent under this Agreement (and from time to time thereafter upon the request of the Borrower or Administrative Agent, as applicable) two copies of U.S. Internal Revenue Service Form W-9 (or successor form) certifying that such Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrower and the Administrative Agent, as applicable, to determine

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whether or not such Agent is subject to United States federal backup withholding tax or information reporting requirements.

Each Lender and Agent agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.

(g)If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 4.04 (including by the payment of additional amounts pursuant to this Section 4.04), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund).  Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (g) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority.  Notwithstanding anything to the contrary in this paragraph (g), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (g) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid.  This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.

(h)Each party’s obligations under this Section 4.04 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Credit Document.

SECTION 5.Conditions Precedent to the Effective Date.  The obligation of each Lender to make the Effective Date Loans on the Effective Date is subject at the time of the making of such Effective Date Loans to the satisfaction of the following conditions:

5.01Effective Date; Notes.  On or prior to the Effective Date, (a) Parent, Holdings, the Borrower, the Administrative Agent, the Security Agent and each of the Lenders shall have signed a counterpart hereof (whether the same or different counterparts) and shall have delivered the same to the Administrative Agent and (b) there shall have been delivered to the Administrative Agent for the account of each of the Lenders that has requested same in writing at least three (3) Business Days prior to the Effective Date, the appropriate Notes executed by the Borrower.

5.02Officer’s Certificate.  On the Effective Date, the Administrative Agent shall have received a certificate, dated the Effective Date and signed on behalf of the Borrower by the chairman of the board, the chief executive officer, the chief financial officer, the president or any vice president of the Borrower, certifying on behalf of the Borrower that all of the conditions in Section 6.01 have been (or will be concurrently with the funding of the Effective Date Loans on the Effective Date) satisfied on such date.

5.03Opinions of Counsel.  On the Effective Date, the Administrative Agent shall have received (a) from Skadden, Arps, Slate, Meagher & Flom LLP, special counsel to the Credit Parties, an

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opinion addressed to the Administrative Agent, the Security Agent and the Lenders and dated the Effective Date in customary form reasonably acceptable to the Administrative Agent and (b) without duplication, from local Maine, Ohio, and Oklahoma counsel, reasonably acceptable to the Administrative Agent, in each case, an opinion in customary form and substance reasonably satisfactory to the Administrative Agent addressed to the Administrative Agent, the Security Agent and each of the Lenders and dated the Effective Date covering such customary matters incident to the transactions contemplated herein as the Administrative Agent may reasonably request.

5.04Company Documents; Proceedings; etc.  (a) On the Effective Date, the Administrative Agent shall have received a certificate from each Credit Party, dated the Effective Date, signed by the chairman of the board, the chief executive officer, the chief financial officer, the president or any vice president of such Credit Party, and attested to by the secretary or any assistant secretary of such Credit Party, in the form of Exhibit D with appropriate insertions, together with copies of the certificate or articles of incorporation and by-laws (or other equivalent organizational documents), as applicable, of such Credit Party and the resolutions of such Credit Party referred to in such certificate, and each of the foregoing shall be in form and substance reasonably acceptable to the Administrative Agent.

(b)On the Effective Date, the Administrative Agent shall have received a good standing certificate (to the extent such concept exists and delivery is customary in the applicable jurisdiction) from the applicable Governmental Authority of each Credit Party’s jurisdiction of incorporation, organization or formation.

5.05[Reserved].

5.06[Reserved].

5.07Consummation of the Refinancing; Amendment of the ABL Credit Agreement.  (a) On the Effective Date, and substantially concurrently with the incurrence of the Effective Date Loans, the proceeds of such Effective Date Loans shall be used to (x) prepay in full all obligations outstanding under the Existing First-Lien Term Loan Credit Agreement, together with all fees and other amounts owing thereon, and (y) prepay in full all obligations outstanding under the Existing Second-Lien Term Loan Credit Agreement, together with all fees and other amounts owing thereon (collectively, the “Refinancing”).  In addition, the applicable Credit Parties shall have entered into the Effective Date ABL Amendment.

(b)On the Effective Date and substantially concurrently with the incurrence of the Effective Date Loans, the use of the proceeds of such Effective Date Loans to finance the Refinancing and the effectiveness of the Effective Date ABL Amendment (x) all security interests and guarantees in respect of, and Liens securing the Existing First-Lien Term Loan Credit Agreement created pursuant to the security and guaranty documentation relating thereto shall have been terminated and released (or arrangements for such terminations and releases reasonably satisfactory to the Administrative Agent shall have been made), and the Administrative Agent shall have received all such releases as may have been reasonably requested by the Administrative Agent, which releases shall be in form and substance reasonably satisfactory to the Administrative Agent, and (y) all security interests and guarantees in respect of, and Liens securing the Existing Second-Lien Term Loan Credit Agreement created pursuant to the security and guaranty documentation relating thereto shall have been terminated and released (or arrangements for such terminations and releases reasonably satisfactory to the Administrative Agent shall have been made), and the Administrative Agent shall have received all such releases as may have been reasonably requested by the Administrative Agent, which releases shall be in form and substance reasonably satisfactory to the Administrative Agent.  Without limiting the foregoing, there shall have been delivered to the Administrative Agent (i) proper termination statements requested by the

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Administrative Agent for filing under the UCC or equivalent statute or regulation of each relevant jurisdiction where a financing statement or application for registration was filed with respect to Holdings or any of its Subsidiaries in connection with the security interests created with respect to the Indebtedness under each of the Existing First-Lien Term Loan Credit Agreement and the Existing Second-Lien Term Loan Credit Agreement, (ii) terminations or reassignments of any security interest in, or Lien on, any patents, trademarks, copyrights, or similar interests of Holdings or any of its Subsidiaries on which filings have been made, in each case, to secure the obligations under each of the Existing First-Lien Term Loan Credit Agreement and the Existing Second-Lien Term Loan Credit Agreement, and (iii) terminations or reassignments of all mortgages, leasehold mortgages, hypothecs, deeds of trust, leasehold deeds of trust, deeds to secure debt, leasehold deeds to secure debt, debentures or similar security instruments created with respect to property of Holdings or any of its Subsidiaries, in each case, to secure the obligations in respect of each of the Existing First-Lien Term Loan Credit Agreement and the Existing Second-Lien Term Loan Agreement, all of which shall be in form and substance reasonably satisfactory to the Administrative Agent.

5.08[Reserved].

5.09Guaranty; Intercompany Subordination Agreement.  (a) On the Effective Date, each Guarantor shall have duly authorized, executed and delivered the Guaranty in the form of Exhibit E (the “Guaranty”), and the Guaranty shall be in full force and effect.

(b)On the Effective Date, each Credit Party shall have duly authorized, executed and delivered  the Intercompany Subordination Agreement, and the Intercompany Subordination Agreement shall be in full force and effect.

5.10Fees, etc. (a) The Administrative Agent shall have received, for the account of each Lender, substantially concurrently with the funding of the Effective Date Loans, an initial yield payment equal to 0.50% of such Lender’s Initial Loan Commitment on the Effective Date (as in effect immediately before giving effect to the termination thereof pursuant to Section 3.02), with such payment to be earned by, and payable to, each such Lender on the Effective Date (which amounts may, at the Borrower’ option, be offset against the proceeds of the Effective Date Loans).  The parties hereto acknowledge that for tax purposes only the initial yield payment shall be treated as a payment described in Treas. Reg. Section 1.1273-2(g)(2).

(b)On the Effective Date, the Borrower shall have paid to the Administrative Agent (and its relevant affiliates), the Security Agent and the Joint Lead Arrangers all costs, fees and expenses (including, without limitation, reasonable legal fees and expenses to the extent invoiced at least two Business Days prior to the Effective Date (except as otherwise reasonably agreed by the Borrower)) and other compensation contemplated hereby payable by the Borrower to the Administrative Agent (and/or its relevant affiliates), the Security Agent or any Joint Lead Arranger to the extent then due on the Effective Date.

5.11Intercreditor Agreement.  On the Effective Date the Administrative Agent and the Security Agent (for and on behalf of the Secured Creditors) and the ABL Agent (for and on behalf of the ABL Secured Parties) shall have duly authorized, executed and delivered the Amended & Restated Intercreditor Agreement in the form of Exhibit K-1 (the “Intercreditor Agreement”), each Credit Party shall have acknowledged and agreed to the Intercreditor Agreement, and the Intercreditor Agreement shall be in full force and effect.

5.12Security Agreements.  On the Effective Date, each Credit Party shall have duly authorized, executed and delivered (a) the Security Agreement in the form of Exhibit F (the “Security

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Agreement”) covering all of such Credit Party’s Security Agreement Collateral, (b) the Copyright Security Agreements to which such Credit Party is a party, (c) the Patent Security Agreements to which such Credit Party is a party and (d) the Trademark Security Agreements to which such Credit Party is a party, and each such Security Document shall be in full force and effect, together with:

(i)proper financing statements for filing under the UCC or other appropriate filing offices of each jurisdiction as may be necessary or, in the reasonable opinion of the Security Agent, desirable, to perfect the security interests purported to be created by the foregoing Security Documents;

(ii)(x) any certificates representing Pledged Interests (as defined in the Security Agreement), together with executed and undated endorsements of transfer and (y) any promissory notes (to the extent required to be delivered pursuant to the Security Agreement) endorsed in blank, provided that not more than 65% of the total outstanding voting stock in or of any Excluded Subsidiary of the type referred to in clauses (iii) and (iv) of the definition thereof shall be pledged; and

(iii)certified copies of requests for information or copies, or equivalent reports as of a recent date, listing all effective financing statements that name Parent or any of its Restricted Subsidiaries as debtor and that are filed in the jurisdictions referred to in clause (i) above, together with copies of such other financing statements that name Parent or any of its Restricted Subsidiaries as debtor;

provided that, (i) where the Borrower has used commercially reasonable efforts, to the extent any security interest under a Security Document (other than any Collateral the security interest in which may be perfected by the filing of a UCC financing statement, intellectual property filings with the United States Patent and Trademark Office or the United States Copyright Office or the delivery or possession of stock certificates) is not perfected on the Effective Date, such perfection shall not be a condition to Borrowing on the Effective Date and (ii) any such unperfected security shall be perfected promptly after the Effective Date, and in no event later than 90 days after the Effective Date or such later date as the Administrative Agent may agree pursuant to Section 12.21.

5.13ABL Credit Agreement.  On the Effective Date, (a) the Administrative Agent shall have received true and correct copies of the Effective Date ABL Amendment, (b) the Effective Date ABL Amendment and all terms and conditions thereof shall be in form and substance reasonably satisfactory to the Administrative Agent, and (c) the Effective Date ABL Amendment shall be in full force and effect.

5.14Financial Statements.  The Joint Lead Arrangers shall have received (i) the audited consolidated balance sheet and related statement of income, stockholders’ deficit and cash flows for Parent for its 2015 fiscal year and (ii) unaudited consolidated balance sheets and related statements of income and cash flows of Parent for each of its respective subsequent fiscal quarters ended at least 45 days before the Effective Date.

5.15Solvency Certificate; Insurance Certificates.  On the Effective Date, the Administrative Agent shall have received:

(a)a solvency certificate from the chief financial officer or treasurer of Parent in the form of Exhibit G, certifying that after giving pro forma effect to the consummation of the Transaction, Parent and its Restricted Subsidiaries, on a consolidated basis, will be Solvent; and

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(b)certificates of insurance and related policy endorsements, each in form reasonably satisfactory to the Security Agent, complying with the requirements of Section 8.03 for the business and properties of Parent and its Subsidiaries, naming the Security Agent as an additional insured and/or as loss payee, as applicable, and stating, if commercially reasonably available, that such insurance shall not be canceled or materially altered without at least 30 days’ prior written notice by the insurer to the Security Agent.

In determining the satisfaction of the conditions specified in this Section 5, to the extent any item is required to be satisfactory to any Lender or the Administrative Agent, such item shall be deemed satisfactory to each Lender which has not notified the Administrative Agent in writing prior to the occurrence of the Effective Date that the respective item or matter does not meet its satisfaction.

SECTION 6.Additional Conditions Precedent to the Incurrence of Loans.  Except as otherwise provided in Section 2.14, the obligation of each Lender to make Loans is also subject, at the time of such Borrowing, to the satisfaction of the following conditions:

6.01No Default; Representations and Warranties.  At the time of such Borrowing and also after giving effect thereto (i) no Default or Event of Default shall have occurred and be continuing and (ii) all representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on the date of such Borrowing (it being understood and agreed that (x) any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date and (y) any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such date).

6.02Notice of Borrowing.  Prior to the making of the Loans, the Administrative Agent shall have received the Notice of Borrowing with respect to such Loans meeting the requirements of Section 2.03(a).

SECTION 7.Representations, Warranties and Agreements.  Each of Parent, Holdings and the Borrower makes the following representations, warranties and agreements, in each case after giving effect to the Transaction on the Effective Date:

7.01Company Status.  Each of Parent and each of its Restricted Subsidiaries (a) is a duly organized and validly existing Company in good standing under the laws of the jurisdiction of its organization, (b) has the Company power and authority to own its property and assets and to transact the business in which it is engaged and (c) is duly qualified and is authorized to do business and is in good standing in each jurisdiction where the ownership, leasing or operation of its property or the conduct of its business requires such qualifications except for failures to be so qualified or authorized which, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.

7.02Power and Authority.  Each Credit Party has the Company power and authority to execute, deliver and perform the terms and provisions of each of the Credit Documents to which it is party and has taken all necessary Company action to authorize the Transaction and the execution, delivery and performance by it of each of such Credit Documents.  Each Credit Party has duly executed and delivered each of the Credit Documents to which it is party, and each of such Credit Documents constitutes its legal, valid and binding obligation enforceable in accordance with its terms, except to the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law).

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7.03No Violation.  Neither the execution, delivery or performance by any Credit Party of the Credit Documents to which it is a party, nor compliance by it with the terms and provisions thereof, (a) will contravene any provision of any law, statute, rule or regulation or any order, writ, injunction or decree of any court or Governmental Authority except as could not reasonably be expected to have, either individually, or in the aggregate, a Material Adverse Effect, (b) (i) will conflict with or result in any breach of any of the terms, covenants, conditions or provisions of, or constitute a default under pursuant to the terms of any indenture, mortgage, deed of trust, credit agreement or loan agreement, or any other agreement, contract or instrument to which any Credit Party or any of its Restricted Subsidiaries is a party except as could not reasonably be expected to have, either individually, or in the aggregate, a Material Adverse Effect, or (ii) will result in the creation or imposition of (or the obligation to create or impose) any Lien (except pursuant to the Security Documents and the ABL Loan Documents) upon any of the property or assets of any Credit Party or any of its Restricted Subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, credit agreement or loan agreement, or any other agreement, contract or instrument material to Parent and its Restricted Subsidiaries (taken as a whole), in each case to which any Credit Party or any of its Restricted Subsidiaries is a party or (c) will violate any provision of the certificate or articles of incorporation, certificate of formation, limited liability company agreement or by-laws (or equivalent organizational documents), as applicable, of such Credit Party or any of its Restricted Subsidiaries.

7.04Approvals.  No order, consent, approval, license, authorization or validation of, or filing, recording or registration with (except for (a) those that have otherwise been obtained or made on or prior to the Effective Date and which remain in full force and effect on the Effective Date and (b) filings which are necessary to perfect the security interests created or intended to be created under the Security Documents and the ABL Loan Documents), or exemption by, any Governmental Authority or third party is required to be obtained or made by, or on behalf of, any Credit Party to authorize, or is required to be obtained or made by, or on behalf of, any Credit Party in connection with, (i) the execution, delivery and performance of any Credit Document or (ii) the legality, validity, binding effect or enforceability of any such Credit Document which in the case of clauses (i) and (ii), if not obtained or made, could reasonably be expected to result in a Material Adverse Effect.

7.05Financial Statements; Financial Condition; Projections.  (a) (x) The audited consolidated balance sheet of Parent at January 2, 2016, and the related consolidated statements of income and cash flows and stockholders’ deficit of Parent for the Fiscal Year of Parent ended on such date, furnished to the Administrative Agent prior to the Effective Date, present fairly in all material respects the consolidated financial position of Parent and its Restricted Subsidiaries at the date of said financial statements and the results for the respective periods covered thereby and (y) the unaudited consolidated balance sheet of the Parent at April 2, 2016 and the related consolidated statements of income and cash flows of the Parent for the Fiscal Quarter ended on such date, furnished to the Administrative Agent prior to the Effective Date, present fairly in all material respects the consolidated financial condition of the Parent and its Subsidiaries at the date of said financial statements and the results for the period covered thereby, subject to the absence of footnotes and normal year-end adjustments.  All such financial statements have been prepared in accordance with GAAP consistently applied except to the extent provided in the notes to said financial statements and subject, in the case of the unaudited financial statements, to normal year-end audit adjustments and the absence of footnotes.

(b)On and as of the Effective Date, and after giving effect to the Transaction and to all Indebtedness being incurred or assumed and Liens created by the Credit Parties in connection therewith, Parent and its Restricted Subsidiaries, taken as a whole, are Solvent.

(c)The Projections delivered to the Administrative Agent prior to the Effective Date have been prepared in good faith and are based on assumptions believed to be reasonable

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by the preparers thereof as of the Effective Date (it being recognized by the Administrative Agent and the Lenders, however, that projections as to future events are not to be viewed as facts and that the actual results during the period or periods covered by the Projections may differ from the projected results included in such Projections and such difference may be material).

(d)Since January 2, 2016, nothing has occurred that has had, or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.

7.06Litigation.  There are no actions, suits or proceedings pending against or, to the knowledge of Parent, Holdings and the Borrower, threatened in writing against Parent or any of its Restricted Subsidiaries that has had, or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.

7.07True and Complete Disclosure.  All factual information (taken as a whole) furnished by or on behalf of Parent, Holdings or the Borrower in writing to the Administrative Agent (including, without limitation, information contained in the Credit Documents) for purposes of or in connection with this Agreement is true and accurate in all material respects on the date as of which such information is dated or certified and not incomplete by omitting to state any material fact necessary to make such information (taken as a whole) not materially misleading at such time in light of the circumstances under which such information was provided, it being understood and agreed that for purposes of this Section 7.07, such factual information shall not include the Projections, any pro forma financial information or other forward-looking information or information relating generally to the economy or the industry in which Parent and its Restricted Subsidiaries operate.

7.08Use of Proceeds; Margin Regulations.  (a) All proceeds of the Loans made on the Effective Date shall be used solely to (i) finance the Refinancing, (ii) pay all fees and expenses incurred in connection with the Transaction and (iii) for general corporate purposes.

(b)No part of the proceeds of any Term Loan will be used to purchase or carry any Margin Stock or to extend credit for the purpose of purchasing or carrying any Margin Stock, in each case in a manner that violates the provisions of Regulation T, U or X. Neither the making of any Loan nor the use of the proceeds thereof will violate the provisions of Regulation T, U or X.

7.09Tax Returns and Payments.  Each of Parent and each of its Restricted Subsidiaries has timely filed or caused to be timely filed with the appropriate taxing authority all returns, statements, forms and reports for taxes (the “Returns”) required to be filed by, or with respect to the income, properties or operations of, Parent and/or any of its Restricted Subsidiaries except where the failure to do any of the foregoing could not reasonably be expected to have, either individually, or in the aggregate, a Material Adverse Effect. Each of Parent and each of its Restricted Subsidiaries has paid all taxes and assessments payable by it which have become due, other than those (i) that are being contested in good faith and with respect to which reserves in conformity with GAAP (to the extent required thereby) have been provided on the books of Parent or the relevant Restricted Subsidiary or (ii) as to which the failure to pay could not reasonably be expected to have, either individually, or in the aggregate, a Material Adverse Effect.  There is no action, suit, proceeding, investigation, audit or claim now pending or, to the best knowledge of Parent or any of its Restricted Subsidiaries, threatened by any authority regarding any taxes relating to Parent or any of its Restricted Subsidiaries except as could not reasonably be expected to have, either individually, or in the aggregate, a Material Adverse Effect.  As of the Effective Date, neither Parent nor any of its Restricted Subsidiaries has entered into an agreement or waiver or been requested to enter into an agreement or waiver extending any statute of limitations relating to the payment or collection of taxes of Parent or any of its Restricted Subsidiaries, or is aware of any circumstances that would cause the taxable years or other taxable periods of Parent or any of its

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Restricted Subsidiaries not to be subject to the normally applicable statute of limitations except, in each case, as could not reasonably be expected to have, either individually, or in the aggregate, a Material Adverse Effect.

7.10Compliance with ERISA.  Except as could not reasonably be expected to have, either individually, or in the aggregate, a Material Adverse Effect, none of Parent, any Restricted Subsidiary of Parent or any ERISA Affiliate maintains or contributes to (or has any obligation to contribute to), or has liability (including, without limitation, any indirect, contingent or secondary liability) with respect to, any Plan, or any Multiemployer Plan or any Foreign Pension Plan, or has any such liability with respect to any pension plan as defined in Section 3(2) of ERISA that is subject to Section 302 or Title IV of ERISA or Section 412 of the Code or any multiemployer plan as defined in Section 4001(c)(3) of ERISA that is subject to Title IV of ERISA, which is not currently maintained or contributed to by Parent, any Restricted Subsidiary of Parent or any ERISA Affiliate.

7.11Security Documents.  The provisions of the Security Agreement are effective to create in favor of the Security Agent for the benefit of the Secured Creditors a legal and valid security interest in all right, title and interest of the Credit Parties in all of the Security Agreement Collateral, and the Security Agent, for the benefit of the Secured Creditors, has (or upon the filing of financing statements and intellectual property filings, entry into of Control Agreements and the taking of possession by the Security Agent of the Security Agreement Collateral with respect to which a security interest may be perfected only by possession will have) a First Priority (subject to the Intercreditor Agreement) perfected (if and to the extent perfection may be achieved by the filings and/or actions required to be taken hereby or by the applicable Security Documents) security interest in all right, title and interest in all of the Security Agreement Collateral described therein (except for Deposit Accounts and Securities Accounts or for Collateral for which possession or control is required for perfection and such possession or control is not otherwise required by the Security Agreement), subject to no other Liens other than Permitted Liens (it being understood that the Permitted Liens described in Section 9.01(d) are subject to the terms of the Intercreditor Agreement).  The recordation of (i) the Grant of Security Interest in U.S. Patents and (ii) the Grant of Security Interest in U.S. Trademarks in the respective forms attached to the Security Agreement, in each case in the United States Patent and Trademark Office, together with UCC financing statements made pursuant to the Security Agreement, will create, as may be perfected by such filings and recordation, a perfected security interest in the United States trademarks and patents covered by the Security Agreement, and the recordation of the Grant of Security Interest in U.S. Copyrights in the form attached to the Security Agreement with the United States Copyright Office, will create, as may be perfected by such filings and recordation, a perfected security interest in the United States copyrights covered by the Security Agreement.

7.12Properties.  All Real Property owned by Parent or any of its Restricted Subsidiaries as of the Effective Date is correctly set forth in Schedule 7.12. Each of Parent and each of its Restricted Subsidiaries has good and marketable title to, or valid leasehold interest in, all material properties owned or leased by such entity (including each Mortgaged Property), except where such failure could not reasonably be expected to have individually or in the aggregate, a Material Adverse Effect.

7.13OFAC.  Neither Parent, Holdings, the Borrower nor any of their respective Subsidiaries (i) is a Person whose property or interest in property is blocked or that has been determined to be subject to blocking pursuant to Section 1 of Executive Order 13224 of September 23, 2001 Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)), (ii) does knowingly engage in any dealings or transactions prohibited by Section 2 of such executive order, or otherwise knowingly associate with any such person in any manner violative of Section 2, and (iii) is a Person on the list of Specially Designated Nationals and Blocked Persons published by the Office of Foreign Assets Control of the United States Department

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of the Treasury on June 24, 2003, as updated from time to time, or the subject of the limitations or prohibitions under any other United States Department of the Treasury’s Office of Foreign Assets Control regulation or executive order.

7.14Patriot Act/FCPA.  Parent, Holdings, the Borrower and their respective Subsidiaries are in compliance in all material respects with the Patriot Act. No part of the proceeds of the Loans will be used, directly or indirectly, in violation of the laws of the United States or other jurisdiction, for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the FCPA.

7.15Compliance with Statutes, etc.  Each of Parent and each of its Restricted Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities in respect of the conduct of its business and the ownership of its property (including, without limitation applicable statutes, regulations, orders and restrictions relating to environmental standards and controls), except such non-compliances as could not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

7.16Investment Company Act.  No Credit Party nor any Restricted Subsidiary of any Credit Party is an “investment company” or is subject to registration as an “investment company under the Investment Company Act of 1940.

7.17Environmental Matters.  Except, as could not reasonably be expected to have, either individually, or in the aggregate, a Material Adverse Effect:

(a) (i) each of Parent and each of its Restricted Subsidiaries is in compliance with all applicable Environmental Laws and the requirements of any permits issued under such Environmental Laws; (ii) there are no pending or, to the knowledge of Parent, Holdings and the Borrower, Environmental Claims threatened in writing against Parent or any of its Restricted Subsidiaries or any Real Property owned, leased or operated by Parent or any of its Restricted Subsidiaries (including any such claim arising out of the ownership, lease or operation by Parent or any of its Restricted Subsidiaries of any Real Property formerly owned, leased or operated by Parent or any of its Restricted Subsidiaries but no longer owned, leased or operated by Parent or any of its Restricted Subsidiaries); and (iii) there are no facts, circumstances, conditions or occurrences with respect to the business or operations of Parent or any of its Restricted Subsidiaries, or any Real Property owned, leased or operated by Parent or any of its Restricted Subsidiaries (including, to the knowledge of Parent, Holdings and the Borrower, any Real Property formerly owned, leased or operated by Parent or any of its Restricted Subsidiaries but no longer owned, leased or operated by Parent or any of its Restricted Subsidiaries) or, to the knowledge of Parent, Holdings and the Borrower, any property adjoining or adjacent to any such Real Property that could be reasonably expected to form the basis of an Environmental Claim against Parent or any of its Restricted Subsidiaries or any Real Property owned, leased or operated by Parent or any of its Restricted Subsidiaries; and

(b)Hazardous Materials have not at any time been generated, used, treated or stored on, or transported to or from, or Released on or from, any Real Property currently owned, leased or operated by Parent or any of its Restricted Subsidiaries or, to the knowledge of Parent, Holdings and the Borrower, any Real Property formerly owned, leased or operated by Parent or any of its Restricted Subsidiaries or property adjoining or adjacent to any Real Property, where such generation, use, treatment, storage, transportation or Release has violated any applicable Environmental Law or could reasonably be expected to give rise to an Environmental Claim.

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7.18Employment and Labor Relations.  Neither Parent nor any of its Restricted Subsidiaries is engaged in any unfair labor practice that could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect.  There is (a) no unfair labor practice complaint pending against Parent or any of its Restricted Subsidiaries or, to the knowledge of Parent and the Borrower, threatened in writing against any of them, before the National Labor Relations Board, and no grievance or arbitration proceeding arising out of or under any collective bargaining agreement is so pending against Parent or any of its Restricted Subsidiaries or, to the knowledge of Parent and the Borrower, threatened in writing against any of them, and (b) no strike, labor dispute, slowdown or stoppage pending against Parent or any of its Restricted Subsidiaries or, to the knowledge of Parent and the Borrower, threatened in writing against Parent or any of its Restricted Subsidiaries, except, with respect to any matter specified in clauses (a) or (b) above, either individually or in the aggregate, such as could not reasonably be expected to have a Material Adverse Effect.

7.19Intellectual Property, etc. Each of Parent and each of its Restricted Subsidiaries owns, licenses, possesses or otherwise has the right to use all of the trademarks, service marks, trade names, domain names, copyrights, patents, patent rights, software, know-how, trade secrets, database rights, design rights and other intellectual property rights (collectively, “IP Rights”) that are reasonably necessary for the operation of its businesses as currently conducted, except to the extent the failure to own, license, possess or otherwise have the right to use such IP Rights, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.

SECTION 8.Affirmative Covenants. Each of Parent, Holdings and the Borrower hereby covenants and agrees that on and after the Effective Date and until the Loans (together with interest thereon), Fees and all other Obligations (other than indemnities described herein and reimbursement obligations under Section 12.01 which are, in either case, not then due and payable) incurred hereunder, are paid in full:

8.01Information Covenants.  The Borrower will furnish to the Administrative Agent for delivery to each Lender:

(a)Quarterly Financial Statements.  Within 45 days after the close of each of the first three Fiscal Quarters in each Fiscal Year of Parent (commencing with its Fiscal Quarter ending July 2, 2016), (i) the consolidated balance sheet of Parent and its Subsidiaries as at the end of such Fiscal Quarter and the related consolidated statements of income and statement of cash flows for such Fiscal Quarter and for the elapsed portion of the Fiscal Year ended with the last day of such Fiscal Quarter, in each case, setting forth comparative figures for the corresponding Fiscal Quarter in the prior Fiscal Year and comparable budgeted figures for such Fiscal Quarter as set forth in the respective budget delivered pursuant to Section 8.01(c) (if applicable), all of which shall be certified by an Authorized Officer of Parent that they fairly present in all material respects in accordance with GAAP the consolidated financial condition of Parent and its Subsidiaries as of the dates indicated and the consolidated results of their operations for the periods indicated, subject to normal year-end audit adjustments and the absence of footnotes, and (ii) management’s discussion and analysis of financial condition and results of operations with respect to such Fiscal Quarter.

(b)Annual Financial Statements.  Within 95 days after the close of each Fiscal Year of Parent commencing after the Effective Date, (i) the consolidated balance sheet of Parent and its Subsidiaries as at the end of such Fiscal Year and the related consolidated statements of income and statement of cash flows for such Fiscal Year setting forth comparative figures for the preceding Fiscal Year and certified by PricewaterhouseCoopers LLP or other independent certified public accountants of recognized national standing, accompanied by an opinion of such accounting firm (which opinion shall be without a “going concern” or like qualification or exception and without any qualification or exception as

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to scope of audit (other than any exception, explanatory paragraph or qualification that is expressly solely with respect to, or expressly resulting solely from (i) an upcoming maturity date under Indebtedness occurring within one year from the time such opinion is delivered or (ii) any potential inability to satisfy a financial covenant on a future date or in a future period) except for qualifications relating to changes in accounting principles or practices reflecting changes in GAAP and required or approved by such independent certified public accountants), and (ii) management’s discussion and analysis of financial condition and results of operations with respect to such Fiscal Year.

(c)Budgets.  No later than the 95th day of each Fiscal Year of Parent commencing after the Effective Date, a budget (including budgeted statements of income, cash flow statement and balance sheets for the Parent and its Restricted Subsidiaries on a consolidated basis) for each of the twelve months of such Fiscal Year prepared in reasonable detail setting forth, with appropriate discussion, the principal assumptions upon which such budget is based and as customarily prepared by management of the Parent for its internal use.

(d)Officer’s Certificates.  At the time of the delivery of the financial statements provided for in Sections 8.01(a) and (b), a compliance certificate from an Authorized Officer of the Borrower or Parent in the form of Exhibit H certifying on behalf of the Borrower or Parent that, to such officer’s knowledge after due inquiry, no Default or Event of Default has occurred and is continuing or, if any Default or Event of Default has occurred and is continuing, specifying the nature and extent thereof, which certificate shall (i) set forth a specification of any change in the identity of the Restricted Subsidiaries and Unrestricted Subsidiaries as at the end of such Fiscal Year or Fiscal Quarter, as the case may be, from the Restricted Subsidiaries and Unrestricted Subsidiaries, respectively, provided to the Administrative Agent at the end of the previous Fiscal Year or Fiscal Quarter (or from the Effective Date with respect to the first compliance certificate delivered hereunder after the Effective Date), as the case may be, and (ii) if delivered with the financial statements required by Section 8.01(b), commencing with the Fiscal Year ending December 30, 2017, set forth in reasonable detail the amount of (and the calculations required to establish the amount of) Excess Cash Flow, the Available Amount for the respective Excess Cash Payment Period and the amount of any required payment under Section 4.02(f) in respect of such Excess Cash Flow Payment Period and the amounts, if any, charged to the Available Amount in such Fiscal Year.

(e)Notice of Default, Litigation and Material Adverse Effect.  Promptly, and in any event within five Business Days after an Authorized Officer of the Borrower or any of its Restricted Subsidiaries obtains actual knowledge thereof, notice of (i) the occurrence of any event which constitutes a Default or an Event of Default, (ii) any litigation or governmental investigation or proceeding pending against Parent or any of its Restricted Subsidiaries which, either individually or in the aggregate, has had, or could reasonably be expected to have, a Material Adverse Effect or (iii) any other event, change or circumstance that has had, or could reasonably be expected to have, a Material Adverse Effect. All such notices shall describe in reasonable detail the nature of the event and Parent’s or such Restricted Subsidiary’s response thereto.

(f)[Reserved].

(g)Environmental Matters.  Promptly after any officer of Parent or any of its Restricted Subsidiaries obtains knowledge thereof, notice of one or more of the following environmental matters to the extent that such environmental matters, either individually or when aggregated with all other such environmental matters, could reasonably be expected to have a Material Adverse Effect:

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(i) any pending or threatened Environmental Claim against Parent or any of its Restricted Subsidiaries or any Real Property owned, leased or operated by Parent or any of its Restricted Subsidiaries;

(ii) any condition or occurrence on or arising from any Real Property owned, leased or operated by Parent or any of its Restricted Subsidiaries that (A) results in noncompliance by Print or any of its Restricted Subsidiaries with any applicable Environmental Law or (B) could reasonably be expected to form the basis of an Environmental Claim against Parent or any of its Restricted Subsidiaries or any such Real Property;

(iii) any condition or occurrence on any Real Property owned, leased or operated by Parent or any of its Restricted Subsidiaries that could reasonably be expected to cause such Real Property to be subject to any restrictions on the ownership, lease, occupancy, use or transferability by Parent or any of its Restricted Subsidiaries of such Real Property under any Environmental Law; and

(iv) the taking of any removal or remedial action in response to the actual or alleged presence of any Hazardous Material on any Real Property owned, leased or operated by Holdings or any of its Restricted Subsidiaries as required by any Environmental Law or any governmental or other administrative agency; provided that in any event Parent shall deliver to the Administrative Agent all notices received by Parent or any of its Restricted Subsidiaries from any government or governmental agency under, or pursuant to, CERCLA which identify Parent or any of its Restricted Subsidiaries as potentially responsible parties for remediation costs or which otherwise notify Parent or any of its Restricted Subsidiaries of potential liability under CERCLA, except where such potential liability could not reasonably be expected to exceed $2,500,000.

All such notices shall describe in reasonable detail the nature of the claim, investigation, condition, occurrence or removal or remedial action and Parent’s or such Restricted Subsidiary’s response thereto.

(h)Other Information.  From time to time, such other information or documents (financial or otherwise) with respect to Parent or any of its Restricted Subsidiaries as the Administrative Agent may reasonably request.

provided that, notwithstanding the foregoing:

(i)no such information or documents shall be required to be provided to the extent the provision thereof would violate a confidentiality undertaking of Parent or any Restricted Subsidiary, or would result in a loss of attorney-client privilege, or such information or documents constitute attorney work product;

(ii)the obligations in Sections 8.01(a) and (b) may be satisfied with respect to financial information of Parent and its Subsidiaries by furnishing the Form 10-K or 10-Q of Parent (or any direct or indirect parent of Parent) filed with the SEC; provided that, (i) to the extent such information relates to a parent of Parent, such information is accompanied by consolidating information that explains (if applicable) in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to Parent and its Restricted Subsidiaries on a standalone basis, on the other hand and (ii) to the extent such information is in lieu of information required to be provided under Section 8.01(b), such materials are accompanied by a report and opinion of PricewaterhouseCoopers LLP or other

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independent certified public accountants of recognized national standing, accompanied by an opinion of such accounting firm (which opinion shall be without a “going concern” or like qualification or exception and without any qualification or exception as to scope of audit (other than any exception, explanatory paragraph or qualification that is expressly solely with respect to, or expressly resulting solely from (i) an upcoming maturity date under Indebtedness occurring within one year from the time such opinion is delivered or (ii) any potential inability to satisfy a financial covenant on a future date or in a future period) except for qualifications relating to changes in accounting principles or practices reflecting changes in GAAP and required or approved by such independent certified public accountants); and

(iii)documents required to be delivered pursuant to Section 8.01 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower or Parent (or any other direct or indirect parent of the Borrower) posts such documents, or provides a link thereto on its website on the Internet; or (ii) on which such documents are posted on the Borrower’s behalf on the Platform.

8.02Books, Records and Inspections; Conference Calls.  (a) Parent will, and will cause each of its Restricted Subsidiaries to, keep proper books of record and accounts in a manner to allow financial statements to be prepared in all material respects in conformity with GAAP (or applicable local standards) consistently applied in respect of all material financial transactions and matters involving the assets and business of Parent and its Restricted Subsidiaries.  Parent will, and will cause each of its Restricted Subsidiaries to, permit officers and designated representatives of the Administrative Agent and the Security Agent (a) to visit and inspect, under guidance of officers of Parent or such Restricted Subsidiary, any of the properties of Parent or such Restricted Subsidiary and (b) to examine the books of account of Parent or such Restricted Subsidiary and discuss the affairs, finances and accounts of Parent or such Restricted Subsidiary with, and be advised as to the same by, its and their officers and independent accountants, all upon reasonable prior notice and at such reasonable times and intervals and to such reasonable extent as the Administrative Agent or the Security Agent may reasonably request (and subject, in the case of any such meetings or advice from such independent accountants, to such accountants’ customary policies and procedures); provided that (i) so long as no Event of Default has occurred and is continuing, no more than one such visitation and inspection referred to in preceding clause (a) may occur in any Fiscal Year and (ii) the Administrative Agent and the Security Agent shall give Parent the opportunity to participate in any discussions with Parent’s independent public accountants. Notwithstanding the foregoing, none of Parent or any of its Restricted Subsidiaries will be required to disclose, permit the inspection, examination or making copies or abstracts of, or discussion of, any document, information or other matter (i) that constitutes non-financial trade secrets or non-financial proprietary information, (ii) in respect of which disclosure to the Administrative Agent, the Security Agent or any Lender (or their respective representatives or contractors) is prohibited by law or any binding third-party agreement or (iii) that is subject to attorney-client or similar privilege or constitutes attorney work product.

(b)At the request of the Administrative Agent, the Borrower will within 15 Business Days following such request (or such longer period as the Administrative Agent shall agree), hold one quarterly conference call or teleconference, at a time selected by the Borrower and reasonably acceptable to the Administrative Agent, with all of the Lenders that choose to participate, to review the financial results of the previous Fiscal Quarter and the financial condition of the Borrower and its Restricted Subsidiaries and the budgets presented for the current Fiscal Quarter of the Borrower and its Restricted Subsidiaries if applicable (it being understood that following the consummation of an IPO, the Borrower shall not be required to hold any such quarterly conference call or teleconference if it (or any direct or indirect parent of the Borrower) holds quarterly investor earnings calls).

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8.03Maintenance of Property; Insurance.  (a) Parent will, and will cause each of its Restricted Subsidiaries to, (i) keep all property necessary to the business of Parent and its Restricted Subsidiaries in good working order and condition, ordinary wear and tear excepted and subject to the occurrence of casualty events, (ii) maintain with financially sound and reputable insurance companies insurance on all such property and against all such risks as is consistent and in accordance with industry practice for companies similarly situated owning similar properties and engaged in similar businesses as Parent and its Restricted Subsidiaries, and (iii) furnish to the Administrative Agent, upon its request therefor, information as to the insurance carried.  The provisions of this Section 8.03 shall be deemed supplemental to, but not duplicative of, the provisions of any Security Documents that require the maintenance of insurance.

(b)Except as otherwise agreed by the Administrative Agent, Parent will, and will cause each of the Credit Parties to, at all times keep its property insured in favor of the Security Agent, and all policies or certificates (or certified copies thereof) with respect to such insurance shall be endorsed to the Security Agent’s satisfaction for the benefit of the Security Agent (including, without limitation, by naming the Security Agent as loss payee and/or additional insured) and, to the extent available on a commercially reasonable basis, shall state that such insurance policies shall not be canceled or materially altered without at least 30 days’ prior written notice thereof (10 days in the case of non-payment) by the respective insurer to the Security Agent.

(c)If at any time any Mortgaged Property is a Flood Hazard Property, Parent or the relevant Credit Party, as applicable, shall keep and maintain at all times flood insurance on terms and in an amount sufficient to comply with the rules and regulations promulgated under the National Flood Insurance Act of 1968 and Flood Disaster Protection Act of 1973, each as amended from time to time.  In the case of a Mortgaged Property listed on Schedule 8.12 that is a Flood Hazard Property or any Material Real Property that is acquired after the Effective Date that is a Flood Hazard Property, any evidence of the flood insurance required to be maintained under this Section 8.03(c) shall be delivered to the Security Agent prior to the effective date of the Mortgage in respect of such Flood Hazard Property and such evidence of flood insurance shall be subject to the reasonable approval of the Security Agent.

(d)If Parent or any of its Restricted Subsidiaries shall fail to maintain insurance in accordance with this Section 8.03, the Administrative Agent shall have the right (but shall be under no obligation) to procure such insurance and Parent agrees to reimburse the Administrative Agent for all costs and expenses of procuring such insurance.

8.04Existence; Franchises.  Parent will, and will cause each of its Restricted Subsidiaries to, do or cause to be done, all things necessary to preserve and keep in full force and effect its existence and its rights (charter and statutory), franchises, licenses, permits, copyrights, trademarks, patents and approvals; provided, however, that nothing in this Section 8.04 shall prevent (a) sales of assets and other transactions by Parent or any of its Restricted Subsidiaries in accordance with Section 9.02 or (b) the withdrawal or lapse by Parent or any of its Restricted Subsidiaries of its qualification as a foreign Company in any jurisdiction or the failure to preserve or keep in full force and effect any other right, license, franchise, intellectual property or approval if such withdrawal, lapse or failure could not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

8.05Compliance with Statutes, etc.  Parent will, and will cause each of its Restricted Subsidiaries to, comply with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities in respect of the conduct of its business and the ownership of its property (including, without limitation, FCPA, OFAC (including sanctions administered and enforced thereunder) applicable statutes, regulations, orders and restrictions relating to environmental

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standards and controls), except such non-compliances as could not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

8.06Compliance with Environmental Laws.  (a) Parent will comply, and will cause each of its Restricted Subsidiaries to comply, with all Environmental Laws and permits applicable to, or required by, the ownership, lease or use of its Real Property now or hereafter owned, leased or operated by Parent or any of its Restricted Subsidiaries, and will promptly pay or cause to be paid all costs and expenses incurred in connection with such compliance, except to the extent noncompliance or failure to pay could not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, and will keep or cause to be kept all such Real Property free and clear of any Liens imposed pursuant to such Environmental Laws, except Permitted Liens.

(b) (i) After the receipt by the Administrative Agent or any Lender of any notice of the type described in Section 8.01(g), (ii) at any time that Parent or any of its Restricted Subsidiaries are not in compliance with Section 8.06(a) or (iii) in the event that the Administrative Agent has exercised any of the remedies pursuant to Section 10.01, Parent and the Borrower will (in each case) provide, at the sole expense of Parent and the Borrower, at the request of the Administrative Agent, an environmental site assessment report concerning any relevant Real Property owned, leased or operated by the Borrower or any of its Restricted Subsidiaries, prepared by an environmental consulting firm reasonably approved by the Administrative Agent, indicating the presence or absence of Hazardous Materials and the potential cost of any removal or remedial action in connection with such Hazardous Materials on such Real Property.  If Parent and the Borrower fail to provide the same within 30 days after such request was made, the Administrative Agent may order the same, the cost of which shall be borne by Parent and the Borrower, and Parent and the Borrower shall grant and hereby grant to the Administrative Agent and the Lenders and their respective agents access to such Real Property and specifically grant the Administrative Agent and the Lenders an irrevocable non-exclusive license, subject to the rights of tenants, to undertake such an assessment at any reasonable time upon reasonable notice to Parent or the Borrower, all at the sole expense of Parent and the Borrower

8.07ERISA.

(a)Parent, Holdings, Borrower and their respective ERISA Affiliates shall each (i) maintain all Plans that are presently in existence or may, from time to time, come into existence, in compliance with the terms of any such Plan, ERISA, the Code and all other applicable laws, and (ii) make or cause to be made contributions to all Plans in a timely manner and in a sufficient amount to comply with the requirements of Sections 302 and 303 of ERISA and Sections 412 and 430 of the Code, in each case except to the extent the failure to do so would not reasonably be expected to have a Material Adverse Effect.

(b)Parent and each of its applicable Restricted Subsidiaries shall ensure that all Foreign Pension Plans administered by it or into which it makes payments obtains or retains (as applicable) registered status under and as required by applicable law and is administered in a timely manner in all respects in compliance with all applicable laws, except where the failure to do any of the foregoing, either individually or in the aggregate, could not be reasonably likely to result in a Material Adverse Effect.

(c)Promptly and in any event within 10 days after Parent, Holdings, Borrower, a Restricted Subsidiary or any of their ERISA Affiliates knows or has reason to know that any ERISA Event has occurred, a statement of an Authorized Officer of the relevant entity describing such ERISA Event and the action, if any, that the relevant entity or its ERISA Affiliate has taken and proposes to take with respect thereto.

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8.08End of Fiscal Years.  Parent will cause its and each of its Restricted Subsidiaries’ Fiscal Years to end on a date specified for such Fiscal Year end in the definition of “Fiscal Year”; provided that (i) any Acquired Entity or Business may have a different fiscal year and fiscal quarter ends for a period not exceeding 270 days following the acquisition thereof (or such longer period as the Administrative Agent may agree) and (ii) the Borrower or Parent may, upon written notice to the Administrative Agent, change its Fiscal Year to any other fiscal year reasonably acceptable to the Administrative Agent, in which case, the Borrower and the Administrative Agent will, and are hereby authorized by the Lenders to, make any adjustments to this Agreement that are necessary to reflect such change in fiscal year.

8.09Ratings.  Parent shall use commercially reasonable efforts to obtain and maintain (i) a public corporate family rating of the Borrower or Parent and a rating of the Loans, in each case from Moody’s, and (ii) a public corporate credit rating of the Borrower or Parent and a rating of the Loans, in each case from S&P (but, in each case, not a specific rating).

8.10Payment of Taxes.  Parent will pay and discharge, and will cause each of its Restricted Subsidiaries to pay and discharge, all material taxes, assessments and governmental charges or levies imposed upon it or upon its income or profits or upon any properties belonging to it, prior to the date on which penalties attach thereto, and all material lawful claims which, if unpaid, would reasonably be expected to become a Lien or charge upon any material properties of Parent or any of its Restricted Subsidiaries not otherwise permitted under Section 9.01; provided that neither Parent nor any of its Restricted Subsidiaries shall be required to pay or discharge any such tax, assessment, charge, governmental charge, levy or claim (i) which is being contested in good faith and by proper proceedings if it has maintained adequate reserves with respect thereto in accordance with GAAP (to the extent required thereby) or (ii) where the failure to pay or discharge could not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.

8.11Use of Proceeds.  The Borrower will use the proceeds of the Loans only as provided in Section 7.08.

8.12Additional Security; Further Assurances; etc.  (a) Parent will, and will cause each other Credit Party to grant to the Security Agent for the benefit of the Secured Creditors security interests and Mortgages in (i) the Mortgaged Properties listed on Schedule 8.12 attached hereto within 120 days (or such longer period as the Administrative Agent may agree) following the Effective Date and (ii) the other assets and Material Real Property of Parent or other Credit Party acquired after the Effective Date as are not automatically subject to a Lien pursuant to pre-existing Security Documents, but solely to the extent that such other assets and Material Real Property would have been covered by the original Security Documents had such Credit Party owned them on the Effective Date, within 120 days (or such longer period as the Administrative Agent may agree) following Administrative Agent’s reasonable request therefor (or as otherwise may be required pursuant to the Intercreditor Agreement), in each case subject to Permitted Liens and subject to the limitations and exceptions of the Security Documents (collectively, the “Additional Security Documents”); provided, however, that, the Borrower shall provide not less than 30 days’ prior written notice to the Security Agent (or such shorter period as the Administrative Agent shall agree) (which shall in turn promptly notify the Lenders) of any proposed execution and delivery of a Mortgage in respect of a Flood Hazard Property.  Notwithstanding the foregoing or anything else contained herein, this Section 8.12(a) shall not apply to (i) any owned Real Property other than Material Real Property, (ii) any motor vehicles, or (iii) any other assets expressly excluded from Security Agreement Collateral or any other Collateral under any of the Security Documents.

(b)Parent will, and will cause each of the other Credit Parties to, at the expense of the Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Security Agent

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from time to time such schedules, confirmatory assignments, financing statements (including, but not limited to, UCC fixture filings to be filed along with the applicable Mortgages), transfer endorsements, powers of attorney, certificates, control agreements and other assurances or instruments to the extent required by this Agreement or any of the Security Documents, subject to the terms of the Intercreditor Agreement; provided that in the case of any such agreements, assurances or instruments that require the consent of, or any action by, a third party, Parent and the other Credit Parties shall only be required to use commercially reasonable efforts to obtain the same.  Furthermore, in the case of additional Real Property Collateral, Parent will, and will cause the other Credit Parties to, deliver to the Security Agent such customary opinions of counsel in each jurisdiction in which the mortgaged Real Property is located with respect to the enforceability and perfection of the Mortgages in form and substance reasonably satisfactory to the Security Agent, such customary corporate formalities opinions of counsel in each jurisdiction in which the Borrower or applicable Guarantor that owns the Mortgaged Property is formed or organized in form and substance reasonably satisfactory to the Security Agent, surveys, and First Priority Mortgage Policies with title insurance coverage reasonably satisfactory to the Security Agent.

(c)[Reserved].

(d)Prior to the date of delivery of any Mortgage, (i) the Security Agent shall have obtained a “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each parcel of Mortgaged Property covered by such Mortgage, and (ii) in the event any portion of a Mortgaged Property includes a structure with at least two walls and a roof (a “building”) and, as shown in the related flood hazard determination, such building is located in a special flood hazard area (a “Flood Hazard Property”), then (A) the Security Agent shall deliver to the Borrower a notice about special flood hazard area status and flood disaster assistance (a “Flood Hazard Notice”), and (B) the Borrower or the relevant Credit Party, as applicable, shall deliver to the Security Agent (1) a duly executed Flood Hazard Notice and (2) evidence of flood insurance required by Section 8.03(c).

(e)The Borrower agrees that each action required by clauses (a) through (d) of this Section 8.12 shall be completed within 120 days after such action is requested to be taken by the Administrative Agent (or such longer period of time as may be agreed to by the Administrative Agent in its discretion); provided that, in no event will Parent or any of its Restricted Subsidiaries be required to take any action, other than using its commercially reasonable efforts, to obtain consents from, or actions by, third parties with respect to its compliance with this Section 8.12.

(f)Upon the formation or acquisition of any new Wholly-Owned Domestic Subsidiary that is a Restricted Subsidiary by any Credit Party: (i) within 60 days after such formation or acquisition (or such longer period as the Administrative Agent may agree in its sole discretion), the applicable Credit Party shall pledge the capital stock or other Equity Interests of such new Wholly-Owned Domestic Subsidiary (other than any Subsidiary the Equity Interests of which are not required to be pledged under the terms of the Security Agreement) pursuant to, and to the extent required by, the Security Agreement, and shall deliver to the Security Agent the certificates, if any, representing such stock or other Equity Interests, together with stock or other appropriate powers duly executed in blank, to the extent required by the Security Agreement, (ii) within 60 days after such formation or acquisition (or such longer period as the Administrative Agent may agree in its sole discretion), the Borrower shall cause each such new Wholly-Owned Domestic Subsidiary (other than any Excluded Subsidiary) to become a party to each of the Guaranty, the Security Agreement, the Intercompany Subordination Agreement and, if applicable, execute a Control Agreement, a Patent Security Agreement, a Trademark Security Agreement and a Copyright Security Agreement, and to acknowledge the Intercreditor Agreement, and (iii) the Borrower shall, and shall cause each such new Wholly-Owned Domestic Subsidiary to, to the extent requested by the Administrative Agent, take all other actions required pursuant to this Section 8.12.  In addition, each new Wholly-Owned Domestic Subsidiary that is required to become a Subsidiary

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Guarantor after the Effective Date shall execute and deliver, or cause to be executed and delivered, all other relevant documentation (including customary opinions of counsel) of the type described in Sections 5.02, 5.03, and 5.04 as such new Wholly-Owned Domestic Subsidiary would have had to deliver if such new Subsidiary were a Credit Party on the Effective Date.

(g)In addition, promptly after any Restricted Subsidiary of the Borrower ceases to constitute an “Excluded Subsidiary” or a “Pass-Through Foreign Holding Company” in accordance with the respective definitions thereof, the Borrower shall cause such Restricted Subsidiary to take all actions required by Section 8.12 as if such Restricted Subsidiary were then established, created or acquired.

8.13Change of Name.  Parent or the Borrower will furnish to the Administrative Agent promptly (and in any event within 30 days or such longer period as reasonably agreed to by the Administrative Agent) written notice of any change (i) in any Credit Party’s legal name (as set forth in its certificate of organization, incorporation or like document), or (ii) in the jurisdiction of incorporation or organization of any Credit Party or in the form of its organization.

SECTION 9.Negative Covenants.  Each of Parent and the Borrower hereby covenants and agrees that on and after the Effective Date and until the Total Commitment has terminated and the Loans (together with interest thereon), Fees and all other Obligations (other than any indemnities described herein and reimbursement obligations under Section 12.01 which, in either case, are not then due and payable) incurred hereunder, are paid in full:

9.01Liens.  Parent will not, and will not permit any of its Restricted Subsidiaries to, create, incur, assume or suffer to exist any Lien upon any property or assets (real or personal, tangible or intangible) of Parent or any of its Restricted Subsidiaries, whether now owned or hereafter acquired; provided that the provisions of this Section 9.01 shall not prevent the creation, incurrence, assumption or existence of the following (Liens described below are herein referred to as “Permitted Liens”):

(a)Liens for taxes, assessments or governmental charges or levies (i) that are not yet overdue for a period of more than 30 days or (ii) that are being contested in good faith and by appropriate proceedings for which adequate reserves have been established in accordance with GAAP (to the extent required thereby);

(b)Liens in respect of property or assets of Parent or any of its Restricted Subsidiaries that were incurred in the ordinary course of business and do not secure Indebtedness for borrowed money, such as statutory or common law Liens of carriers’, warehousemen’s, materialmen’s, repairmen’s, construction contractors’ and mechanics’ and other similar Liens so long as such Liens only secure amounts not overdue for a period of more than 60 days or amounts that are being contested in good faith and by appropriate proceedings for which adequate reserves have been established in accordance with GAAP (to the extent required thereby);

(c)Liens in existence on the Effective Date which are listed on Schedule 9.01, plus renewals, replacements and extensions of such Liens; provided that (i) the aggregate principal amount of the Indebtedness, if any, secured by such Liens does not increase from that amount outstanding at the time of any such renewal, replacement or extension (except by the amount associated with costs, fees, expenses and premiums) and (ii) any such renewal, replacement or extension does not encumber any additional assets or properties of Parent or any of its Restricted Subsidiaries other than after-acquired property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section 9.04 and proceeds and products thereof;

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(d)(x) Liens created by or pursuant to the Credit Documents, and (y) Liens created by or pursuant to the ABL Credit Agreement and the ABL Loan Documents (including any Permitted Refinancing Indebtedness in respect thereof) (subject, as applicable, to the terms of the Intercreditor Agreement);

(e)(i) licenses, sublicenses, leases or subleases granted by Parent or any of its Restricted Subsidiaries to other Persons not materially interfering with the conduct of the business of Parent and its Restricted Subsidiaries, taken as a whole, and (ii) any interest or title of a lessor, sublessor or licensor under any lease or license agreement not prohibited by this Agreement to which Parent or any of its Restricted Subsidiaries is a party;

(f)Liens upon assets of Parent or any of its Restricted Subsidiaries subject to Capitalized Lease Obligations to the extent such Capitalized Lease Obligations are permitted by Section 9.04; provided that (i) such Liens only serve to secure the payment of Indebtedness arising under such Capitalized Lease Obligation (provided that individual financings of equipment provided by one lender may be cross collateralized to other financings of equipment provided by such lender) and (ii) the Lien encumbering the asset giving rise to the Capitalized Lease Obligation does not encumber any asset of Parent or any Restricted Subsidiary of Parent other than the assets subject to such Capitalized Lease Obligations, the proceeds and products thereof and improvements and accessions thereto;

(g)Liens to secure purchase money Indebtedness permitted under Section 9.04; provided that (i) such Liens are created within 270 days of the acquisition, construction, repair or improvement of the property subject to such Lien and (ii) such Liens do not encumber any asset of Parent or any of its Restricted Subsidiaries other than the property financed by such Indebtedness and the proceeds and products thereof and improvements and accessions thereto;

(h)easements, rights-of-way, restrictions (including zoning restrictions), encroachments, survey exceptions, and other similar charges or encumbrances, and minor title deficiencies, in each case not securing Indebtedness and not materially interfering with the ordinary conduct of the business of Parent and its Restricted Subsidiaries, taken as a whole;

(i)Liens arising out of the existence of judgments to the extent and so long as such judgments do not individually or in the aggregate constitute an Event of Default under Section 10.01(j);

(j)statutory and common law landlords’ liens under leases to which Parent or any of its Restricted Subsidiaries is a party;

(k)Liens (other than Liens imposed under ERISA) incurred, including pledges and deposits, in the ordinary course of business in connection with workers compensation claims, unemployment insurance and social security benefits and Liens securing the performance of bids, tenders, leases and contracts in the ordinary course of business, statutory obligations, surety bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business (exclusive of obligations in respect of the payment for borrowed money);

(l)Permitted Encumbrances;

(m)Liens on property or assets acquired pursuant to a Permitted Acquisition or another permitted Investment, or on property or assets of a Restricted Subsidiary of Parent in existence at the time such Restricted Subsidiary is acquired pursuant to a Permitted Acquisition or other permitted Investment; provided that (i) any Indebtedness that is secured by such Liens is permitted to exist under

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Section 9.04, and (ii) such Liens are not incurred in connection with, or in contemplation or anticipation of, such Permitted Acquisition and do not attach to any asset of Parent or any of its Restricted Subsidiaries other than proceeds and products thereof and improvements and accessions thereto;

(n)Liens arising out of any conditional sale, title retention, consignment or other similar arrangements for the sale of goods entered into by Parent or any of its Restricted Subsidiaries in the ordinary course of business to the extent such Liens do not attach to any assets other than the goods subject to such arrangements;

(o)Liens (i) incurred in the ordinary course of business in connection with the purchase or shipping of goods or assets (or the related assets and proceeds thereof), which Liens are in favor of the seller or shipper of such goods or assets and only attach to such goods or assets, and (ii) in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods;

(p)bankers’ Liens, rights of setoff and other similar Liens existing solely with respect to cash and Cash Equivalents on deposit in one or more accounts maintained by Parent or any of its Restricted Subsidiaries, in each case granted in the ordinary course of business in favor of the bank or banks or other entity with which such accounts are maintained;

(q)deposits made or other Liens provided to secure liabilities to insurance carriers under insurance or self-insurance arrangements, including Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto, in the ordinary course of business;

(r)Liens on earnest money deposits made in connection with any Permitted Acquisition or other permitted Investment or in respect of any anticipated Permitted Acquisition or other permitted Investment and Liens that may be deemed to exist by reason of any agreement to sell assets;

(s)Liens on cash and Cash Equivalents of Parent and its Restricted Subsidiaries deposited as collateral in favor of a hedging counterparty to secure obligations under Interest Rate Protection Agreements and/or Other Hedging Agreements otherwise permitted to be entered into by this Agreement;

(t)Liens securing obligations in respect of Indebtedness permitted under Sections 9.04(j)(ii), (l), (p) and (t);

(u)Liens on the Collateral securing (i) Permitted Pari Passu Refinancing Debt or any Permitted Refinancing Indebtedness in respect thereof and, in each case, subject to the Intercreditor Agreement and, to the extent applicable, the Pari Passu Intercreditor Agreement, (ii) Permitted Junior Priority Refinancing Debt or any Permitted Refinancing Indebtedness in respect thereof and, in each case, subject to the Intercreditor Agreement (if applicable) and the Second Lien Intercreditor Agreement (if applicable) and (iii) to the extent such Indebtedness is secured, Credit Agreement Refinancing Indebtedness of the type referred to in clause (d) of the definition thereof;

(v)other Liens on assets of Parent or any Restricted Subsidiary of Parent that secure obligations in an aggregate outstanding principal amount for all such Liens not to exceed the greater of (x) $50,000,000 and (y) 20.0% of Consolidated EBITDA for the most recently ended Calculation Period, in each case determined as of the date of incurrence;

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(w)Liens arising from precautionary UCC financing statements or consignments entered into in connection with any transaction not otherwise prohibited under this Agreement;

(x)(i) Liens on Equity Interests in joint ventures securing obligations of such joint ventures and (ii) customary rights of first refusal and tag, drag and similar rights in joint venture agreements entered into in the ordinary course of business;

(y)Liens securing obligations incurred in connection with any Sale/Leaseback Transaction; provided that the aggregate principal amount of any such Indebtedness outstanding at any time shall not exceed the greater of (x) $50,000,000 and (y) 20.0% of Consolidated EBITDA for the most recently ended Calculation Period; and

(z)Liens on Equity Interests of an Unrestricted Subsidiary that secure Indebtedness or other obligations of such Unrestricted Subsidiary.

In connection with the granting of Liens of the type described in clauses (c), (e), (f), (g), (m), (n), (r), (s), (v), (x), (y) and (z) of this Section 9.01 by Parent or any of its Restricted Subsidiaries, the Administrative Agent and the Security Agent shall be authorized to release its Liens on property subject to such Liens (and, so long as the ABL Agent has released (or concurrently releases) its Lien (if any) in favor of the holder or holders of such Liens, shall at the request of the Borrower release its Liens on property subject to such Liens) and take any other actions reasonably deemed appropriate by it in connection therewith (including, without limitation, by executing appropriate lien releases in favor of the holder or holders of such Liens solely with respect to the item or items of equipment or other assets subject to such Liens).

9.02Consolidation, Merger, Sale of Assets, etc.  Parent will not, and will not permit any of its Restricted Subsidiaries to, wind up, liquidate or dissolve its affairs or merge or consolidate into or with any Person, or convey, sell, lease or otherwise dispose of any of its property or assets, except that:

(a)so long as no Event of Default has occurred and is continuing or would result therefrom, Parent, Holdings or the Borrower may merge or consolidate with any other Person; provided that (i) in any such merger or consolidation involving Parent, Parent shall be the continuing or surviving Person, in any such merger or consolidation involving Holdings, Holdings shall be the continuing or surviving Person, and in any such merger or consolidation involving the Borrower, the Borrower shall be the continuing or surviving Person or (ii) if the Person formed by or surviving any such merger or consolidation is not Parent, Holdings or the Borrower (as applicable) (any such Person, the “Successor Company”), (A) the Successor Company shall be an entity organized or existing under the laws of the United States or any state thereof or the District of Columbia, (B) the Successor Company shall expressly assume all the obligations of Parent, Holdings or the Borrower (as applicable) under this Agreement and the other Credit Documents to which Parent, Holdings or the Borrower (as applicable) is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guaranty shall apply to the Successor Company’s obligations under the Credit Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Security Documents confirmed that its obligations thereunder shall apply to the Successor Company’s obligations under the Credit Documents, (E) if reasonably requested by the Administrative Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Company’s obligations under the Credit Documents, and (F) the Borrower shall have delivered to the Administrative Agent an

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officer’s certificate stating that such merger or consolidation and such supplement to this Agreement or any Security Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, Parent, Holdings or the Borrower (as applicable) under this Agreement;

(b)each of Parent and its Restricted Subsidiaries may sell inventory in the ordinary course of business;

(c)each of Parent and its Restricted Subsidiaries may liquidate or otherwise dispose of obsolete or worn-out property in the ordinary course of business and property no longer used or useable in the conduct of business of Parent and its Restricted Subsidiaries;

(d)Investments may be made to the extent permitted by Section 9.05;

(e)each of Parent and its Restricted Subsidiaries may convey, sell, lease, or dispose of property or assets so long as (i) at the time of such conveyance, sale, lease or disposition (other than any such conveyance, sale, lease or disposition made pursuant to a legally binding commitment entered into at a time when no Event of Default has occurred and is continuing), no Event of Default has occurred and is continuing or would result therefrom, (ii) with respect to any such transaction (or series of related transactions) in which the purchase price is in excess of $1,000,000, Parent or the respective Restricted Subsidiary receives at least Fair Market Value, (iii) with respect to any such transaction (or series of related transactions) in which the purchase price is in excess of $15,000,000, the consideration received by Parent or such Restricted Subsidiary consists of at least 75% cash or Cash Equivalents (provided, however, that for the purposes of this clause (e), the following shall be deemed to be cash: (x) any liabilities (as shown on Parent’s or a Restricted Subsidiary of Parent’s most recent balance sheet or in the footnotes thereto) of Parent or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the payment in cash of the Obligations, that are assumed by the transferee of any such assets or that are otherwise cancelled or terminated in connection with the transaction with such transferee and for which Parent and all of its applicable Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, (y) any securities, notes, or other obligations or assets received by Parent or the applicable Restricted Subsidiary from such transferee that are converted by Parent or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of the applicable transaction and (z) aggregate non-cash consideration received by Parent or the applicable Restricted Subsidiary having an aggregate Fair Market Value (determined as of the closing of the applicable conveyance, sale, lease or disposition for which such non-cash consideration is received) taken together with all other non-cash consideration received pursuant to this clause (z) does not to exceed the greater of (x) $15,000,000 and (y) 5.0% of Consolidated EBITDA for the most recently ended Calculation Period at any time outstanding, and (iv) an amount equal to the Net Sale Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 4.02(d);

(f)each of Parent and its Restricted Subsidiaries may lease or sublease (as lessee or sublessee) or license or sublicense (as licensee or sublicensee) real or personal property (so long as any such lease or sublease or license or sublicense does not create a Capitalized Lease Obligation except to the extent permitted by Section 9.04);

(g)each of Parent and its Restricted Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof and not as part of any financing transaction;

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(h)each of Parent and its Restricted Subsidiaries may grant licenses, sublicenses, leases or subleases to other Persons not materially interfering with the conduct of the business of Parent and its Restricted Subsidiaries, taken as a whole;

(i)Parent or any Restricted Subsidiary of Parent may convey, sell or otherwise transfer all or any part of its business, properties and assets to Parent or any Restricted Subsidiary; provided that if the transferor of such property is a Credit Party, the transferee thereof must be a Credit Party;

(j)any Restricted Subsidiary of Parent may merge, amalgamate or consolidate with and into, or be dissolved or liquidated into (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that the Borrower shall be the continuing or surviving Person or (ii) one or more other Restricted Subsidiaries of Parent; provided that when any Person that is a Credit Party is merging, amalgamating or consolidating with a Restricted Subsidiary that is not a Credit Party, a Credit Party shall be the continuing or surviving Person or the surviving entity shall substantially concurrently become a Credit Party;

(k)Parent and its Restricted Subsidiaries may consummate a merger, amalgamation, dissolution, liquidation, consolidation, investment or conveyance, the purpose of which is to effect an Investment permitted pursuant to Section 9.05 or a sale, transfer or other disposition otherwise permitted under this Section 9.02;

(l)each of Parent and its Restricted Subsidiaries may liquidate or otherwise dispose of cash and Cash Equivalents;

(m)Liens may be granted to the extent permitted by Section 9.01;

(n)any involuntary loss, damage or destruction of property and the disposition of the assets so damaged or destroyed shall be permitted;

(o)any involuntary condemnation, seizure or taking, by exercise of the power of eminent domain or otherwise, or confiscation or requisition of use of property shall be permitted;

(p)the lapse, abandonment or cancellation of patents, trademarks and other intellectual property of Parent and its Restricted Subsidiaries shall be permitted if, in the reasonable business judgment of Parent or such Restricted Subsidiary, it is not economically desirable in the conduct of their business to maintain such patents, trademarks or other intellectual property;

(q)(i) any Restricted Subsidiary that is not a Credit Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Credit Party, (ii) any Restricted Subsidiary may liquidate or dissolve and (iii) any Restricted Subsidiary may change its legal form; provided that with respect to clause (ii) or (iii), the Borrower determines in good faith that such action is in the best interest of the Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders (it being understood that in the case of any change in legal form, a Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder);

(r)Dividends may be paid to the extent permitted by Section 9.03;

(s)grants of credits or allowances to distributors, customers or suppliers in the ordinary course of business may be made;

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(t)the discount of inventory, accounts receivable or notes receivable in the ordinary course of business or the conversion of accounts receivable to notes receivable may be made;

(u)dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings may be made;

(v)sales or other dispositions in connection with any Sale/Leaseback Transaction to the extent not otherwise prohibited hereunder may be made;

(w)dispositions in connection with a reorganization and other activities related to tax planning or tax reorganization that do not impair the security interests granted to the Security Agent for the benefit of the Secured Creditors and are otherwise not materially adverse to the Lenders after giving effect to such reorganization, provided, that Parent and its Restricted Subsidiaries comply with Section 8.12;

(x)the unwinding or settlement of any Interest Rate Protection Agreement or Other Hedging Agreement;

(y)sales, transfers or other dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;

(z)any sale, transfer or other disposition of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and

(aa)sales, transfers and other dispositions of property to the extent that (1) such property is exchanged for credit against the purchase price of similar replacement property that is promptly purchased or (2) the proceeds of such disposition are promptly applied to the purchase price of such replacement property (which replacement property is actually promptly purchased).

To the extent the Required Lenders waive the provisions of this Section 9.02 with respect to the sale, transfer or disposition of any Collateral, or any Collateral is sold, transferred or disposed of as permitted by this Section 9.02 (other than to a Credit Party), such Collateral shall be sold, transferred or disposed of free and clear of the Liens created by the Security Documents, and the Administrative Agent and the Security Agent shall be authorized to take (and shall, at the request of the Borrower, take) any actions reasonably deemed appropriate in order to effect or evidence the foregoing.

9.03Dividends.  Parent will not, and will not permit any of its Restricted Subsidiaries to, declare or pay any Dividends, except that:

(a)each Restricted Subsidiary of Parent may make Restricted Payments to Parent and any Restricted Subsidiary of Parent;

(b)any Non-Wholly-Owned Subsidiary of Parent may pay Dividends to its shareholders, members or partners generally, so long as Parent or its respective Restricted Subsidiary which owns the Equity Interest in the Restricted Subsidiary paying such Dividends receives at least its proportionate share thereof (based upon its relative holding of the Equity Interest in the Restricted Subsidiary paying such Dividends and taking into account the relative preferences, if any, of the various classes of Equity Interests of such Restricted Subsidiary);

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(c)Parent may (and may pay cash Dividends to any direct or indirect parent of Parent for the purpose of enabling any direct or indirect parent of Parent to) redeem, repurchase or otherwise acquire for value Equity Interests of Parent (or of such direct or indirect parent of Parent) following the death, disability, retirement or termination of employment of officers, directors or employees of Parent or any of its Restricted Subsidiaries, provided that the sum of the aggregate amount of Dividends paid by Parent in reliance on this clause (c) shall not exceed $15,000,000 in any Fiscal Year (which shall increase to $20,000,000 subsequent to the consummation of an IPO) with unused amounts in any fiscal year being permitted to be carried over to the immediately succeeding fiscal year, plus any cash proceeds received by Parent or any of its Restricted Subsidiaries from key man life insurance policies;

(d)Parent may pay cash Dividends to any direct or indirect parent of Parent at the times and in the amounts necessary to enable such direct or indirect parent of Parent to pay their respective tax obligations, to the extent attributable to the business of Parent and its Restricted Subsidiaries; provided that (x) the amount of cash Dividends paid by Parent pursuant to this clause (d) to enable any direct or indirect parent of Parent to pay Federal and state income and franchise taxes at any time shall not exceed the amount of such Federal and state income and franchise taxes actually owing by such direct or indirect parent of Parent at such time for the respective period as determined in good faith by such direct or indirect parent of Parent and (y) the proceeds of such Dividends shall be used by such direct or indirect parent of Parent for the purposes described above in this clause (d);

(e)Parent may pay cash Dividends to any direct or indirect parent of Parent so long as the proceeds thereof are used by such direct or indirect parent of Parent solely to (i) pay operating expenses of such direct or indirect parent of Parent incurred in the ordinary course of business (including, without limitation, outside directors and professional fees, expenses and indemnities) and other similar corporate overhead costs and expenses in each case attributable to the ownership or operations of Parent and the Restricted Subsidiaries and (ii) pay cash Dividends to any direct or indirect parent of Parent for the purpose of paying (and so long as same are used to pay) operating expenses of such direct or indirect parent of Parent incurred in the ordinary course of business and other similar corporate overhead costs and expenses in each case attributable to the ownership or operations of Parent and the Restricted Subsidiaries;

(f)the Borrower may pay Dividends to Holdings (or any direct or indirect parent company thereof) at the times and in amounts necessary to enable Parent (or any direct or indirect parent company thereof) to make payments due under the Tax Receivable Agreement (and Parent (or such direct or indirect parent company) shall be permitted to make such payments);

(g)after an IPO, (i) any Dividend by Parent to pay listing fees and other costs and expenses payable by any direct or indirect parent of Parent that are attributable to being a publicly traded company and are reasonable and customary and (ii) additional Dividends in an aggregate amount in any Fiscal Year not to exceed an amount equal to 6.0% of the Market Capitalization;

(h)Parent may, in lieu of making direct cash payments to Sponsor and its Affiliates or the Advance Shareholders as otherwise permitted by Sections 9.06(g), (h), (i), (j) and (k), pay Dividends (including to any direct or indirect parent of Parent) in order to make the payments permitted by such Sections;

(i)if immediately before and immediately after giving effect to the respective Dividend, the First Lien Net Leverage Ratio for the Calculation Period most recently ended (calculated on a Pro Forma Basis) does not exceed 4.70:1.00, other Dividends in an aggregate amount not to exceed the Available Amount; provided that with respect to any Dividend made pursuant to this Section 9.03(i), no Event of Default has occurred and is continuing or would result therefrom;

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(j)other Dividends, so long as the aggregate amount of all Dividends made pursuant to this Section 9.03(j) does not exceed $75,000,000;

(k)other Dividends so long as the Total Net Leverage Ratio for the Calculation Period most recently ended (calculated on a Pro Forma Basis) does not exceed 4.00:1.00;

(l)Parent and each of its Restricted Subsidiaries may declare and make Dividends payable solely in the Equity Interests of such Person (other than Disqualified Equity Interests);

(m)repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;

(n)repurchases of Equity Interests in Parent (or any direct or indirect parent thereof) or any Restricted Subsidiary of Parent deemed to occur upon exercise or vesting of stock options, warrants, or other Equity Interests if such Equity Interests (i) represent all or a portion of the exercise price of such options or warrants, or (ii) are surrendered in connection with satisfying any federal, state, local, or foreign income tax obligation (including withholding in respect thereof) incurred in connection with such exercise or vesting; and

(o)Parent or any Restricted Subsidiary of Parent may (i) pay cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms.

9.04Indebtedness.  Parent will not, and will not permit any of its Restricted Subsidiaries to, contract, create, incur, assume or suffer to exist any Indebtedness, except:

(a)Indebtedness incurred pursuant to this Agreement and the other Credit Documents;

(b)Existing Indebtedness outstanding on the Effective Date and listed on Schedule 9.04, without giving effect to any subsequent extension, renewal or refinancing thereof except through one or more issuances of Permitted Refinancing Indebtedness in respect thereof;

(c)Indebtedness (i) under Interest Rate Protection Agreements entered into with respect to other Indebtedness permitted under this Section 9.04 and (ii) under Other Hedging Agreements, in either case so long as the entering into of such Interest Rate Protection Agreements or Other Hedging Agreements is in the ordinary course of business and not for speculative purposes;

(d)Indebtedness (including any Permitted Refinancing thereof) of Parent and its Restricted Subsidiaries evidenced by Capitalized Lease Obligations and purchase money Indebtedness secured by Liens permitted under Section 9.01; provided that in no event shall the sum of the aggregate outstanding principal amount of all Capitalized Lease Obligations and purchase money Indebtedness incurred in reliance on this clause (d) exceed the greater of (x) $30,000,000 and (y) 10.0% of Consolidated EBITDA for the most recently ended Calculation Period;

(e)Indebtedness constituting Intercompany Loans to the extent permitted by Sections 9.05(h) and (q);

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(f)guarantees by Parent or any Restricted Subsidiary in respect of Indebtedness of Parent or any Restricted Subsidiary otherwise permitted under this Section, provided, in no event shall any Restricted Subsidiary that is not a Credit Party guarantee Indebtedness of a Credit Party pursuant to this Section 9.04(f);

(g)Indebtedness of Parent or a Restricted Subsidiary of Parent acquired, incurred, assumed or issued to finance a Permitted Acquisition, merger, amalgamation or consolidation or other Investment permitted under this Agreement (or Indebtedness assumed at the time of a Permitted Acquisition or other permitted acquisition of an asset securing such Indebtedness) (any such Indebtedness, “Permitted Acquired Debt”) and any Permitted Refinancing Indebtedness in respect thereof; provided that (i) such Indebtedness was not incurred in connection with, or in anticipation or contemplation of, such Permitted Acquisition or other Investment or acquisition, and (ii) (x) such Indebtedness does not exceed an aggregate principal amount of $75,000,000 at any time outstanding or (y) either (1) the Interest Coverage Ratio as of the last day of the most recently ended Calculation Period (calculated on a Pro Forma Basis as if such Permitted Acquisition or other permitted transaction had occurred on the first day of such Calculation Period) is no less than 2.00:1.00 or (2) the Interest Coverage Ratio as of the last day of the most recently ended Calculation Period (calculated on a Pro Forma Basis as if such Permitted Acquisition or other permitted transaction had occurred on the first day of such Calculation Period) is no less than the Interest Coverage Ratio as of the last day of the most recently ended Calculation Period (calculated on a Pro Forma Basis without giving pro forma effect to such Permitted Acquisition or other permitted transaction, but with giving pro forma effect to any other Permitted Acquisitions or other permitted transactions theretofore consummated after the first day of such Calculation Period) (and in each case, any Permitted Refinancing Indebtedness in respect thereof);

(h)Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, so long as such Indebtedness is extinguished in the ordinary course of business;

(i)Indebtedness of Parent and its Restricted Subsidiaries with respect to performance bonds, surety bonds (including in favor of the U.S.D.A. in connection with Parent’s and its Restricted Subsidiaries’ contracts and transactions therewith), appeal bonds, customs bonds, worker’s compensation claims, self-insurance obligations and bankers acceptances and other obligations of a like nature incurred in the ordinary course of business or consistent with past practices or in connection with the enforcement of rights or claims of Parent or any of its Restricted Subsidiaries or in connection with judgments that do not result in a Default or an Event of Default (including guarantees or obligations of Parent or any Restricted Subsidiary with respect to letters of credit supporting such performance, appeal, customs or surety bonds, workers’ compensation claims, self-insurance obligations and bankers acceptances);

(j)Indebtedness of the Credit Parties under the (i) ABL Loan Documents in an aggregate principal amount not to exceed $250,000,000 at any time outstanding (including any Permitted Refinancing Indebtedness in respect thereof), and (ii) Junior Lien Debt (including Permitted Junior Priority Refinancing Debt) so long as, after giving effect to the incurrence of such principal amount of Junior Lien Debt, the Total Secured Net Leverage Ratio shall not exceed 4.70:1.00, determined on a Pro Forma Basis (in each case including any Permitted Refinancing Indebtedness in respect thereof);

(k)Indebtedness of Parent or any of its Restricted Subsidiaries which may be deemed to exist in connection with agreements providing for indemnification, purchase price adjustments, earnouts, extended purchase price obligations and similar obligations in connection with any acquisition or other Investment or disposition permitted by this Agreement;

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(l)secured Indebtedness of the Credit Parties that is (x) contractually subordinated or (y) secured by Liens on the Collateral having a junior priority relative to the Liens on the Collateral securing the Obligations; provided that (i) after giving effect to the incurrence and application of proceeds thereof, the Total Secured Net Leverage Ratio determined on a Pro Forma Basis for the Calculation Period most recently ended does not exceed 4.70:1.00, (ii) such Indebtedness shall not be guaranteed by any Person other than the Credit Parties, (iii) such Indebtedness is not secured by any property or assets of Parent or any Subsidiary other than the Collateral, (iv) such Indebtedness shall not mature or require any scheduled amortization or scheduled payments of principal and is not subject to mandatory redemption, repurchase, repayment or sinking fund obligation (other than customary offers to repurchase on a change of control, asset sale or casualty event and customary acceleration rights after an event of default, or prepayments of the type applicable to the Loans, to the extent the amounts subject to such prepayments are applied first, to the Loans, and second, to such Indebtedness), in each case, prior to the date that is 91 days after the Latest Maturity Date then in effect and the Weighted Average Life to Maturity of such Indebtedness shall not be shorter than the Weighted Average Life to Maturity of the Loans at the time of such incurrence (except to the extent of nominal amortization for periods where amortization has been eliminated as a result of prepayment of the applicable Loans), and (v) in the case of any such Indebtedness that is Secured, the holders of such Indebtedness (or their representative) and the Administrative Agent shall be party to the Intercreditor Agreement (provided, that if the Borrower or any Guarantor shall incur Junior Lien Debt, then the Intercreditor Agreement shall be amended, or amended and restated, in substantially the form of the Restated Intercreditor Agreement, with such modifications thereto as may be reasonably agreed by the Administrative Agent, the Security Agent, the ABL Agent (if any) and the holders of such Indebtedness (or their representative agents)), and to the extent constituting Junior Lien Debt, the holders of such Indebtedness (or their representative) shall be party to a Second Lien Intercreditor Agreement, if applicable (and any Permitted Refinancing Indebtedness in respect thereof);

(m)Indebtedness of Parent or any of its Restricted Subsidiaries consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, incurred in the ordinary course of business;

(n)Indebtedness of Parent or any other Credit Party issued to a seller on the date of the consummation of a Permitted Acquisition or other Investment permitted hereunder for the purpose of consummating such Permitted Acquisition or other Investment permitted hereunder, so long as (i) the aggregate principal amount of all such Indebtedness does not exceed the greater of $75,000,000 and 30.0% of Consolidated EBITDA for the most recently ended Calculation Period at any time outstanding and (ii) such Indebtedness is unsecured (such Indebtedness, the “Seller Debt”);

(o)Indebtedness of Parent or any Restricted Subsidiary in respect of indemnification, working capital or similar adjustments of purchase price, “earn-out” or similar performance-based deferred purchase price arrangements, non-competes, transition services or similar obligations incurred in connection with any Permitted Acquisition or other Investment permitted hereunder or any dispositions permitted hereunder;

(p)secured or unsecured notes issued by any Credit Party in lieu of Incremental Facilities and which may be guaranteed by the other Credit Parties (such notes, “Incremental Equivalent Debt”); provided that (i) the aggregate principal amount of all Incremental Equivalent Debt, together with the aggregate principal amount (or committed amount, if applicable) of all Incremental Loans provided pursuant to Section 2.14, shall not exceed the Maximum Incremental Facilities Amount, (ii) if any Incremental Equivalent Debt is secured, it shall be secured only by the Collateral and either be secured on a pari passu basis with the Obligations, in which case the Liens securing such Indebtedness shall be subject to a Pari Passu Intercreditor Agreement, or on a junior lien basis (but on a pari passu basis

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with any other outstanding Junior Lien Debt), in which case the Liens securing such Junior Lien Debt shall be subject to the Intercreditor Agreement (and the Intercreditor Agreement shall be amended, or amended and restated, in substantially the form of the Restated Intercreditor Agreement, with such modifications thereto as may be reasonably agreed by the Administrative Agent, the Security Agent, the ABL Agent (if any) and the holders of such Junior Lien Debt (or their representative agents)), and, if applicable, a Second Lien Intercreditor Agreement, (iii) such Incremental Equivalent Debt shall not be guaranteed by any Person other than the Credit Parties, (iv) such Incremental Equivalent Debt secured by Liens subject to the Pari Passu Intercreditor Agreement shall not mature or have a Weighted Average Life to Maturity (other than to the extent of nominal amortization for periods where amortization has been eliminated) shorter than the Loans, and shall not be subject to mandatory redemption, repurchase, repayment or sinking fund obligation (other than customary offers to repurchase on a change of control, asset sale or casualty event and customary acceleration rights after an event of default, prepayment requirements substantially similar to those applicable to the Loans and amortization), in each case, prior to the Latest Maturity Date then in effect at the time of such incurrence and the Weighted Average Life to Maturity of such Indebtedness shall not be shorter than the Weighted Average Life to Maturity of the Loans at the time of such incurrence, and (v) such Incremental Equivalent Debt that is unsecured or is subject to a Second Lien Intercreditor Agreement shall not mature or require any scheduled amortization or scheduled payments of principal and is not subject to mandatory redemption, repurchase, repayment or sinking fund obligation (other than customary offers to repurchase on a change of control, asset sale or casualty event and customary acceleration rights after an event of default, and prepayment requirements substantially similar to those applicable to the Loans), in each case, prior to the date that is 91 days after the Latest Maturity Date then in effect at the time of such incurrence and the Weighted Average Life to Maturity of such Indebtedness shall not be shorter than the Weighted Average Life to Maturity of the Loans at the time of such incurrence (and any Permitted Refinancing Indebtedness in respect thereof);

(q)any Credit Agreement Refinancing Indebtedness and any Permitted Refinancing Indebtedness in respect thereof;

(r)Contribution Indebtedness and any Permitted Refinancing Indebtedness with respect thereto;

(s)Permitted Ratio Debt; provided, that the aggregate outstanding principal amount of Indebtedness under this clause (s) of Restricted Subsidiaries that are not Credit Parties shall not exceed the greater of (x) $50,000,000 and (y) 20.0% of Consolidated EBITDA at any time (and in each case, Permitted Refinancing Indebtedness in respect thereof);

(t)Indebtedness of a Credit Party that is secured on a pari passu basis with the Obligations (and which may be guaranteed by the other Credit Parties), so long as (i) after giving effect to the incurrence and application of proceeds thereof, the First Lien Net Leverage Ratio (calculated on a Pro Forma Basis) for the Calculation Period most recently ended does not exceed 4.70:1.00, (ii) such Indebtedness shall not be guaranteed by any Person other than the Credit Parties, (iii) no such Indebtedness shall be secured by any asset of Parent or any of its Restricted Subsidiaries other than the Collateral, (iv) such Indebtedness shall not mature or require any scheduled amortization or scheduled payments of principal and is not subject to mandatory redemption, repurchase, repayment or sinking fund obligation (other than customary offers to repurchase on a change of control, asset sale or casualty event and customary acceleration rights after an event of default and prepayment requirements substantially similar to those applicable to the Loans), in each case, prior to the date that is 91 days after the Latest Maturity Date then in effect and the Weighted Average Life to Maturity of such Indebtedness shall not be shorter than the Weighted Average Life to Maturity of the Term Loans at the time of such incurrence (except to the extent of nominal amortization for periods where amortization has been eliminated as a result of prepayment of the applicable Loans), (v) the Net Cash Proceeds of such Indebtedness are applied

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substantially concurrently with the incurrence of such Indebtedness to finance Permitted Acquisitions or other Investments permitted hereunder (including repayment of Indebtedness associated with such Permitted Acquisition or other Investments permitted hereunder and any Capital Expenditures and other expenditures related to the assets acquired in the applicable Permitted Acquisition or other Investments permitted hereunder), (vi) the holders of such Indebtedness (or their representative) and the Administrative Agent shall be party to the Intercreditor Agreement and a Pari Passu Intercreditor Agreement (and any Permitted Refinancing Indebtedness in respect thereof) and (vii) if such Indebtedness is in the form of a credit facility incurred within 18 months of the Effective Date, such Indebtedness shall be subject to the provisions of clause (i) of the third sentence of Section 2.14(a) to the same effect as if such Indebtedness was in the form of Incremental Term Loans;

(u)Parent or any of its Restricted Subsidiaries in an aggregate principal amount not to exceed at any time outstanding the greater of (x) $50,000,000 and (y) 20.0% of Consolidated EBITDA for the most recently ended Calculation Period;

(v)unsecured Indebtedness in respect of obligations of Parent or any Restricted Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms in the ordinary course of business and not in connection with the borrowing of money;

(w)Indebtedness representing deferred compensation or similar arrangements to directors, officers, employees, members of management, consultants or independent contractors of Parent (or its direct or indirect parent) and its Restricted Subsidiaries incurred in the ordinary course of business or otherwise incurred in connection with any Permitted Acquisition or other Investment permitted under Section 9.05 hereof;

(x)Indebtedness consisting of Indebtedness issued by Parent or a Restricted Subsidiary to future, present or former officers, directors, employees, members of management or consultants thereof or any direct or indirect parent thereof, their respective estates, spouses, former spouses, domestic partners or former domestic partners, in each case to finance the purchase or redemption of Equity Interests of Parent, a Restricted Subsidiary or any of their direct or indirect parent companies permitted by Section 9.03(c) hereof;

(y)Indebtedness incurred on behalf of, or representing guarantees of Indebtedness of, joint ventures of Parent or any of its Restricted Subsidiaries in an aggregate principal amount not to exceed, at any one time outstanding, the greater of $15,000,000 and 5.0% of Consolidated EBITDA for the most recently ended Calculation Period;

(z)Indebtedness of Restricted Subsidiaries that are not Qualified Credit Parties in an aggregate principal amount outstanding at any time not to exceed the greater of $15,000,000 and 5.0% of Consolidated EBITDA for the most recently ended Calculation Period;

(aa)Indebtedness of Parent and its Restricted Subsidiaries relating to Sale/Leaseback Transactions in an aggregate outstanding principal amount not to exceed the greater of $50,000,000 and 20.0% of Consolidated EBITDA for the most recently ended Calculation Period (and Permitted Refinancing Indebtedness in respect thereof);

(bb)Indebtedness in respect of treasury, depositary and cash management services or automated clearinghouse transfer of funds, including without limitation the Cash Management Obligations, in the ordinary course of business; and

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(cc)all premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bb) above.

For purposes of determining compliance with this Section 9.04, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Indebtedness described in clauses (a) through (cc) above, the Borrower shall, in its sole discretion, classify and reclassify or later divide, classify or reclassify such item of Indebtedness (or any portion thereof) and will only be required to include the amount and type of such Indebtedness in one or more of the above clauses.

9.05Advances, Investments and Loans.  Parent will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, lend money or credit or make advances to any Person, or purchase or acquire any stock, obligations or securities of, or any other Equity Interest in, or make any capital contribution to, any other Person (each of the foregoing an “Investment” and, collectively, “Investments”), except that the following shall be permitted:

(a)Parent and its Restricted Subsidiaries may extend trade credit and acquire and hold accounts receivables owing to any of them, if created or acquired in the ordinary course of business;

(b)Parent and its Restricted Subsidiaries may acquire and hold cash and Cash Equivalents;

(c)Parent and its Restricted Subsidiaries may hold the Investments held by them on the Effective Date; provided that any additional Investments made with respect thereto shall be permitted only if permitted under the other provisions of this Section 9.05;

(d)Parent and its Restricted Subsidiaries may acquire and own Investments (including debt obligations) received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, customers and suppliers arising in the ordinary course of business;

(e)Parent and its Restricted Subsidiaries may make loans and advances to their officers and employees (i) for moving, relocation and travel expenses and other similar expenditures in the ordinary course of business in an aggregate amount not to exceed the greater of $15,000,000 and 5.0% of Consolidated EBITDA for the most recently ended Calculation Period outstanding at any time (determined without regard to any write-downs or write-offs of such loans and advances but taking into account any return of capital, repayment, dividend or distribution in respect thereof), (ii) in connection with such Person’s purchase of Equity Interests of Parent or any direct or indirect parent of Parent and (iii) for business related expenses, moving expenses and other similar expenses and advances of payroll payments, in each case incurred in the ordinary course of business or consistent with past practices;

(f)Parent and its Restricted Subsidiaries may acquire and hold obligations of their officers and employees in connection with such officers’ and employees’ acquisition of shares of Equity Interests of Holdings or Parent (so long as no cash is actually advanced by Parent or any of its Restricted Subsidiaries in connection with the acquisition of such obligations);

(g)Parent and its Restricted Subsidiaries may enter into Interest Rate Protection Agreements and Other Hedging Agreements to the extent permitted by Section 9.04(c);

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(h)(i) any Credit Party may make intercompany loans and advances to any other Credit Party, (ii) any Restricted Subsidiary of Parent which is not a Credit Party may make intercompany loans and advances to any Credit Party, (iii) any Restricted Subsidiary of Parent which is not a Credit Party may make intercompany loans and advances to any other Restricted Subsidiary of Parent which is not a Credit Party and (iv) any Credit Party may make intercompany loans and advances to any Restricted Subsidiary of Parent which is not a Credit Party (such intercompany loans and advances referred to in preceding clauses (i) through (iv), collectively, the “Intercompany Loans”); provided that (A) each Intercompany Loan made by a Credit Party shall be evidenced by an Intercompany Note, (B) each such Intercompany Note owned or held by a Credit Party shall be pledged to the Security Agent pursuant to the Security Agreement, (C) each Intercompany Loan made to a Credit Party shall be subject to the subordination provisions contained in the Intercompany Subordination Agreement, and (D) at no time shall the aggregate outstanding principal amount of all Intercompany Loans made pursuant to preceding sub-clause (iv) of this clause (h) when added to the amount of contributions and acquisitions of Equity Interests theretofore made pursuant to subclause (i)(y) of this Section 9.05 (for this purpose taking the Fair Market Value of any property (other than cash) so contributed at the time of such contributions) exceed the greater of $25,000,000 and 10.0% of Consolidated EBITDA for the most recently ended Calculation Period outstanding at any time (determined without regard to any write-downs or write-offs of such loans and advances but taking into account any return of capital, repayment, dividend or distribution in respect thereof);

(i)(x) the Credit Parties may make capital contributions to, or acquire Equity Interests of, any other Credit Party, (y) any Credit Party may make capital contributions to, or acquire Equity Interests of, any Restricted Subsidiary of Parent which is not a Credit Party; provided that the aggregate amount of contributions and acquisitions of Equity Interests on and after the Effective Date made pursuant to preceding subclause (y) (for this purpose, taking the Fair Market Value of any property (other than cash) so contributed at the time of such contribution), when added to the aggregate outstanding principal amount of Intercompany Loans made to any Restricted Subsidiary of Parent which is not a Credit Party pursuant to subclause (iv) of Section 9.05(h) (determined without regard to any write-downs or write-offs thereof but taking into account any return of capital, repayment, dividend or distribution in respect thereof), shall not exceed an amount equal to the greater of $25,000,000 and 10.0% of Consolidated EBITDA for the most recently ended Calculation Period outstanding at any time; provided that such limit shall not be applicable if such Restricted Subsidiary becomes a Credit Party following such capital contributions, or acquisition of Equity Interests; and (z) Restricted Subsidiaries that are not Credit Parties may make capital contributions to, or acquire Equity Interests of, other Restricted Subsidiaries that are not Credit Parties;

(j)Parent and its Restricted Subsidiaries may own the Equity Interests of their respective Subsidiaries created or acquired in accordance with the terms of this Agreement (so long as all amounts invested in such Subsidiaries are after the Effective Date independently permitted under another provision of this Section 9.05);

(k)Contingent Obligations permitted by Section 9.04, to the extent constituting Investments;

(l)Permitted Acquisitions, so long as: (i) no Event of Default shall have occurred and be continuing at the time of entry into the applicable definitive agreement with respect to such Permitted Acquisition; and (ii) in the case of a Permitted Acquisition of an Excluded Subsidiary or a Non-Wholly Owned Subsidiary (or assets which will be acquired by an Excluded Subsidiary or a Non-Wholly Owned Subsidiary pursuant to a Permitted Acquisition or assets located outside the United States which will be acquired pursuant to a Permitted Acquisition), the Aggregate Consideration payable for such Permitted Acquisition, when added to the Aggregate Consideration paid or payable for all other

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Permitted Acquisitions of Excluded Subsidiaries and Non-Wholly Owned Subsidiaries (and assets acquired by Excluded Subsidiaries and Non-Wholly Owned Subsidiaries pursuant to all other Permitted Acquisitions), does not exceed (I) the greater of $75,000,000 and 30.0% of Consolidated EBITDA for the most recently ended Calculation Period outstanding at any time plus (II) the amount of any other provision of this Section 9.05 that may be utilized to make an Investment;

(m)Parent and its Restricted Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any asset sale permitted by Section 9.02;

(n)Parent and its Restricted Subsidiaries may make advances in the form of a prepayment of expenses to vendors, suppliers and trade creditors, so long as such expenses were incurred in the ordinary course of business of Parent or such Restricted Subsidiary;

(o)Parent and its Restricted Subsidiaries may make advances in connection with purchases of goods or services in the ordinary course of business;

(p)other Investments, provided that the aggregate amount of Investments made pursuant to this clause (p) that are at that time outstanding shall not exceed the greater of (x) $50,000,000 and (y) 20.0% of Consolidated EBITDA for the most recently ended Calculation Period (determined without regard to any write-downs or write-offs thereof but taking into account any disposition proceeds, return of capital, repayment, interest, dividend or distribution in respect thereof);

(q)Parent and its Restricted Subsidiaries may from time to time make Investments in Foreign Subsidiaries to finance Permitted Acquisitions of Foreign Subsidiaries (or assets located outside the United States which will be acquired pursuant to a Permitted Acquisition) in accordance with Section 9.05(l);

(r)so long as no Event of Default then exists or would result therefrom, additional Investments at any time not in an amount (valued at the time of the making thereof, and without giving effect to any write downs or write offs thereof) not to exceed the Available Amount at such time;

(s)Investments in joint ventures in an aggregate amount not to exceed the greater of $15,000,000 and 5.0% of Consolidated EBITDA for the most recently ended Calculation Period outstanding at any time;

(t)Investments of a Person acquired (pursuant to a merger, consolidation, acquisition or otherwise) pursuant to a Permitted Acquisition or other Investment permitted under Section 9.05; provided that such Investment was not made in anticipation or contemplation of such Permitted Acquisition or other Investment;

(u)Investments consisting of Liens, fundamental changes, sales or other dispositions and Indebtedness (other than by reference to this Section 9.05(u)) under Sections 9.01, 9.02 and 9.04, respectively;

(v)Investments to the extent that payment for such Investments is made with Qualified Equity Interests of Parent (or any direct or indirect parent thereof) or Net Cash Proceeds therefrom; provided that such amounts used pursuant to this Section 9.05(v) shall not increase the Available Amount;

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(w)Contingent Obligations in respect of operating leases or of other obligations that do not constitute Indebtedness, in each case, entered into by or of Parent or any Restricted Subsidiary in the ordinary course of business;

(x)the forgiveness or conversion to Equity Interests of any intercompany Indebtedness owed to Parent or any of its Restricted Subsidiaries otherwise permitted by Section 9.05; and

(y)other Investments, provided that at the time of making such Investment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) is not greater than 4.00:1.00.

For purposes of determining compliance with this Section 9.05, if any Investment (or a portion thereof) would be permitted pursuant to one or more provisions described above, the Borrower may divide and classify such Investment (or a portion thereof) in any manner that complies with this covenant and may later divide and reclassify any such Investment so long as the Investment (as so divided and/or reclassified) would be permitted to be made in reliance on the applicable exception as of the date of such reclassification.

9.06Transactions with Affiliates.  Parent will not, and will not permit any of its Restricted Subsidiaries to, enter into any transaction or series of related transactions involving payments by Parent or any of its Restricted Subsidiaries in excess of $1,000,000 with any Affiliate of Parent or any of its Subsidiaries (other than Parent or any Subsidiary thereof), except:

(a)Dividends permitted under Section 9.03 and any payments under the Tax Receivable Agreement;

(b)loans may be made and other transactions may be entered into by Parent and its Restricted Subsidiaries to the extent permitted by Section 9.02, 9.04 or 9.05;

(c)customary fees, indemnities and reimbursements may be paid to directors of Parent and its Restricted Subsidiaries;

(d)Parent and any Restricted Subsidiary of Parent of may issue Qualified Equity Interests (and options, warrants and rights thereto);

(e)Parent and its Restricted Subsidiaries may enter into, and may make payments under, employment agreements, employee benefits plans, severance arrangements, stock option plans, indemnification provisions and other similar compensatory arrangements with officers, employees and directors of Parent and its Restricted Subsidiaries in the ordinary course of business;

(f)Restricted Subsidiaries of Parent may pay management fees, licensing fees and similar fees to Parent, Holdings, the Borrower or any other Restricted Subsidiary;

(g)Parent, Holdings the Borrower or any other Restricted Subsidiary may pay the management, consulting, monitoring, advisory and other fees (including, without limitation, any termination fee) and related expenses (including, without limitation, indemnification and other similar amounts) pursuant to any Management Agreement (plus any unpaid management, consulting, monitoring, advisory and other fees and related expenses (including indemnification and similar amounts) accrued in any prior year), or, in each case, any amendment to any Management Agreement so long as any such amendment is not, in the good faith judgment of the board of directors (or similar governing body) of

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Parent or the Borrower, materially disadvantageous to the Lenders when taken as a whole, as compared to such Management Agreement as in effect on the Effective Date;

(h)Parent, Holdings the Borrower or any other Restricted Subsidiary may reimburse the Sponsor and its Affiliates and the Advance Shareholders for their reasonable out-of-pocket expenses and indemnification claims incurred in connection with their providing management services to Parent and its Restricted Subsidiaries;

(i)Parent and its Restricted Subsidiaries may pay to Sponsor and the Advance Shareholders reasonable out-of-pocket expenses pursuant to any financial advisory, financing, underwriting, or placement agreement or in respect of other investment banking activities in connection with acquisitions, divestitures, debt incurrences or equity issuances that are permitted by this Agreement;

(j)Parent and any of its Restricted Subsidiaries may pay customary and reasonable fees to the Sponsor and the Advance Shareholders for any transaction-based financial advisory, financing, underwriting or placement services or in respect of other investment banking activities and, in any such case, in connection with acquisitions, divestitures, debt incurrences or equity issuances that are permitted by this Agreement, provided that such fees are approved in good faith by a majority of the members of the board of directors (or similar governing body), or a majority of the disinterested members of the board of directors (or similar governing body), of the Borrower or Parent;

(k)payments of principal, interest and fees hereunder (or under other Indebtedness) to Affiliated Persons and Sponsor Debt Funds that are Lenders (or lenders under other Indebtedness) solely in their capacities as lenders; and

(l)transactions on terms and conditions substantially as favorable to Parent or such Restricted Subsidiary as would be obtained by Parent or such Restricted Subsidiary at that time in a comparable arm’s-length transaction with a Person other than an Affiliate.

9.07[Reserved].

9.08[Reserved].

9.09[Reserved].

9.10Modifications of Certificate of Incorporation, By-Laws and Certain Other Agreements; Limitations on Voluntary Prepayments of Junior Indebtedness.  Parent will not, and will not permit any of its Restricted Subsidiaries to:

(a)except in connection with a Permitted Refinancing thereof, make any voluntary or optional payment or prepayment on or redemption or acquisition for value of, any Permitted Junior Priority Refinancing Debt or other Junior Lien Debt (collectively a “Junior-Lien Financing”) or any other Junior Financing (other than any such Junior Financing constituting unsecured Indebtedness that is not Subordinated Indebtedness) prior to scheduled maturity (each a “Voluntary Prepayment”) (it being understood that each of the following shall be permitted: (A) AHYDO “catch-up” payments and payments of regularly scheduled principal and interest (including default interest) and (B) indemnity and expense reimbursement payments); provided that Parent or any of its Restricted Subsidiaries may (w) make any Voluntary Prepayment of Seller Debt, (x) make Voluntary Prepayments of any Junior-Lien Financing and any other Junior Financing outstanding (1) in an aggregate principal amount not to exceed $75,000,000, (2) in an amount not to exceed the Available Amount at such time, so long as (i) no Event of Default has occurred and is continuing at the time of such payments or would exist after giving effect

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to the Voluntary Prepayment, and (ii) the First Lien Net Leverage Ratio (calculated on a Pro Forma Basis) for the Calculation Period most recently ended does not exceed 4.70:1.00, (3) to the extent made with proceeds from an IPO or with Net Cash Proceeds from an issuance of Qualified Equity Interests and (4) in an unlimited amount, so long as the Total Net Leverage Ratio (calculated on a Pro Forma Basis) for the Calculation Period most recently ended does not exceed 4.00:1.00, and (y)  any Junior-Lien Financing or Junior Financing to Equity Interests (other than Disqualified Equity Interests) of Parent or any of its direct or indirect parents; or

(b)amend, modify or change its certificate or articles of incorporation, certificate of formation, limited liability company agreement, by-laws (or the equivalent organizational documents), as applicable, or the documentation governing any Junior-Lien Financing, Subordinated Indebtedness with an outstanding principal amount in excess of $10,000,000 or other Junior Financing with an outstanding principal amount in excess of $10,000,000 (other than any such Junior Financing constituting unsecured Indebtedness that is not Subordinated Indebtedness), unless such amendment, modification, change or other action contemplated by this clause (b) would not be materially adverse to the interests of the Lenders and the terms of any such amendment, modification, change or other action will not violate any of the other provisions of this Agreement or any other Credit Document.

9.11Negative Pledge.  Parent will not, and will not permit any of its Restricted Subsidiaries to, enter into or permit to exist any agreement, instrument or other undertaking (each, a “Contractual Obligation”) to which Parent or such Restricted Subsidiary is a party (other than this Agreement or any other Credit Document) that limits the ability of any Credit Party to create, incur, assume or suffer to exist Liens on property of such Credit Party for the benefit of the Secured Creditors with respect to the Obligations or under the Credit Documents; provided that the foregoing shall not apply to (i) Contractual Obligations which exist on the Effective Date, (ii) Contractual Obligations which are binding on a Restricted Subsidiary of Parent at the time such Restricted Subsidiary first becomes a Restricted Subsidiary of Parent, so long as such Contractual Obligations were not entered into solely in contemplation of such Person becoming a Restricted Subsidiary of Parent, (iii) Contractual Obligations which arise in connection with any sale, transfer or other disposition permitted by Section 9.02 and relate solely to the assets or Person subject to such sale, transfer or other disposition, (iv) Contractual Obligations which are customary provisions in joint venture agreements and other similar agreements applicable to joint ventures permitted under Section 9.05 and applicable solely to such joint venture entered into in the ordinary course of business, (v) Contractual Obligations which are negative pledges and restrictions on Liens in favor of any holder of Indebtedness permitted under Section 9.04 but solely to the extent any negative pledge relates to the property financed by such Indebtedness, (vi) Contractual Obligations which are customary restrictions on leases, subleases, licenses or asset sale agreements otherwise permitted hereby so long as such restrictions relate to the assets subject thereto, (vii) Contractual Obligations which comprise restrictions imposed by any agreement relating to secured Indebtedness permitted pursuant to Section 9.04 and to the extent that such restrictions apply only to the property or assets securing such Indebtedness or to Parent or any of its Restricted Subsidiaries incurring or guaranteeing such Indebtedness, (viii) Contractual Obligations which are customary provisions restricting subletting or assignment of any lease governing a leasehold interest of Parent or any of its Restricted Subsidiaries, (ix) Contractual Obligations which are customary provisions restricting assignment of any agreement entered into in the ordinary course of business, (x) Contractual Obligations which are restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business, (xi) Contractual Obligations which arise in connection with cash or other deposits permitted under Sections 9.01 and 9.05 and limited to such cash or deposit, (xii) any documentation governing Incremental Equivalent Debt, Permitted Unsecured Refinancing Debt, Permitted Pari Passu Refinancing Debt, Permitted Ratio Debt, Permitted Junior Priority Refinancing Debt, Refinanced Debt or any other Indebtedness permitted hereunder or any documentation governing any Permitted Refinancing incurred to refinance any such Indebtedness referenced in this clause (xii);

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provided that such restrictions shall be no more restrictive in any material respect than the restrictions and conditions in the Credit Documents or, in the case of Junior Financing, are market terms at the time of issuance, (xiii) the ABL Obligations or any Permitted Refinancing thereof, or (xiv) apply by reasonable application of any applicable laws, rule, regulation or order or are required by any Governmental Authority having jurisdiction over Parent or any of its Restricted Subsidiaries.

9.12Business; etc.  Parent will not, and will not permit any of its Restricted Subsidiaries to, engage directly or indirectly in any material line of business substantially different from the businesses engaged in by Parent and its Restricted Subsidiaries as of the Effective Date and businesses reasonably related, ancillary or complementary thereto or reasonable extensions thereof.

SECTION 10.Events of Default and Remedies.

10.01Upon the occurrence of any of the following specified events (each, an “Event of Default”):

(a)Payments.  The Borrower shall (x) default in the payment when due of any principal of any Loan or any Note, or (y) default, and such default shall continue unremedied for five or more Business Days, in the payment when due of any interest on any Loan or any Note or any Fees or any other amounts owing hereunder or under any other Credit Document; or

(b)Representations, etc.  Any representation, warranty or statement made, confirmed or deemed made by any Credit Party herein or in any other Credit Document or in any certificate delivered to the Administrative Agent or the Lenders pursuant hereto or thereto shall prove to be untrue in any material respect on the date as of which made, confirmed or deemed made; or

(c)Covenants.  Parent or any of its Restricted Subsidiaries shall (x) default in the due performance or observance by it of any term, covenant or agreement contained in Section 8.01(e)(i) or Section 9 or (y) default in the due performance or observance by it of any other term, covenant or agreement contained in this Agreement or any other Credit Document (other than those set forth in Sections 10.01(a), 10.01(b) and clause (x) of this 10.01(c)) and such default shall continue unremedied for a period of 30 days after the date on which written notice thereof is given to the Borrower by the Administrative Agent; or

(d)Default Under Other Agreements.  (i) Parent or any of its Restricted Subsidiaries shall (A) default in any payment of any Indebtedness (other than the Obligations) having an outstanding aggregate principal amount of more than $50,000,000 beyond the period of grace, if any, provided in an instrument or agreement under which such Indebtedness was created or (B) default in the observance or performance of any agreement or condition relating to any Indebtedness having an outstanding aggregate principal amount of more than $50,000,000 (other than, with respect to Indebtedness consisting of Interest Rate Protection Agreements or Other Hedging Agreements, termination events or equivalent events pursuant to the terms of such Interest Rate Protection Agreements or Other Hedging Agreements and not as a result of any default thereunder by any Credit Party) beyond any period of grace, if any, provided therein or contained in any instrument or agreement evidencing, securing or relating thereto beyond any period of grace, if any, provided therein, or any other event shall occur or condition exist beyond any period of grace applicable thereto, the effect of which default or other event or condition is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause (determined without regard to whether any notice is required), any such Indebtedness to become due prior to its stated maturity, or (ii) any Indebtedness (other than the Obligations) of Parent or any of its Restricted Subsidiaries having an outstanding aggregate principal amount of more than $50,000,000 shall be declared to be (or shall become) due and payable, or

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required to be prepaid other than by a regularly scheduled required prepayment or as a mandatory repayment (unless such required prepayment or mandatory repayment results from a default thereunder or an event of the type that constitutes an Event of Default), prior to the stated maturity thereof; provided that clauses (i) and (ii) shall not apply to (x) secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness, if such sale or transfer is permitted hereunder and under the documents providing for such Indebtedness, (y) Indebtedness which is convertible into Equity Interests and converts to Equity Interests in accordance with its terms and such conversion is not prohibited hereunder, or (z) any breach or default that is (I) remedied by Parent, Holdings, the Borrower or the applicable Restricted Subsidiary or (II) waived (including in the form of amendment) by the required holders of the applicable item of Indebtedness, in either case, prior to the acceleration of Loans pursuant to this Section 10. Notwithstanding the foregoing provisions of this Section 10.01(d), no breach, default or event of default under the ABL Loan Documents shall constitute an Event of Default under this Section 10.01(d), except (X) any event of default, giving effect to any applicable grace period, under Section 8.1 of the ABL Credit Agreement (or any successor provision thereto), (Y) any event of default (except any event of default described in the immediately preceding clause (X) or arising as a result of a breach of Section 7.1 of the ABL Credit Agreement (or any other financial covenant subsequently added to the ABL Credit Agreement or contained in any Permitted Refinancing of the ABL Credit Agreement)), giving effect to any applicable grace period, under the ABL Credit Agreement that remains unremedied and unwaived for 60 consecutive days after the occurrence thereof, or (Z) any acceleration of the Advances or termination of the Revolver Commitments (each as defined in the ABL Credit Agreement) prior to the scheduled maturity thereof as a result of an event of default under the ABL Loan Documents; or

(e)Bankruptcy, etc.  Parent or any of its Restricted Subsidiaries (other than an Immaterial Subsidiary) shall commence a voluntary case concerning itself under Title 11 of the United States Code entitled “Bankruptcy,” as now or hereafter in effect, or any successor thereto (the “Bankruptcy Code”); or an involuntary case is commenced against Parent or any of its Restricted Subsidiaries (other than an Immaterial Subsidiary), and the petition is not controverted within 10 days, or is not dismissed within 60 days after the filing thereof; or a custodian (as defined in the Bankruptcy Code) is appointed for, or takes charge of, all or substantially all of the property of Parent or any of its Restricted Subsidiaries (other than an Immaterial Subsidiary), to operate all or any substantial portion of the business of Parent or any of its Restricted Subsidiaries (other than an Immaterial Subsidiary), or Parent or any of its Restricted Subsidiaries (other than an Immaterial Subsidiary) commences any other proceeding under any reorganization, arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or liquidation or similar law of any jurisdiction whether now or hereafter in effect relating to Parent or any of its Restricted Subsidiaries (other than an Immaterial Subsidiary), or there is commenced against Parent or any of its Restricted Subsidiaries any such proceeding which remains undismissed for a period of 60 days after the filing thereof, or Parent or any of its Restricted Subsidiaries (other than an Immaterial Subsidiary) is adjudicated insolvent or bankrupt; or any order of relief or other order approving any such case or proceeding is entered; or Parent or any of its Restricted Subsidiaries (other than an Immaterial Subsidiary) makes a general assignment for the benefit of creditors; or Parent or any of its Restricted Subsidiaries (other than an Immaterial Subsidiary) shall become unable, admit in writing its inability or fail generally to pay its debts as they become due; or

(f)ERISA.  (i) any of Parent, Holdings, the Borrower or any ERISA Affiliate shall engage in any non-exempt “prohibited transaction” (as defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan, (ii) any Plan has failed to meet the minimum funding standards of Section 412 or 430 of the Code or Section 302 or 303 of ERISA, whether or not waived, or any Lien in favor of the PBGC or a Plan shall arise on the assets of Parent, Holdings, the Borrower or any ERISA Affiliate thereof, (iii) a Reportable Event shall occur with respect to, or proceedings shall commence to have a trustee appointed, or a trustee shall be appointed, to administer or to terminate, any Plan, (iv) any

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Plan shall terminate for purposes of Title IV of ERISA, (v) Parent, Holdings, the Borrower or any ERISA Affiliate thereof shall incur liability in connection with a withdrawal from, or the Insolvency of, a Multiemployer Plan, (vi) a determination has been made that any Plan is considered an at-risk plan within the meaning of Section 430 of the Code or Section 303 of ERISA, (vii) a Multiemployer Plan is in endangered or critical status under Section 305 of ERISA, (viii) any contribution required to be made with respect to a Plan, Multiemployer Plan or Foreign Pension Plan has not been timely made, (ix) a Plan has an Unfunded Current Liability; or (x) the occurrence of any other event or condition which constitutes an ERISA Event with respect to the Plan, and in each case in clauses (i) through (x)) above, such event or condition, together with all other such events or conditions, if any, has had, or would reasonably be expected to have, a Material Adverse Effect; or

(g)Security Documents.  Any of the material Security Documents shall cease to be in full force and effect, or shall cease to give the Security Agent for the benefit of the Secured Creditors, a valid and perfected security interest in, and Lien on, a material portion of the Collateral; provided that the failure to have such a valid and perfected Lien on Collateral in favor of the Security Agent shall not give rise to an Event of Default under this Section 10.01(g), (i) if such lack of validity or perfection results from (A) any act or omission of the Security Agent or the Administrative Agent (so long as such act or omission does not result from the breach or non-compliance by a Credit Party with the terms of any Credit Document) or (B) from the sale, transfer or other disposition of the applicable Collateral to a Person that is not a Credit Party in a transaction permitted under this Agreement or (ii) as to Collateral consisting of real property, to the extent that such losses are covered by a lender’s title insurance policy and such insurer has not denied coverage; or

(h)Guaranties.  Any Guaranty or any material provision thereof shall cease to be in full force or effect (except in accordance with the terms thereof), or any Guarantor shall deny or disaffirm in writing such Guarantor’s obligations under the Guaranty to which it is a party; or

(i)Other Credit Documents. Any material Credit Document (other than in accordance with the terms thereof or otherwise as described in clause (h) or clause (l) of this Section 10.01) shall for any reason cease to be in full force and effect or be asserted by any Credit Party not to be a legal, valid and binding obligation of any party thereto; or

(j)Judgments.  One or more judgments or decrees shall be entered against Parent or any Restricted Subsidiary of Parent for payment of money in an aggregate amount in excess of $50,000,000 (not paid or to the extent not covered by a reputable and solvent insurance company) and such judgments and decrees shall be final and non-appealable and shall not be vacated, satisfied, discharged or stayed or bonded pending appeal for any period of 60 consecutive days; or

(k)Change of Control.  A Change of Control shall occur; or

(l)Intercreditor Agreement.  The Intercreditor Agreement or, after the execution thereof, any Pari Passu Intercreditor Agreement or Other Intercreditor Agreement, or any material provision of any thereof shall cease to be in full force or effect (except in accordance with its terms), any Credit Party shall deny or disaffirm in writing its obligations thereunder;

then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing, the Administrative Agent, upon the written request of the Required Lenders, shall by written notice to the Borrower, take any or all of the following actions (provided that, if an Event of Default specified in Section 10.01(e) shall occur with respect to the Borrower, the result which would occur upon the giving of written notice by the Administrative Agent as specified in clauses (a) and (b) below, shall occur automatically without the giving of any such notice):  (a) declare the Total Commitment terminated,

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whereupon the Commitment of each Lender shall forthwith terminate immediately without any other notice of any kind; (b) declare the principal of and any accrued interest in respect of all Loans and the Notes and all Obligations owing hereunder and thereunder to be, whereupon the same shall become, forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby waived by each Credit Party; (c) subject to the terms of the Intercreditor Agreement, enforce, as Security Agent, all of the Liens and security interests created pursuant to the Security Documents in accordance with the terms thereof; and (d) enforce each Guaranty.

10.02Application of Funds.  After the exercise of remedies (subject to the terms of the Intercreditor Agreement) provided for in Section 10.01 (or after the Loans have automatically become immediately due and payable as provided in Section 10.01), any amounts received on account of the Secured Obligations shall be applied by the Administrative Agent in the following order:

First, to payment of that portion of the Secured Obligations constituting fees, indemnities, expenses and other amounts (other than principal and interest, but including expense of counsel payable under Section 12.01 and amounts payable under Section 2.10) payable to the Administrative Agent and the Security Agent in their respective capacities as such;

Second, to payment of that portion of the Secured Obligations constituting fees, indemnities and other amounts (other than principal and interest and other than any amounts due under Secured Hedging Agreements) payable to the Secured Creditors (including expenses of counsel payable under Section 12.01 and amounts payable under Section 2.10), ratably among them in proportion to the amounts described in this clause Second payable to them;

Third, to payment of that portion of the Secured Obligations constituting accrued and unpaid interest on the Loans and any interest due on amounts unpaid under Secured Hedging Agreements, ratably among the Secured Creditors in proportion to the respective amounts described in this clause Third payable to them;

Fourth, to payment of that portion of the Secured Obligations constituting unpaid principal of the Loans and any amounts due under Secured Hedging Agreements (other than as previously applied under clause Third above), ratably among the Secured Creditors in proportion to the respective amounts described in this clause Fourth held by them;

Fifth, to the payment of all other Secured Obligations of the Credit Parties that are due and payable to the Administrative Agent and the other Secured Creditors on such date, ratably based upon the respective aggregate amounts of all such Secured Obligations owing to the Administrative Agent and the other Secured Creditors on such date; and

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

SECTION 11.The Administrative Agent.

11.01Appointment.  The Lenders hereby irrevocably designate and appoint MSSF as Administrative Agent and Security Agent (for purposes of this Section 11 and Section 12.01, the term “Administrative Agent” also shall include MSSF in its capacity as Security Agent pursuant to the Security Documents) to act as specified herein and in the other Credit Documents and MSSF hereby accepts such designation and appointment.  Each Lender hereby irrevocably authorizes, and each holder of any Note by the acceptance of such Note shall be deemed irrevocably to authorize the Administrative Agent to take such action on its behalf under the provisions of this Agreement, the other Credit Documents and any

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other instruments and agreements referred to herein or therein and to exercise such powers and to perform such duties hereunder and thereunder as are specifically delegated to or required of the Administrative Agent by the terms hereof and thereof and such other powers as are reasonably incidental thereto.  The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder by or through its officers, directors, agents, sub-agents, employees or affiliates.  Any sub-agent may perform any and all its duties and exercise its rights and powers by or through its directors, trustees, officers, employees, agents, advisors or affiliates. The exculpatory provisions contained in this Section 11 shall apply to the Administrative Agent and any sub-agent and to their respective directors, trustees, officers, employees, agents, advisors and affiliates, and shall apply to their respective activities in connection with the syndication of the Loans, as well as activities as Agent or sub-agent.

11.02Nature of Duties.  (a) The Administrative Agent shall not have any duties or responsibilities except those expressly set forth in this Agreement and in the other Credit Documents.  Neither the Administrative Agent nor any of its officers, directors, agents, employees or affiliates shall be liable for any action taken or omitted by it or them hereunder or under any other Credit Document or in connection herewith or therewith, unless caused by its or their gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision).  The duties of the Administrative Agent shall be mechanical and administrative in nature; the Administrative Agent shall not have by reason of this Agreement or any other Credit Document a fiduciary relationship in respect of any Lender or the holder of any Note; and nothing in this Agreement or in any other Credit Document, expressed or implied, is intended to or shall be so construed as to impose upon the Administrative Agent any obligations in respect of this Agreement or any other Credit Document except as expressly set forth herein or therein.

(b)Notwithstanding any other provision of this Agreement or any provision of any other Credit Document, each of the Joint Lead Arrangers, the Joint Book-Running Managers, the Syndication Agent and the Documentation Agent are named as such for recognition purposes only, and in its capacity as such shall have no powers, duties, responsibilities or liabilities with respect to this Agreement or the other Credit Documents or the transactions contemplated hereby and thereby; it being understood and agreed that each of the Joint Lead Arrangers, the Joint Book-Running Managers, the Syndication Agent and the Documentation Agent shall be entitled to all indemnification and reimbursement rights in favor of the Administrative Agent as, and to the extent, provided for under Sections 11.06 and 12.01.  Without limitation of the foregoing, none of the Joint Lead Arrangers, the Joint Book-Running Managers, the Syndication Agent or the Documentation Agent shall, solely by reason of this Agreement or any other Credit Documents, have any fiduciary relationship in respect of any Lender or any other Person.

11.03Lack of Reliance on the Administrative Agent; Etc.  Independently and without reliance upon the Administrative Agent, each Lender and the holder of each Note, to the extent it deems appropriate, has made and shall continue to make (a) its own independent investigation of the financial condition and affairs of Parent and its Subsidiaries in connection with the making and the continuance of the Loans and the taking or not taking of any action in connection herewith and (b) its own appraisal of the creditworthiness of Parent and its Subsidiaries and, except as expressly provided in this Agreement, the Administrative Agent shall not have any duty or responsibility, either initially or on a continuing basis, to provide any Lender or the holder of any Note with any credit or other information with respect thereto, whether coming into its possession before the making of the Loans or at any time or times thereafter.  The Administrative Agent shall not be responsible to any Lender or the holder of any Note for any recitals, statements, information, representations or warranties herein or in any document, certificate or other writing delivered in connection herewith or for the execution, effectiveness, genuineness, validity, enforceability, perfection, collectability, priority or sufficiency of this Agreement or any other Credit Document or the financial condition of Parent or any of its Subsidiaries or be required to make any

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inquiry concerning either the performance or observance of any of the terms, provisions or conditions of this Agreement or any other Credit Document, or the financial condition of Parent or any of its Subsidiaries or the existence or possible existence of any Default or Event of Default.  The Administrative Agent shall be deemed to have no knowledge of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent by Parent, Holdings, the Borrower or a Lender.

11.04Certain Rights of the Agents.  If any Agent shall request instructions from the Required Lenders (or such other Lenders as may be required to give such instructions under Section 12.12) with respect to any act or action (including failure to act) in connection with this Agreement or any other Credit Document, such Agent shall be entitled to refrain from such act or taking such action unless and until such Agent shall have received instructions from the Required Lenders (or such other Lenders, as the case may be); and such Agent shall not incur liability to any Lender by reason of so refraining.  Without limiting the foregoing, neither any Lender nor the holder of any Note shall have any right of action whatsoever against such Agent as a result of such Agent acting or refraining from acting hereunder or under any other Credit Document in accordance with the instructions of the Required Lenders (or if required pursuant to Section 12.12, all Lenders).

11.05Reliance.  The Administrative Agent shall be entitled to rely, and shall be fully protected in relying, upon any note, writing, resolution, notice, statement, certificate, order or other document or electronic message signed, sent or made by any Person that the Administrative Agent believed to be the proper Person, and, with respect to all legal matters pertaining to this Agreement and any other Credit Document and its duties hereunder and thereunder, upon advice of counsel (who may be counsel for the Borrower), independent accountants and other experts selected by the Administrative Agent and shall not be liable for any action taken or not taken in good faith by it in accordance with the advice of any such counsel, accountants or experts.  The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions hereof relating to Disqualified Lenders.  Without limiting the generality of the foregoing, the Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether any Lender or participant or prospective Lender or participant is a Disqualified Institution or (y) have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified Lender.

11.06Indemnification.  To the extent the Administrative Agent (or any affiliate thereof) is not reimbursed and indemnified by the Borrower, the Lenders will reimburse and indemnify the Administrative Agent (and any affiliate thereof) in proportion to their respective “percentage” as used in determining the Required Lenders (determined as if there were no Defaulting Lenders) for and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements of whatsoever kind or nature which may be imposed on, asserted against or incurred by the Administrative Agent (or any affiliate thereof) in performing its duties hereunder or under any other Credit Document or in any way relating to or arising out of this Agreement or any other Credit Document; provided that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, claims, actions, judgments, suits, costs, expenses or disbursements resulting from the Administrative Agent’s (or such affiliate’s) gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision).

11.07The Administrative Agent in its Individual Capacity.  With respect to its obligation to make Loans under this Agreement, the Administrative Agent shall have the rights and powers specified herein for a “Lender” and may exercise the same rights and powers as though it were not performing the duties specified herein; and the term “Lender,” “Required Lenders,” “holders of Notes” or any similar terms shall, unless the context clearly indicates otherwise, include the Administrative Agent in

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its individual capacity.  The Administrative Agent and its affiliates may accept deposits from, lend money to, and generally engage in any kind of banking, investment banking, trust or other business with, or provide debt financing, equity capital or other services (including financial advisory services) to any Credit Party or any Affiliate of any Credit Party (or any Person engaged in a similar business with any Credit Party or any Affiliate thereof) as if they were not performing the duties specified herein, and may accept fees and other consideration from any Credit Party or any Affiliate of any Credit Party for services in connection with this Agreement and otherwise without having to account for the same to the Lenders.

11.08Holders.  Any Agent may deem and treat the payee of any Note as the owner thereof for all purposes hereof unless and until a written notice of the assignment, transfer or endorsement thereof, as the case may be, shall have been filed with the Administrative Agent.  Any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is the holder of any Note shall be conclusive and binding on any subsequent holder, transferee, assignee or endorsee, as the case may be, of such Note or of any Note or Notes issued in exchange therefor.

11.09Resignation by the Administrative Agent.  (a) The Administrative Agent may resign from the performance of all of its respective functions and duties hereunder and/or under the other Credit Documents at any time by notifying the Lenders and the Borrower.  Such resignation shall take effect upon the appointment of a successor Administrative Agent pursuant to clauses (b) and (c) below or as otherwise provided below.

(b)Upon any such notice of resignation by the Administrative Agent, the Required Lenders shall appoint a successor Administrative Agent hereunder or thereunder who shall be a commercial bank or trust company reasonably acceptable to the Borrower, which acceptance shall not be unreasonably withheld or delayed, provided that (x) the Borrower’s approval shall not be required if an Event of Default has occurred and is continuing and (y) in no event shall any such successor Administrative Agent be a Defaulting Lender or a Disqualified Lender.

(c)If no successor Administrative Agent shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, with the consent of the Borrower (which consent shall not be unreasonably withheld or delayed) (provided that the Borrower’s approval shall not be required if an Event of Default has occurred and is continuing), then the retiring Administrative Agent may, on behalf of the Lenders, appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank who shall serve as Administrative Agent hereunder or thereunder until such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided above.

(d)If no successor Administrative Agent has been appointed pursuant to clause (b) or (c) above by such 30th day after the date such notice of resignation was given by such Administrative Agent, such Administrative Agent’s resignation shall become effective and the Required Lenders shall thereafter perform all the duties of such Administrative Agent hereunder and/or under any other Credit Document until such time, if any, as the Required Lenders appoint a successor Administrative Agent.

(e)Upon a resignation of the Administrative Agent pursuant to this Section 11.09, the Administrative Agent shall remain indemnified to the extent provided in this Agreement and the other Credit Documents and the provisions of this Section 11 (and the analogous provisions of the other Credit Documents) and Section 12.01 shall continue in effect for the benefit of the Administrative Agent, its sub-agents and their respective Affiliates for each of their actions and inactions while serving as the Administrative Agent.

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(f)Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor.

11.10Collateral Matters.  (a) Each Lender authorizes and directs the Security Agent to enter into the Security Documents and the Intercreditor Agreement, any Pari Passu Intercreditor Agreement, any Second Lien Intercreditor Agreement and any Other Intercreditor Agreement for the benefit of the Lenders and the other Secured Creditors (and any amendments, amendments and restatements, restatements or waivers of or supplements to or other modifications to, such agreements in connection with the incurrence by any Credit Party of any Permitted Pari Passu Refinancing Debt, or any Permitted Junior Priority Refinancing Debt or other Junior Lien Debt, in order to permit such Indebtedness to be secured by a valid, perfected lien (with such priority as may be designated by the Borrower or relevant Restricted Subsidiary, to the extent such priority is permitted by the Credit Documents)).  Each Lender hereby agrees, and each holder of any Note by the acceptance thereof will be deemed to agree, that, except as otherwise set forth herein, any action taken by the Required Lenders in accordance with the provisions of this Agreement or the Security Documents, and the exercise by the Required Lenders of the powers set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall be authorized and binding upon all of the Lenders.  The Security Agent is hereby authorized on behalf of all of the Lenders, without the necessity of any notice to or further consent from any Lender, from time to time prior to an Event of Default, to take any action with respect to any Collateral or Security Documents which may be necessary to perfect and maintain perfected the security interest in and liens upon the Collateral granted pursuant to the Security Documents.

(b)The Lenders hereby authorize the Security Agent, (1) at its option and in its discretion, to release any Lien granted to or held by the Security Agent upon any Collateral (i) upon termination of the Total Commitment and payment and satisfaction of all of the Obligations (other than inchoate indemnification and reimbursement obligations) at any time arising under or in respect of this Agreement or the Credit Documents or the transactions contemplated hereby or thereby, (ii) constituting property being sold or otherwise disposed of (to Persons other than Parent, Holdings and the Qualified Credit Parties) upon the sale or other disposition thereof in compliance with Section 9.02, (iii) if approved, authorized or ratified in writing by the Required Lenders (or all of the Lenders hereunder, to the extent required by Section 12.12), (iv) as otherwise may be expressly provided in the relevant Security Documents, in the Intercreditor Agreement and Other Intercreditor Agreements or the last sentence of each of Sections 9.01 (so long as the ABL Agent has released or concurrently releases its Lien on such Collateral) and 9.02, (v) constituting property (x) owned by any Unrestricted Subsidiary permitted to be designated as such pursuant to the terms of this Agreement or (y) following or concurrently with a sale or other disposition (to Persons other than Parent, Holdings and the Qualified Credit Parties) of a Subsidiary of Parent in compliance with Section 9.02, constituting property owned by such Subsidiary or (vi) constituting property subject to a Sale/Leaseback Transaction permitted hereunder or property subject to (or which will become subject to promptly following such release) Liens pursuant to Section 9.01(f), 9.01(g) or 9.01(m) and (2) to automatically release any Lien on any property granted to or held by the Administrative Agent or the Security Agent under any Credit Document (i) upon payment in full of all Obligations, (ii) at the time the property subject to such Lien is sold, transferred or otherwise disposed or to be sold, transferred or otherwise disposed as part of or in connection with any disposition permitted hereunder or under any other Credit Document, (iii) subject to Section 12.12, if the release of such Lien is approved, authorized or ratified in writing by the Required Lenders or (iv) if the property subject to such Lien is owned by a Guarantor, upon release of such Guarantor from its obligations under its Guaranty

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pursuant to Section 9.02, and the Security Agent shall, at the written request of the Borrower, release the Security Agent’s Liens on such property.  The Lenders hereby further authorize the Administrative Agent to release from its Guaranty any Unrestricted Subsidiary permitted to be designated as such pursuant to the terms of this Agreement (provided that no such release shall occur if such Guarantor continues to be a guarantor in respect of any of the ABL Loan Documents, or continues to be a guarantor of any Junior Lien Debt), or any Subsidiary of Parent upon the sale or other disposition thereof (to Persons other than Parent, Holdings and the Qualified Credit Parties) in compliance with Section 9.02, and the Administrative Agent shall, at the written request of the Borrower, release such Unrestricted Subsidiary or Subsidiary of Parent sold or disposed of in compliance with Section 9.02 from its Guaranty.  Upon request by the Administrative Agent at any time, the Lenders will confirm in writing the Security Agent’s authority to release particular types or items of Collateral pursuant to this Section 11.10.

(c)The Security Agent shall have no obligation whatsoever to the Lenders or to any other Person to assure that the Collateral exists or is owned by any Credit Party or is cared for, protected or insured or that the Liens granted to the Security Agent herein or pursuant hereto have been properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to any particular priority, or to exercise or to continue exercising at all or in any manner or under any duty of care, disclosure or fidelity any of the rights, authorities and powers granted or available to the Security Agent in this Section 11.10 or in any of the Security Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Security Agent may act in any manner it may deem appropriate, in its sole discretion, given the Security Agent’s own interest in the Collateral as one of the Lenders and that the Security Agent shall have no duty or liability whatsoever to the Lenders, except for its gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision).

11.11Delivery of Information.  The Administrative Agent shall not be required to deliver to any Lender originals or copies of any documents, instruments, notices, communications or other information received by the Administrative Agent from any Credit Party, any Subsidiary thereof, the Required Lenders, any Lender or any other Person under or in connection with this Agreement or any other Credit Document except (a) as specifically provided in this Agreement or any other Credit Document and (b) as specifically requested from time to time in writing by any Lender with respect to a specific document, instrument, notice or other written communication received by and in the possession of the Administrative Agent at the time of receipt of such request and then only in accordance with such specific request.

11.12Withholding.  To the extent required by any applicable law, the Administrative Agent may withhold from any payment to any Lender an amount equivalent to any withholding tax applicable to such payment. If the IRS or any other Governmental Authority asserts a claim that the Administrative Agent did not properly withhold tax from amounts paid to or for the account of any Lender for any other reason, or the Administrative Agent has paid over to the IRS applicable withholding tax relating to a payment to a Lender but no deduction has been made from such payment, such Lender shall indemnify the Administrative Agent fully for all amounts paid, directly or indirectly, by the Administrative Agent as tax or otherwise, including any penalties or interest and together with any and all expenses incurred, unless such amounts have been indemnified by any Credit Party or the relevant Lender.

SECTION 12.Miscellaneous.

12.01Payment of Expenses; Indemnification, etc.  (a) The Borrower hereby agrees to:  (i) whether or not the transactions herein contemplated are consummated, pay all reasonable and documented out-of-pocket costs and expenses of the Administrative Agent (including, without limitation,

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the reasonable and documented fees and disbursements of Shearman & Sterling LLP and a single local counsel in each appropriate jurisdiction) in connection with the preparation, execution, delivery and administration of this Agreement and the other Credit Documents and the documents and instruments referred to herein and therein and any amendment, waiver or consent relating hereto or thereto, of the Administrative Agent and its Affiliates in connection with its or their syndication efforts with respect to this Agreement and of the Administrative Agent, and after the occurrence and during the continuance of an Event of Default, each of the Lenders in connection with the enforcement of this Agreement and the other Credit Documents and the documents and instruments referred to herein and therein or in connection with any refinancing or restructuring of the credit arrangements provided under this Agreement in the nature of a “work-out” or pursuant to any insolvency or bankruptcy proceedings (including, in each case without limitation, the reasonable and documented fees and disbursements of counsel for the Administrative Agent and, after the occurrence and during the continuance of an Event of Default, counsel for the Lenders; provided that reasonable and documented fees and disbursements of counsel shall be limited to (x) one primary counsel for the Administrative Agent and the Lenders and, if reasonably required by the Administrative Agent, a single local counsel in each appropriate jurisdiction and (y) if there is a conflict of interest, where the Lenders affected by such conflict notify the Borrower of the existence of such conflict that requires separate representation for any Lender, in which case each group of Lenders similarly affected shall, as a whole, be entitled to one separate counsel; and (ii) indemnify the Administrative Agent, the Security Agent, each Joint Lead Arranger, each Joint Book-Running Manager, the Syndication Agent, the Documentation Agent and each Lender, and each of their respective officers, directors, employees, representatives, agents, controlling persons, trustees and investment advisors (each, an “Indemnified Person”) from and hold each of them harmless against any and all liabilities, obligations (including removal or remedial actions), losses, damages, penalties, claims, actions, judgments, suits, costs, expenses and disbursements (including reasonable and documented attorneys’ and consultants’ fees and disbursements, but limited, in the case of legal fees, to the reasonable and documented fees, disbursements and other charges of one counsel for all Indemnified Persons and, if necessary, of a single separate firm of local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnified Persons (and, if there is a conflict of interest, where the Indemnified Persons affected by such conflict notify the Borrower of the existence of such conflict that requires separate representation for any Indemnified Person, in which case each group of Indemnified Persons similarly affected shall, as a whole, be entitled to one separate counsel, incurred by, imposed on or assessed against any of them as a result of, or arising out of, or in any way related to, or by reason of, (A) any investigation, litigation or other proceeding (whether or not the Administrative Agent, the Security Agent, any Joint Lead Arranger, each Joint Book-Running Manager, the Syndication Agent, the Documentation Agent or any Lender is a party thereto and whether or not such investigation, litigation or other proceeding is brought by or on behalf of any Credit Party) related to the entering into and/or performance of this Agreement or any other Credit Document or the use of the proceeds of any Loans hereunder or the consummation of the Transaction or any other transactions contemplated herein or in any other Credit Document or the exercise of any of their rights or remedies provided herein or in the other Credit Documents, or (B) the actual or alleged presence of Hazardous Materials in the air, surface water or groundwater or on the surface or subsurface of any Real Property at any time owned, leased or operated by Parent or any of its Subsidiaries, the generation, storage, transportation, handling or disposal of Hazardous Materials by Parent or any of its Subsidiaries at any location, whether or not owned, leased or operated by Parent or any of its Subsidiaries, the non-compliance by Parent or any of its Subsidiaries with any Environmental Law (including applicable permits thereunder) applicable to any Real Property, or any Environmental Claim asserted against Parent, any of its Subsidiaries or any Real Property at any time owned, leased or operated by Parent or any of its Subsidiaries (but excluding, in each case, any disputes solely among Indemnified Persons (other than claims against the Administrative Agent, the Security Agent, the Syndication Agent, the Documentation Agent, any Joint Book-Running Manager or any Joint Lead Arranger solely in connection with their duties in such capacities) and any losses, liabilities, claims, damages or expenses to the extent incurred by

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reason of (x) the bad faith, gross negligence or willful misconduct of the Indemnified Person to be indemnified or (y) a material breach of any of the Credit Documents by the Indemnified Person to be indemnified (in each case, as determined by a court of competent jurisdiction in a final and non-appealable decision)).  To the extent that the undertaking to indemnify, pay or hold harmless the Administrative Agent, the Security Agent, Joint Lead Arrangers, the Joint Book-Running Managers, the Syndication Agent, the Documentation Agent or any Lender set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, the Borrower shall make the maximum contribution to the payment and satisfaction of each of the indemnified liabilities which is permissible under applicable law. For the avoidance of doubt, this Section 12.01 shall not apply to Taxes.

(b)To the full extent permitted by applicable law, none of Parent, Holdings and the Borrower and their Subsidiaries, or any Indemnified Person shall assert, and hereby waives, any claim against any other Person, on any theory of liability, for special, indirect, consequential or incidental damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof.  No Indemnified Person shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Credit Documents or the transactions contemplated hereby or thereby, except to the extent the liability of such Indemnified Person results from such Indemnified Person’s gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision).

12.02Right of Set-off.  (a) In addition to any rights now or hereafter granted under applicable law or otherwise, and not by way of limitation of any such rights, upon the occurrence and during the continuance of an Event of Default, the Administrative Agent and, subject to Section 12.23, each Lender is hereby authorized at any time or from time to time, without presentment, demand, protest or other notice of any kind to any Credit Party or to any other Person, any such notice being hereby expressly waived, to set off and to appropriate and apply any and all deposits (general or special) and any other Indebtedness at any time held or owing by the Administrative Agent or such Lender (including, without limitation, by branches and agencies of the Administrative Agent or such Lender wherever located) to or for the credit or the account of Parent or any of the other Credit Parties against and on account of the Obligations and liabilities of the Credit Parties to the Administrative Agent or such Lender under this Agreement or under any of the other Credit Documents, including, without limitation, all interests in Obligations purchased by such Lender pursuant to Section 12.04(b), and all other claims of any nature or description arising out of or connected with this Agreement or any other Credit Document, irrespective of whether or not the Administrative Agent or such Lender shall have made any demand hereunder and although said Obligations, liabilities or claims, or any of them, shall be contingent or unmatured.

(b)NOTWITHSTANDING THE FOREGOING SUBSECTION (a), AT ANY TIME THAT THE LOANS OR ANY OTHER OBLIGATION SHALL BE SECURED BY REAL PROPERTY LOCATED IN CALIFORNIA, NO LENDER SHALL EXERCISE A RIGHT OF SETOFF, LIEN OR COUNTERCLAIM OR TAKE ANY COURT OR ADMINISTRATIVE ACTION OR INSTITUTE ANY PROCEEDING TO ENFORCE ANY PROVISION OF THIS AGREEMENT OR ANY NOTE UNLESS IT IS TAKEN WITH THE CONSENT OF THE REQUIRED LENDERS OR APPROVED IN WRITING BY THE ADMINISTRATIVE AGENT, IF SUCH SETOFF OR ACTION OR PROCEEDING WOULD OR MIGHT (PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE SECTIONS 580a, 580b, 580d AND 726 OF THE CALIFORNIA CODE OF CIVIL PROCEDURE OR SECTION 2924 OF THE CALIFORNIA CIVIL CODE, IF APPLICABLE, OR OTHERWISE) AFFECT OR IMPAIR THE VALIDITY,

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PRIORITY OR ENFORCEABILITY OF THE LIENS GRANTED TO THE SECURITY AGENT PURSUANT TO THE SECURITY DOCUMENTS OR THE ENFORCEABILITY OF THE NOTES AND OTHER OBLIGATIONS HEREUNDER, AND ANY ATTEMPTED EXERCISE BY ANY LENDER OF ANY SUCH RIGHT WITHOUT OBTAINING SUCH CONSENT OF THE REQUIRED LENDERS OR THE ADMINISTRATIVE AGENT SHALL BE NULL AND VOID.  THIS SUBSECTION (b) SHALL BE SOLELY FOR THE BENEFIT OF EACH OF THE LENDERS AND THE ADMINISTRATIVE AGENT HEREUNDER.

12.03Notices.  (a) Except as otherwise expressly provided herein, all notices and other communications provided for hereunder shall be in writing (including facsimile or other electronic transmission) and mailed, telegraphed, telecopied, cabled or delivered:  if to any Credit Party, at the address specified on Schedule 12.03 or in the other relevant Credit Documents; if to any Lender, to the address, facsimile number, electronic mail address or telephone number specified in its Administrative Questionnaire; and if to the Administrative Agent, at the Notice Office; or, as to any Credit Party or the Administrative Agent, at such other address as shall be designated by such party in a written notice to the other parties hereto and, as to each Lender, at such other address as shall be designated by such Lender in a written notice to the Borrower and the Administrative Agent.  Notices and other communications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices and other communications sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient) (all such non-excluded communications being referred to herein collectively as “Communications”). Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement); provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor.

(b)[Reserved].

(c)Each of Parent, Holdings and the Borrower hereby acknowledges that (a) the Administrative Agent will make available to the Lenders materials and/or information provided by or on behalf of Parent, Holdings and/or the Borrower hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive information of a type that would constitute material non-public information with respect to the Borrower or its securities) (each, a “Public Lender”). Each of Parent, Holdings and the Borrower hereby agrees that (w) at the reasonable request of the Administrative Agent Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” Parent, Holdings and the Borrower shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Borrower Materials as not containing any information of a type that would constitute material non-public information with respect to Parent, Holdings or the Borrower or its securities for purposes of United States federal securities laws (provided, however, that to the extent such Borrower Materials constitute Confidential Information, they shall be treated as such as set forth in Section 12.16); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor;” and (z) the Administrative

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Agent shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not marked as “Public Investor.”

(d)Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to Communications that are not made available through the “Public Side Information” portion of the Platform and that may contain information of a type that would constitute material non-public information with respect to Parent, Holdings or the Borrower or its securities for purposes of United States Federal or state securities laws.

(e)THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE”.  NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS AFFILIATES WARRANTS THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN THE COMMUNICATIONS.  NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE PLATFORM.  IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS AFFILIATES HAVE ANY LIABILITY TO ANY CREDIT PARTY, ANY LENDER OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF ANY CREDIT PARTY’S OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE PLATFORM, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED PRIMARILY FROM SUCH PERSON’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR BAD FAITH.

(f)Notwithstanding Section 12.03(a), the Administrative Agent and Lenders agree that the receipt of the Communications by the Administrative Agent at its e-mail address shall constitute effective delivery of the Communications to the Administrative Agent for purposes of the Credit Documents.  Each Lender agrees that receipt of notice to it (as provided in the next sentence) specifying that the Communications have been posted to the Platform shall constitute effective delivery of the Communications to such Lender for purposes of the Credit Documents.  Each Lender agrees to notify the Administrative Agent in writing (including by electronic communication) from time to time of such Lender’s e-mail address to which the foregoing notice may be sent by electronic transmission and that the foregoing notice may be sent to such e-mail address.

12.04Benefit of Agreement; Assignments; Participations.  (a)  This Agreement shall be binding upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto; provided, however, except as provided in Section 9.02, none of Parent, Holdings nor the Borrower may assign or transfer any of its rights, obligations or interest hereunder without the prior written consent of the Lenders (and any purported assignment or transfer without such consent shall be null and void) and, provided further, that, although any Lender may grant participations to Eligible Transferees in its rights hereunder, such Lender shall remain a “Lender” for all purposes hereunder (and may not transfer or assign all or any portion of its Commitment, Loans, Note or other Obligations hereunder except as provided in Sections 2.13 and 12.04(b)) and the participant shall not constitute a

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“Lender” hereunder and, provided further, that no Lender shall transfer or grant any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (i) extend the final scheduled maturity of any Loan or Note in which such participant is participating, or reduce the rate or extend the time of payment of interest thereon (except in connection with a waiver of applicability of any post-default increase in interest rates) or reduce the principal amount thereof, or increase the amount of the participant’s participation over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Commitment or a mandatory prepayment of the Loans shall not constitute a change in the terms of such participation, and that an increase in any Commitment (or the available portion thereof) or Loan (or the addition of additional Commitments or Loans) shall be permitted without the consent of any participant if the participant’s participation is not increased as a result thereof), (ii) consent to the assignment or transfer by Parent, Holdings or the Borrower of any of its rights and obligations under this Agreement or (iii) release all or substantially all of the Collateral under all of the Security Documents (except as expressly provided in the Credit Documents) supporting the Loans hereunder in which such participant is participating.  In the case of any such participation, except as otherwise set forth in Section 12.04(g), the participant shall not have any rights under this Agreement or any of the other Credit Documents (the participant’s rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation.

(b)Notwithstanding the foregoing, any Lender (or any Lender together with one or more other Lenders) may (x) assign all or a portion of its Commitment and related outstanding Obligations (or, if the Commitment has terminated, outstanding Obligations) hereunder to (i) (A) any Lender Affiliate of such Lender or (B) to one or more other Lenders (other than an Affiliated Person, except in accordance with and as expressly provided in Section 2.15) or any Lender Affiliate of any such other Lender (provided that any fund that invests in loans and is managed or advised by the same investment advisor of another fund which is a Lender (or by an Affiliate of such investment advisor) shall be treated as a Lender Affiliate of such other Lender for the purposes of this sub-clause (x)(i)(B)), or (ii) in the case of any Lender that is a fund that invests in loans, any other fund that invests in loans and is managed or advised by the same investment advisor as such Lender or by an Affiliate of such investment advisor or (y) assign all, or if less than all, a portion equal to at least $1,000,000 (or such lesser amount as the Administrative Agent and, so long as no Event of Default has occurred and is continuing under Section 10.01(a) or 10.01(e), the Borrower may otherwise agree, which agreement shall not be unreasonably withheld or delayed) in the aggregate for the assigning Lender or assigning Lenders, of such Commitment and related outstanding Obligations (or, if the Commitment has terminated, outstanding Obligations) hereunder to one or more Eligible Transferees (treating any fund that invests in loans and any other fund that invests in loans and is managed or advised by the same investment advisor of such fund or by an Affiliate of such investment advisor as a single assignor or Eligible Transferee (as applicable) (if any)), each of which assignees shall become a party to this Agreement as a Lender by execution of an Assignment and Assumption Agreement, provided that (i) upon the surrender of the relevant Notes (if any) by the assigning Lender (or, upon such assigning Lender’s indemnifying the Borrower for any lost Note pursuant to a customary indemnification agreement) new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender upon the request of such new Lender or assigning Lender, such new Notes to be in conformity with the requirements of Section 2.05 (with appropriate modifications) to the extent needed to reflect the revised Commitments and/or outstanding Loans, as the case may be, (ii) the consent of the Administrative Agent and, so long as no Event of Default under Section 10.01(a) or 10.01(e) has occurred and is continuing, the Borrower (such consent deemed to have been made with respect to any assignment if the Borrower has not responded within ten Business Days after written request for consent to such assignment) shall be required in connection with any such assignment pursuant to clause (y) above (such consent, in any case, not to be

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unreasonably withheld, delayed or conditioned), (iii) the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500 (provided that only one such fee shall be payable in the case of one or more concurrent assignments by or to investment funds managed or advised by the same investment advisor or an affiliated investment advisor and which fee may be waived or reduced in the sole discretion of the Administrative Agent), and (iv) no such transfer or assignment will be effective until recorded by the Administrative Agent on the Register pursuant to Section 12.15.  To the extent of any assignment pursuant to this Section 12.04(b), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Commitment and outstanding Loans.  At the time of each assignment pursuant to this Section 12.04(b) to a Person which is not already a Lender hereunder, the respective assignee Lender shall, (i) to the extent legally entitled to do so, provide to the Borrower the appropriate Internal Revenue Service Forms described in Section 4.04(f) and (ii) deliver to the Administrative Agent an Administrative Questionnaire (in which the assignee Lender shall designate one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Credit Parties and their Affiliates or their respective securities) will be made available and who may receive such information in accordance with the assignee Lender’s compliance procedures and applicable laws, including Federal and state securities laws).  To the extent that an assignment of all or any portion of a Lender’s Commitment and related outstanding Obligations pursuant to Section 2.13 or this Section 12.04(b) would, at the time of such assignment, result in increased costs under Section 2.10 or 4.04 from those being charged by the respective assigning Lender prior to such assignment, then the Borrower shall not be obligated to pay such increased costs (although the Borrower shall be obligated to pay increased costs, as and to the extent provided in Section 2.10 and 4.04 (excluding for the avoidance of doubt Excluded Taxes), after the date of the respective assignment).

(c)Nothing in this Agreement shall prevent or prohibit any Lender from pledging its Loans and Notes hereunder to a Federal Reserve Bank in support of borrowings made by such Lender from such Federal Reserve Bank, and any Lender which is a fund may pledge all or any portion of its Loans and Notes to its trustee or to a collateral agent providing credit or credit support to such Lender in support of its obligations to such trustee, such collateral agent or a holder of such obligations, as the case may be.  No pledge pursuant to this clause (c) shall release the transferor Lender from any of its obligations hereunder.

(d)Any Lender which assigns all of its Commitment and/or Loans hereunder in accordance with Section 12.04(b) shall cease to constitute a “Lender” hereunder, except with respect to indemnification provisions under this Agreement (including, without limitation, Sections 2.10, 2.11, 4.04, 11.06, 12.01 and 12.06), which shall survive as to such assigning Lender.

(e)(i)Any assignment of Loans by a Lender to a Sponsor Debt Fund shall be subject to the condition that each Sponsor Debt Fund shall identify itself as a Sponsor Debt Fund in its Assignment and Assumption Agreement.

(ii)If at any time a Sponsor Debt Fund ceases to maintain management and operations independent from the Sponsor or any Affiliated Person which is directly or indirectly engaged in the management of the Credit Parties, then such Sponsor Debt Fund shall no longer be permitted to purchase or participate in any assignments of Loans other than as an Affiliated Person pursuant to Section 2.15 or any related Obligations or exercise any voting rights under the Credit Documents other than those voting rights as are applicable to Affiliated Persons that are Lenders.

(iii)By acceptance of the benefits of this Section 12.04(e), each Sponsor Debt Fund that becomes a Lender hereunder shall be deemed to have agreed to be bound by the

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terms of the Credit Agreement (including, without limitation, Section 11 hereof) as a Lender hereunder; provided however, that regardless of the aggregate outstanding principal amount of all Loans beneficially owned by a Sponsor Debt Fund, for purposes of determining Lenders for all voting purposes, such Sponsor Debt Fund shall only be permitted to vote up to 49.9% of the aggregate outstanding principal amount of all Loans outstanding (to the extent that such Sponsor Debt Funds beneficially owns more than 49.9% of the aggregate outstanding principal amount of all Loans, such excess shall be excluded for any vote of the Lenders hereunder).

(f)Regardless of the aggregate outstanding principal amount of all Loans beneficially owned by a Sponsor Debt Fund, for purposes of determining Lenders for all voting purposes, such Sponsor Debt Fund shall only be permitted to vote up to 49.9% of the aggregate outstanding principal amount of all Loans outstanding (to the extent that such Sponsor Debt Funds beneficially owns more than 49.9% of the aggregate outstanding principal amount of all Loans, such excess shall be excluded for any vote of the Lenders hereunder).

(g)No assignment or participation shall be made to any Person that was a Disqualified Lender as of the date (the “Trade Date”) on which the assigning Lender entered into a binding agreement to sell and assign all or a portion of its rights and obligations under this Agreement to such Person (unless the Borrower has consented to such assignment in writing in its sole and absolute discretion, in which case such Person will not be considered a Disqualified Lender for the purpose of such assignment or participation).  For the avoidance of doubt, with respect to any assignee that becomes a Disqualified Lender after the applicable Trade Date (including as a result of the delivery of a notice pursuant to the definition of “Disqualified Lenders”), (x) such assignee shall not retroactively be disqualified from becoming a Lender and (y) the execution by the Borrower of an Assignment and Assumption Agreement with respect to such assignee will not by itself result in such assignee no longer being considered a Disqualified Lender. If any assignment or participation is made to any Disqualified Lender without the Borrower’s prior written consent in violation of this clause (g), or if any Person becomes a Disqualified Lender after the applicable Trade Date, the Borrower may, at its sole expense and effort, upon notice to the applicable Disqualified Lender and the Administrative Agent, (A) purchase or prepay the Loans of such Disqualified Lender by paying the lesser of (x) the principal amount thereof and (y) the amount that such Disqualified Lender paid to acquire such Loans, in each case plus accrued interest, accrued fees and all other amounts (other than principal amounts) payable to it hereunder and/or (B) require such Disqualified Lender to assign, without recourse (in accordance with and subject to the restrictions contained in this Section 12.04), all of its interest, rights and obligations under this Agreement to one or more Eligible Assignees at the lesser of (x) the principal amount thereof and (y) the amount that such Disqualified Lender paid to acquire such interests, rights and obligations, in each case plus accrued interest, accrued fees and all other amounts (other than principal amounts) payable to it hereunder.

(h)Notwithstanding anything to the contrary contained in this Agreement, Disqualified Lenders (A) will not (x) have the right to receive information, reports or other materials provided to the Administrative Agent or the Lenders by the Borrower, the Administrative Agent or any other Lender, (y) attend or participate in meetings attended by the Lenders and the Administrative Agent, or (z) access any electronic site established for the Lenders or confidential communications from counsel to or financial advisors of the Administrative Agent or the Lenders and (B) for purposes of any consent to any amendment, waiver or modification of, or any action under, and for the purpose of any direction to the Administrative Agent or any Lender to undertake any action (or refrain from taking any action) under this Agreement or any other Credit Document, each Disqualified Lender will be deemed to have consented in the same proportion as the Lenders that are not Disqualified Lenders consented to such matter.  The Administrative Agent shall have the right, and the Borrower hereby expressly authorizes the Administrative Agent, to (A) post the list of Disqualified Lenders provided by the Borrower and any updates thereto from time to time (collectively, the “DQ List”) on the Platform, including that portion of

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the Platform that is designated for “public side” Lenders and/or (B) provide the DQ List to each Lender requesting the same.

(i)The Borrower agrees that each participant under this Agreement shall be entitled to the benefits of Sections 2.10 and 4.04 (subject to the requirements and limitations therein, including the requirements under Section 4.04(f) (it being understood that the documentation required under Section 4.04(f) shall be delivered to the participant Lender by the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section; provided that such participant (A) agrees to be subject to the provisions of Section 2.13 as if it were an assignee under paragraph (b) of this Section; and (B) shall not be entitled to receive any greater payment under Sections 2.10 or 4.04, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent the sale of the participation to such participant is made with the Borrower’s consent and such entitlement to receive a greater payment results from any applicable law, rule or regulation that is adopted, changed or interpreted, or the interpretation or administration thereof is changed, in each case after the date hereof, by any Governmental Authority that occurs after the participant acquired the applicable participation.  Each Lender that sells a participation shall, acting solely for this purpose as an agent of the Borrower, maintain a register on which it enters the name and address of each participant and the principal amounts (and stated interest) of each participant’s interest in the Loans or other obligations under the Credit Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant’s interest in any commitments, loans, letters of credit or its other obligations under any Credit Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations.  The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.

12.05No Waiver; Remedies Cumulative. No failure or delay on the part of the Administrative Agent or any Lender in exercising any right, power or privilege hereunder or under any other Credit Document and no course of dealing between the Borrower or any other Credit Party and the Administrative Agent or any Lender shall operate as a waiver thereof; nor shall any single or partial exercise of any right, power or privilege hereunder or under any other Credit Document preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder or thereunder. The rights, powers and remedies herein or in any other Credit Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent or any Lender would otherwise have. No notice to or demand on any Credit Party in any case shall entitle any Credit Party to any other or further notice or demand in similar or other circumstances or constitute a waiver of the rights of the Administrative Agent or any Lender to any other or further action in any circumstances without notice or demand.

12.06Payments Pro Rata.  (a) Except as otherwise provided in this Agreement, the Administrative Agent agrees that promptly after its receipt of each payment from or on behalf of the Borrower in respect of any Obligations hereunder, the Administrative Agent shall distribute such payment to the Lenders entitled thereto (other than any Lender that has consented in writing to waive its pro rata share of any such payment) pro rata based upon their respective shares, if any, of the Obligations with respect to which such payment was received.

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(b)Each of the Lenders agrees that, except as contemplated in Section 12.04 or elsewhere herein, if it should receive any amount hereunder (whether by voluntary payment, by realization upon security, by the exercise of the right of setoff or banker’s lien, by counterclaim or cross action, by the enforcement of any right under the Credit Documents, or otherwise), which is applicable to the payment of the principal of, or interest on, the Loans, of a sum which with respect to the related sum or sums received by other Lenders is in a greater proportion than the total of such Obligation then owed and due to such Lender bears to the total of such Obligation then owed and due to all of the Lenders immediately prior to such receipt, then such Lender receiving such excess payment shall purchase for cash without recourse or warranty from the other Lenders an interest in the Obligations of the respective Credit Party to such Lenders in such amount as shall result in a proportional participation by all the Lenders in such amount; provided that if all or any portion of such excess amount is thereafter recovered from such Lenders, such purchase shall be rescinded and the purchase price restored to the extent of such recovery, but without interest.

(c)Notwithstanding anything to the contrary contained herein, the provisions of the preceding Sections 12.06(a) and (b) shall be subject to the express provisions of this Agreement which require, or permit, differing payments to be made to Non-Defaulting Lenders as opposed to Defaulting Lenders and the express provisions of Section 2.15 that permit differing payments among Lenders.

12.07Computations.  All computations of interest hereunder shall be made on the basis of a year of 360 days (except for interest calculated by reference to the Prime Rate in the case of Base Rate Loans, which shall be based on a year of 365 or 366 days, as applicable) for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest are payable.

12.08GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL.  (a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL, EXCEPT AS OTHERWISE PROVIDED IN ANY SECURITY DOCUMENT, BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK.  ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN, IN EACH CASE WHICH ARE LOCATED IN THE COUNTY OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT, EACH OF PARENT, HOLDINGS AND THE BORROWER HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS (INCLUDING ANY APPELLATE COURTS THEREOF).  EACH OF PARENT, HOLDINGS AND THE BORROWER HEREBY FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH COURTS LACK PERSONAL JURISDICTION OVER PARENT, HOLDINGS OR THE BORROWER, AND AGREES NOT TO PLEAD OR CLAIM, IN ANY LEGAL ACTION PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN ANY OF THE AFOREMENTIONED COURTS, THAT SUCH COURTS LACK PERSONAL JURISDICTION OVER PARENT, HOLDINGS OR THE BORROWER.  EACH OF PARENT, HOLDINGS AND THE BORROWER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE

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PREPAID, TO PARENT, HOLDINGS OR THE BORROWER AT ITS ADDRESS DESCRIBED IN SECTION 12.03, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING.  EACH OF PARENT, HOLDINGS AND THE BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION TO SUCH SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING COMMENCED HEREUNDER OR UNDER ANY OTHER CREDIT DOCUMENT THAT SERVICE OF PROCESS WAS IN ANY WAY INVALID OR INEFFECTIVE.  NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT, ANY LENDER OR THE HOLDER OF ANY NOTE TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST PARENT, HOLDINGS OR THE BORROWER IN ANY OTHER JURISDICTION.

(b)EACH OF PARENT, HOLDINGS AND THE BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (a) ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

(c)EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.

12.09Counterparts.  This Agreement may be executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which when so executed and delivered shall be deemed an original, but all of which shall together constitute one and the same instrument.  A set of counterparts executed by all the parties hereto shall be lodged with the Borrower and the Administrative Agent.  Delivery of an executed counterpart hereof by facsimile or electronic transmission shall be as effective as delivery of any original executed counterpart hereof.

12.10[Reserved].

12.11Headings Descriptive.  The headings of the several sections and subsections of this Agreement are inserted for convenience only and shall not in any way affect the meaning or construction of any provision of this Agreement.

12.12Amendment or Waiver; etc.  (a) Neither this Agreement nor any other Credit Document nor any terms hereof or thereof may be amended, waived or modified (other than upon payment in full of the Obligations) unless such amendment, waiver or modification is in writing signed by the respective Credit Parties party hereto or thereto and signed or consented to in writing by the Required Lenders or the Administrative Agent with the consent of the Required Lenders (although additional parties may be added to (and annexes may be modified to reflect such additions), and Subsidiaries of the Borrower and Collateral may be released from, the Guaranty and the Security Documents in accordance with the provisions hereof and thereof without the consent of the other Credit Parties party thereto or the Required Lenders), provided that no such amendment, waiver or modification shall, without the consent

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of each Lender (with Obligations being directly affected in the case of following clauses (i) and (iv)), (i) extend the final scheduled maturity of any Loan or Note, or reduce the rate or extend the time of payment of scheduled amortization, interest or Fees thereon (except in connection with the waiver of applicability of any post-default increase in interest rates), or reduce (or forgive) the principal amount thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in the rate of interest for the purposes of this clause (i)), (ii) release all or substantially all of the Collateral under the Security Documents or release all or substantially all of the value of the Guaranty provided by the Guarantors (except as expressly provided in the Credit Documents), (iii) amend, modify or waive any provision of this Section 12.12(a) (except for technical amendments with respect to additional extensions of credit pursuant to this Agreement which afford the protections to such additional extensions of credit of the type provided to the Commitments and the Loans on the Effective Date), or (iv) reduce the “majority” voting threshold specified in the definition of Required Lenders (it being understood that, pursuant to Section 2.14 or with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the extensions of Commitments and/or Loans are included on the Effective Date); provided further, that no such amendment, waiver or modification shall (1) increase the Commitment of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the Total Commitment or a mandatory repayment of Loans shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of the Commitment of any Lender shall not constitute an increase of the Commitment of such Lender), (2) without the consent of the Administrative Agent, amend, modify or waive any provision of Section 11 or any other provision of this Agreement or any other Credit Document as same relates to the rights or obligations of the Administrative Agent or (3) without the consent of the Security Agent, amend, modify or waive any provision relating to the rights or obligations of the Security Agent.

(b)If, in connection with any proposed amendment, waiver or modification of or to any of the provisions of this Agreement as contemplated by clauses (i) through (iv), inclusive, of the first proviso to Section 12.12(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 2.13 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination or (B) repay all outstanding Loans and terminate all Commitments of such non-consenting Lender in accordance with Section 4.01(b), provided that, unless the Loans which are repaid or Commitments which are terminated pursuant to preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the outstanding Loans or Commitments of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), (x) the calculation of Required Lenders shall be determined after giving effect to any such repayment or termination, (y) the Required Lenders (determined after giving effect to the proposed action) shall specifically consent thereto and (z) by the terms of such agreement the Commitment of each Lender not consenting to the amendment provided for therein shall terminate upon the effectiveness of such amendment.

(c)Notwithstanding anything to the contrary in this Section 12.12, no Lender consent is required to effect any amendment or supplement to the Intercreditor Agreement, any Pari Passu Intercreditor Agreement or any Second Lien Intercreditor Agreement (i) that is for the purpose of adding the holders of Permitted Pari Passu Refinancing Debt or Permitted Junior Priority Refinancing Debt (or a representative agent or trustee with respect thereto) as parties thereto, as expressly contemplated by the

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terms of the Intercreditor Agreement, such Pari Passu Intercreditor Agreement or such Second Lien Intercreditor Agreement, as applicable (it being understood that any such amendment or supplement may make such other changes to the applicable intercreditor agreement as, in the good faith determination of the Administrative Agent, are required to effectuate the foregoing and provided, that such other changes are not adverse, in any material respect, to the interests of the Lenders), (ii) that is expressly contemplated by the Intercreditor Agreement (or the comparable provisions, if any, of any Pari Passu Intercreditor Agreement or any Second Lien Intercreditor Agreement), or (iii) that is to amend, or amend and restate, the Intercreditor Agreement into substantially the form of the attached Restated Intercreditor Agreement concurrently with the incurrence of any Junior Lien Debt by the Borrower or any Guarantor for the purpose of adding the holders of such Indebtedness (or their representative agents) to the Intercreditor Agreement, and in the course of doing so, to make such other changes to the Intercreditor Agreement that, in the good faith determination of the Administrative Agent, are required to effectuate the foregoing provided, that such other changes are not adverse, in any material respect, to the interests of the Lenders; provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the Security Agent hereunder or under any other Credit Document without the prior written consent of the Administrative Agent or the Security Agent, as applicable.

(d)If Indebtedness is incurred pursuant to Section 9.04 hereof that is secured by a Lien on any Collateral, the Administrative Agent and/or the Security Agent is authorized to enter into any Other Intercreditor Agreement or any amendment to the Intercreditor Agreement (including amending, or amending and restating, the Intercreditor Agreement into substantially the form of the attached Restated Intercreditor Agreement, as provided in clause (c) above) or any Other Intercreditor Agreement (and the Administrative Agent and the Security Agent shall enter into such Other Intercreditor Agreement or amendment to the Intercreditor Agreement or such Other Intercreditor Agreement) if reasonably requested to do so by the Borrower in order to reflect the incurrence of such Indebtedness and the Lien priority intended to be created thereon.

(e)Notwithstanding anything to the contrary contained in clause (a) above of this Section 12.12, the Borrower, the Administrative Agent and each Additional Lender may, in accordance with the provisions of Section 2.14, enter into an Incremental Amendment, provided that after the execution and delivery by the Borrower, the Administrative Agent and each such Additional Lender of such Incremental Amendment, such Incremental Amendment may thereafter only be modified in accordance with the requirements of clause (a) above of this Section 12.12.

(f)Notwithstanding anything to the contrary in this Section 12.12, guarantees, collateral security documents and related documents in connection with this Agreement may be in a form reasonably determined by the Security Agent and may be amended and waived with the consent of the Security Agent at the request of Parent or the Borrower without the need to obtain the consent of any other Lenders if such amendment or waiver is delivered in order (i) to reflect local law or advice of local counsel, (ii) to cure ambiguities or defects or (iii) to cause such guarantee, collateral security document or other document to be consistent with this Agreement and the other Credit Documents.

(g)Further, notwithstanding anything to the contrary contained in this Section 12.12, (x) (i) Security Documents and related documents executed by the Credit Parties in connection with this Agreement may be in a form reasonably determined by the Security Agent, (ii) the Other Intercreditor Agreements entered into in connection with this Agreement may be in a form reasonably determined by the Security Agent, and (iii) such Security Documents and related documents, the Intercreditor Agreement and the Other Intercreditor Agreements may be amended, supplemented and waived with the consent of the Security Agent, the Administrative Agent and the Borrower without the need to obtain the consent of any other Person if such amendment, supplement or waiver is delivered (A) in order to comply with local law or advice of local counsel, (B) in order to cause such Security

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Document or other document to be consistent with this Agreement and the other Credit Documents or (C) in connection with the incurrence of any Indebtedness under Sections 9.04(j), 9.04(l) or 9.04(t), Incremental Loans, Incremental Equivalent Debt (and Permitted Refinancing Indebtedness in respect thereof), Credit Agreement Refinancing Indebtedness (and Permitted Refinancing Indebtedness in respect thereof), Permitted Pari Passu Refinancing Debt, Permitted Junior Priority Refinancing Debt or other Junior Lien Debt, or Refinanced Debt (and the addition of any collateral as Collateral in connection therewith) and the entry by the Administrative Agent and the Security Agent into intercreditor arrangements (including, without limitation, any amendment, amendment and restatement or supplement to the Intercreditor Agreement pursuant to Section 8.3 of the Intercreditor Agreement, or any Pari Passu Intercreditor Agreement or Second Lien Intercreditor Agreement or amendment or modification thereof, or amendment, or amendment and restatement, of the Intercreditor Agreement into substantially the form of the attached Restated Intercreditor Agreement) in connection therewith (and the Administrative Agent and Security Agent agree to enter into such agreements, amendments and modifications if reasonably requested by the Borrower in connection with the transactions described above) and (y) if, following the Effective Date, the Administrative Agent and the Borrower shall have jointly identified an obvious error or any error or omission of a typographical, technical or immaterial nature, in each case, in any provision of any Credit Document, then the Administrative Agent and the Borrower shall be permitted to amend such provision and such amendment shall become effective without any further action or consent of any other party to any Credit Document if the same is not objected to in writing by the Required Lenders within five Business Days following receipt of notice thereof.

12.13Survival.  All indemnities set forth herein including, without limitation, in Sections 2.10, 2.11, 4.04, 11.06 and 12.01 shall survive the execution, delivery and termination of this Agreement and the Notes and the making and repayment of the Obligations.

12.14Domicile of Loans.  Each Lender may transfer and carry its Loans at, to or for the account of any office, Subsidiary or Affiliate of such Lender.  Notwithstanding anything to the contrary contained herein, to the extent that a transfer of Loans pursuant to this Section 12.14 would, at the time of such transfer, result in increased costs under Section 2.10, 2.11 or 4.04 from those being charged by the respective Lender prior to such transfer, then the Borrower shall not be obligated to pay such increased costs (although the Borrower shall be obligated to pay any other increased costs of the type described above resulting from changes in law after the date of the respective transfer).

12.15Register.  The Borrower hereby designates the Administrative Agent to serve as its agent, solely for purposes of this Section 12.15, to maintain a register (the “Register”) on which it will record the names and addresses of the Lenders, and the Commitments of, and the principal amounts (and stated interest) of the Loans made by each of the Lenders pursuant to the terms hereof from time to time.  Failure to make any such recordation, or any error in such recordation, shall not affect the Borrower’s obligations in respect of such Loans.  With respect to any Lender, the transfer of the Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Register maintained by the Administrative Agent with respect to ownership of such Commitment and Loans and prior to such recordation all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor.  The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Register upon and only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment and Assumption Agreement pursuant to Section 12.04(b), an Administrative Questionnaire completed in respect of the assignee Lender (unless the assignee Lender shall already be a Lender hereunder), the appropriate IRS Forms, if applicable, the processing and recordation fee referred to in Section 12.04(b), if applicable, and the consent of the Administrative Agent and, if required, the Borrower.  Upon such acceptance and recordation, the assignee specified therein shall be treated as a Lender for all purposes of this Agreement.

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Coincident with the delivery of such an Assignment and Assumption Agreement to the Administrative Agent for acceptance and registration of assignment or transfer of all or part of a Loan, or as soon thereafter as practicable, the assigning or transferor Lender shall surrender the Note (if any) evidencing such Loan, and thereupon one or more new Notes in the same aggregate principal amount shall be issued to the assigning or transferor Lender and/or the new Lender at the request of any such Lender.  The Borrower agrees to indemnify the Administrative Agent from and against any and all losses, claims, damages and liabilities of whatsoever nature which may be imposed on, asserted against or incurred by the Administrative Agent in performing its duties under this Section 12.15 except to the extent incurred by reason of its bad faith, gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable decision).

12.16Confidentiality.  (a) Subject to the provisions of clause (b) of this Section 12.16, each of the Administrative Agent, Security Agent and each Lender agrees that it will not disclose without the prior written consent of the Borrower (other than to its partners, employees, auditors, advisors or counsel to another Lender if such Lender or such Lender’s holding or parent company in its sole discretion determines that any such party should have access to such information, provided such Persons shall be subject to the provisions of this Section 12.16 to the same extent as such Agent or such Lender) any information with respect to Parent, Holdings or any of its Subsidiaries which is now or in the future furnished pursuant to this Agreement or any other Credit Document, provided that the Administrative Agent, Security Agent or any Lender may disclose any such information (i) as has become generally available to the public other than by virtue of a breach of this Section 12.16(a) or other obligation of confidentiality owed to Parent or any of its respective Affiliates, (ii) as may be required or appropriate in any report, statement or testimony submitted to any municipal, state, Federal or other regulatory body (including any self-regulatory authority or organization) having or claiming to have jurisdiction or authority over such Lender or to the Federal Reserve Board or the Federal Deposit Insurance Corporation or similar organizations (whether in the United States or elsewhere) or their successors; provided that the Administrative Agent, the Security Agent or such Lender, as applicable, agrees that it will notify the Borrower as soon as practicable in the event of any such disclosure by such Person (other than at the request of a regulatory authority) unless such notification is prohibited by law, rule or regulation, (iii) as may be required or appropriate in respect to any summons or subpoena or in connection with any litigation; provided that the Administrative Agent, the Security Agent or such Lender, as applicable, agrees that it will notify the Borrower as soon as practicable in the event of any such disclosure by such Person (other than at the request of a regulatory authority) unless such notification is prohibited by law, rule or regulation, (iv) in order to comply with any law, order, regulation or ruling applicable to such Lender; provided that the Administrative Agent or such Lender, as applicable, agrees that it will notify the Borrower as soon as practicable in the event of any such disclosure by such Person (other than at the request of a regulatory authority) unless such notification is prohibited by law, rule or regulation, (v) to the Administrative Agent or the Security Agent, (vi) to any direct or indirect contractual counterparty in any swap, hedge or similar agreement (and/or to any such contractual counterparty’s professional advisor), so long as such contractual counterparty (or such professional advisor) agrees to be bound by the provisions of this Section 12.16 (in each case other than any Disqualified Lender), (vii) to any prospective or actual transferee, pledgee or participant in connection with any contemplated transfer, pledge or participation of any of the Notes or Commitments or any interest therein by such Lender (in each case other than any Disqualified Lender), provided that such prospective transferee, pledgee or participant agrees to be bound by the confidentiality provisions contained in this Section 12.16, (viii) to any rating agency when required by it or the CUSIP Service Bureau or any similar agency in connection with the issuance or monitoring of CUSIP numbers or other market identifiers with respect to the credit provided hereunder, (ix) in connection with the exercise of any remedies hereunder or under any other Credit Document, (x) to market data collectors, similar services providers to the lending industry, and service providers to the Administrative Agent and the Lenders in connection with the administration and management of this Agreement and the other Credit Documents.

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(b)Each of Parent, Holdings and the Borrower hereby acknowledges and agrees that each Lender may share with any of its affiliates, and such affiliates may share with such Lender, any information related to Parent or any of its Subsidiaries (including, without limitation, any non-public customer information regarding the creditworthiness of Parent and its Subsidiaries), provided such Persons shall be subject to the provisions of this Section 12.16 to the same extent as such Lender.

12.17Special Notice Regarding Pledges of Equity Interests in, and Promissory Notes Owed by, Persons Not Organized in the United States.  The parties hereto acknowledge and agree that the provisions of the various Security Documents executed and delivered by the Credit Parties require that, among other things, all promissory notes executed by, and certain capital stock and other Equity Interests in, various Persons owned by the respective Credit Party be pledged, and, in certain cases, delivered for pledge, pursuant to (and to the extent required by) the Security Documents.  The parties hereto further acknowledge and agree that each Credit Party shall only be required to take actions under the laws of the United States and any State thereof to perfect the security interests under the Security Documents.  To the extent any Security Document requires or provides for the pledge of promissory notes issued by, or capital stock or other Equity Interests in, any Foreign Subsidiary of the Borrower or any other Person organized under the laws of a jurisdiction other than the United States or any State thereof, it is acknowledged that no actions have been required or will be taken under local law of any jurisdiction outside the United States or any State thereof.  All conditions and representations contained in this Agreement and the other Credit Documents shall be deemed modified to the extent necessary to effect the foregoing and so that same are not violated by reason of the failure to take actions under local law.

12.18Patriot Act.  Each Lender subject to the USA PATRIOT Improvement and Reauthorization Act (Pub. L. 109-177 (signed into law March 9, 2009)) (the “Patriot Act”) hereby notifies Parent, Holdings and the Borrower that pursuant to the requirements of the Patriot Act, it is required to obtain, verify and record information that identifies Parent, Holdings, the Borrower and the other Credit Parties and other information that will allow such Lender to identify the Borrower and the other Credit Parties in accordance with the Patriot Act.

12.19OTHER LIENS ON COLLATERAL; TERMS OF INTERCREDITOR AGREEMENT; ETC.  (a) EACH LENDER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT LIENS SHALL BE CREATED ON THE COLLATERAL PURSUANT TO THE ABL LOAN DOCUMENTS, WHICH LIENS SHALL BE SUBJECT TO TERMS AND CONDITIONS OF THE INTERCREDITOR AGREEMENT REGARDING RELATIVE PRIORITIES AND THE EXERCISE OF RIGHTS AND REMEDIES.  PURSUANT TO THE EXPRESS TERMS OF THE INTERCREDITOR AGREEMENT, IN THE EVENT OF ANY CONFLICT BETWEEN THE TERMS OF THE INTERCREDITOR AGREEMENT AND ANY OF THE CREDIT DOCUMENTS WITH RESPECT TO THE RELATIVE PRIORITIES OF ANY OF THE LIENS AND THE EXERCISE OF ANY RIGHTS AND REMEDIES, THE PROVISIONS OF THE INTERCREDITOR AGREEMENT SHALL GOVERN AND CONTROL.

(b)EACH LENDER AUTHORIZES AND INSTRUCTS THE ADMINISTRATIVE AGENT AND THE SECURITY AGENT TO ENTER INTO THE INTERCREDITOR AGREEMENT ON BEHALF OF THE LENDERS, AND TO TAKE ALL ACTIONS (AND EXECUTE ALL DOCUMENTS) REQUIRED (OR DEEMED ADVISABLE) BY IT IN ACCORDANCE WITH THE TERMS OF THE INTERCREDITOR AGREEMENT.

(c)THE PROVISIONS OF THIS SECTION 12.19 ARE NOT INTENDED TO SUMMARIZE ALL RELEVANT PROVISIONS OF THE INTERCREDITOR AGREEMENT, THE FORMS OF WHICH ARE ATTACHED AS AN EXHIBIT TO THIS AGREEMENT.  REFERENCE MUST BE MADE TO THE INTERCREDITOR AGREEMENT ITSELF TO UNDERSTAND ALL

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TERMS AND CONDITIONS THEREOF.  EACH LENDER IS RESPONSIBLE FOR MAKING ITS OWN ANALYSIS AND REVIEW OF THE INTERCREDITOR AGREEMENT AND THE TERMS AND PROVISIONS THEREOF, AND NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS AFFILIATES MAKES ANY REPRESENTATION TO ANY LENDER AS TO THE SUFFICIENCY OR ADVISABILITY OF THE PROVISIONS CONTAINED IN THE INTERCREDITOR AGREEMENT.

12.20Interest Rate Limitation.  Notwithstanding anything to the contrary contained in any Credit Document, the interest paid or agreed to be paid under the Credit Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable law (the “Maximum Rate”).  If the Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to the Borrower.  In determining whether the interest contracted for, charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.

12.21Post-Closing Actions.  Notwithstanding anything to the contrary contained in this Agreement or the other Credit Documents, the parties hereto acknowledge and agree that Parent and its Restricted Subsidiaries shall take (and, if applicable, shall cause their respective Restricted Subsidiaries to take) the actions specified in Schedule 12.21 attached hereto within the time periods set forth in Schedule 12.21 (as such time periods may be extended by the Security Agent, without any requirement for Lender consent).  The provisions of such Schedule 12.21 shall be deemed incorporated by reference herein as fully as if set forth herein in its entirety, and the undertakings of the Parent and its Restricted Subsidiaries thereunder shall constitute covenants under, and for all purposes of, this Agreement.

All conditions precedent and representations contained in this Agreement and the other Credit Documents shall be deemed modified to the extent necessary to effect the foregoing (and to permit the taking of the actions described above within the time periods required above, rather than as elsewhere provided in the Credit Documents), provided that to the extent any representation and warranty would not be true because the foregoing actions were not taken on the Effective Date, the respective representation and warranty shall be required to be true and correct in all material respects (or in all respects, to the extent such representation or warranty is qualified as to “materiality,” “Material Adverse Effect” or similar language) at the time the respective action is taken (or was required to be taken) in accordance with the foregoing provisions of this Section 12.21.

12.22Revival and Reinstatement of Obligations.  If the incurrence or payment of the Secured Obligations by the Borrower or any Guarantor or the transfer to the Secured Creditors of any property should for any reason subsequently be asserted, or declared, to be void or voidable under any state or federal law relating to creditors’ rights, including provisions of the Bankruptcy Code relating to fraudulent conveyances, preferences, or other voidable or recoverable payments of money or transfers of property (each, a “Voidable Transfer”), and if the Secured Creditors are required to repay or restore, in whole or in part, any such Voidable Transfer, or elect to do so upon the reasonable advice of their counsel, then, as to any such Voidable Transfer, or the amount thereof that the Secured Creditors are required or elect to repay or restore, and as to all reasonable costs, expenses, and attorney’s fees of the Secured Creditors related thereto, the liability of the Borrower or such Guarantor automatically shall be revived, reinstated, and restored and shall exist as though such Voidable Transfer had never been made.

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12.23Lender Action.  Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy against any Credit Party or any other obligor under any of the Credit Documents (including the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral or any other property of any such Credit Party, unless expressly provided for herein or in any other Credit Document, without the prior written consent of the Administrative Agent (in respect of the exercise of any set off, such consent not to be unreasonably withheld).  The provisions of this Section 12.23 are for the sole benefit of the Lenders and shall not afford any right to, or constitute a defense available to, any Credit Party

12.24Hedging Creditors.  Each Hedging Creditor shall be deemed a third party beneficiary hereof and of the provisions of the other Credit Documents solely for purposes of and solely with respect to any reference in a Credit Document to the parties for whom the Security Agent is acting.  The Security Agent hereby agrees to act as agent for such Hedging Creditors and, by virtue of being a counterparty to a Secured Hedging Agreement, each Hedging Creditor shall be automatically deemed to have appointed the Security Agent as its agent; it being understood and agreed that the rights and benefits of each Hedging Creditor under the Credit Documents consist exclusively of such Hedging Creditor’s being a beneficiary of the Liens and security interests (and, if applicable, guarantees) granted to the Security Agent and the right to share in payments and collections out of the Collateral as more fully set forth herein. In connection with any such distribution of payments and collections, the Security Agent shall be entitled to assume no amounts are owing to any Hedging Creditor unless such Hedging Creditor has provided written notification to the Administrative Agent of the amount that is owing to it and such notification is received by the Administrative Agent a reasonable period of time prior to the making of such distribution.

12.25Contractual Recognition of Bail-in.  Notwithstanding anything to the contrary in any Credit Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Credit Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by: (a) the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution; and (b) the effects of any Bail-In Action in relation on any such liability, including, if applicable: (i) reduction, in full or in part, in the principal amount or outstanding amount due (including any accrued but unpaid interest) in respect of any such liability; (ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Credit Document; or (iii) the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution Authority.

[SIGNATURE PAGES FOLLOW]

127

IN WITNESS WHEREOF, the parties hereto have caused their duly authorized officers to execute and deliver this Term Loan Credit Agreement as of the date first above written.

ADVANCEPIERRE FOODS HOLDINGS, INC., as Parent
By:	/s/ Michael B. Sims
	Name: Michael B. Sims
	Title: Senior Vice President, Treasurer and Secretary
PIERRE HOLDCO, INC., as Holdings
By:	/s/ Michael B. Sims
	Name: Michael B. Sims
	Title: Senior Vice President, Treasurer and Secretary
ADVANCEPIERRE FOODS, INC., as Borrower
By:	/s/ Michael B. Sims
	Name: Michael B. Sims
	Title: Chief Financial Officer, Vice President, Treasurer and Secretary

MORGAN STANLEY SENIOR FUNDING, INC., Individually and as Administrative Agent and Security Agent
By:	/s/ Brendan MacBride
	Name: Brendan MacBride
	Title: Authorized Signatory

SCHEDULE 1.01

Commitments

Lender	Commitment
Morgan Stanley Senior Funding, Inc.	$	1,300,000,000
TOTAL:	$	1,300,000,000

SCHEDULE 7.12

Real Property

A.  Owned Real Property

Owner	Relationship to Borrower	Property	Property Address	County
AdvancePierre Foods, Inc.	Owner is Borrower	Plant, Offices and Cold Storage Warehouse	3437 East Main Street Claremont, NC 28610	Catawba
AdvancePierre Foods, Inc.	Owner is Borrower	Plant and Offices	9990 Princeton Glendale Road Cincinnati, OH 45246	Butler
AdvancePierre Foods, Inc.	Owner is Borrower	Plant	11, 12 & 15 Tucker Drive and 1625 Pardue Drive Caseyville, IL 62232	St. Clair
Chefs Pantry, LLC	Subsidiary	Plant	133 Clovervale Drive Route 135 Easley, SC 29640	Pickens
Clovervale Farms, LLC	Subsidiary	Plant	1833 Cooper Foster Park Road Amherst, OH 44001	Lorain
Advance Food Company, LLC	Subsidiary	Plant, Offices and Cold Storage Warehouse	Pine Street Plant 202-204, 206 E Pine Avenue Enid, OK 73701	Garfield
Advance Food Company, LLC	Subsidiary	Office and Storage	Knox Building (Units 1, 1B, 1M, 2 and 3) 301 West Broadway Enid, OK 73701	Garfield
Advance Food Company, LLC	Subsidiary	Plant, Offices and Cold Storage Warehouse	Philly Steak Plant 4929 E Willow Road Enid, OK 73701	Garfield

Advance Food Company, LLC	Subsidiary	Plant, Offices and Cold Storage Warehouse	54th Street Plant 201 South Raleigh Road a/k/a 201 54th Street Enid, OK 73701	Garfield
Advance Food Company, LLC	Subsidiary	Plant, Offices and Cold Storage Warehouse	Enterprise Blvd Plant 5110 Enterprise Blvd Enid, OK 73701	Garfield
Barber Foods, LLC	Subsidiary	Plant	Portland Plant 54 St. John Street Portland, Maine 04102	Cumberland

B.  Leased Real Property

Lessee	Lessor	Real Property Location
AdvancePierre Foods, Inc.	RT Landings II	9987 Carver Road, Suite 500, Blue Ash, OH
AdvancePierre Foods, Inc.	RT Landings II	9987 Carver Road, Suite 450, Blue Ash, OH
AdvancePierre Foods, Inc.	SP FISHER HALL LP	SP Fisher Hall, 3540 S. Boulevard, Edmund, OK
AdvancePierre Foods, Inc.	Limestone Properties	5507 Walsh Lane #201, Bentonville, AR
AdvancePierre Foods, Inc.	AGNL Victuals, LLC	5109 E. Willow Rd., Enid, OK
Barber Foods, LLC	Plymouth 56 Milliken, LLC	56 Milliken Street, Portland, Maine 04103

7.12 - 2

SCHEDULE 8.12

Mortgaged Properties

Owner	Property Address	County
AdvancePierre Foods, Inc.	3437 East Main Street Claremont, NC 28610	Catawba
AdvancePierre Foods, Inc.	9990 Princeton Glendale Road Cincinnati, OH 45246	Butler
AdvancePierre Foods, Inc.	11, 12 & 15 Tucker Drive and 1625 Pardue Drive Caseyville, IL 62232	St. Clair
Chefs Pantry, LLC	133 Clovervale Drive Route 135 Easley, SC 29640	Pickens
Clovervale Farms, LLC	1833 Cooper Foster Park Road Amherst, OH 44001	Lorain
Advance Food Company, LLC	Pine Street Plant 202-204, 206 E Pine Avenue Enid, OK 73701	Garfield
Advance Food Company, LLC	Knox Building (Units 1, 1B, 1M, 2 and 3) 301 West Broadway Enid, OK 73701	Garfield
Advance Food Company, LLC	Philly Steak Plant 4929 E Willow Road Enid, OK 73701	Garfield
Advance Food Company, LLC	54th Street Plant 201 South Raleigh Road a/k/a 201 54th Street Enid, OK 73701	Garfield

Advance Food Company, LLC	Enterprise Blvd Plant 5110 Enterprise Blvd Enid, OK 73701	Garfield
Barber Foods, LLC	Portland Plant 54 St. John Street Portland, Maine 04102	Cumberland

9.01 - 2

SCHEDULE 9.01

Existing Liens

1.Liens in connection with those equipment lease agreements set forth on Schedule 9.04.

2.Liens in connection with the following financing statements:

Filing Office	Debtor	Secured Party	Filing Number	Filing Date	Collateral Description
DE  — Secretary of the State	AdvancePierre Foods, Inc.	Corporation Service Company, as Representative	2014 1190123	03-26-14	Equipment Lease
		Wells Fargo Bank, N.A.	2011 2545674	07-01-11	Equipment Lease
			2013 0220484	01-16-13	Equipment Lease
			2013 0220500	01-16-13	Equipment Lease
			2013 1700849	05-03-13	Equipment Lease
			2013 1821546	05-13-13	Equipment Lease
		Crown Credit Company	2011 3110890	08-11-11	Equipment Lease
			2016 0930337	02-16-16	Continuation
			2016 2164240	04-12-16	Amendment
		NHMG Financial Services, Inc.	2015 3279089	07-29-15	Equipment Lease
		Citizens Bank of Pennsylvania	2013 3256774	08-20-13	Certain Accounts Receivable
		Xenith Bank	2016 2273777	04-18-16	Equipment Lease
		JPMorgan Chase Bank,  N.A.	2015 3260873	07-17-15	Certain Accounts Receivable
		Bank of Montreal	2015 3211223	7-24-15	Certain Accounts Receivable
		U.S. Bank Equipment Finance, A Division of U.S. Bank National Association	2016 1351319	03-07-16	Equipment Lease
		Robert Reiser & Co., Inc.	2013 2589019	07-05-13	Equipment Lease
			2013 4094604	10-18-13	Equipment Lease
			2014 0641696	02-19-14	Equipment Lease
			2015 0195495	01-15-15	Equipment Lease
			2015 1443687	04-06-15	Equipment Lease
			2015 2109196	05-18-15	Equipment Lease
			2016 1299930	03-03-16	Equipment Lease
		Raymond Lease Corporation	2015 2432481	06-08-15	Equipment Lease
		Meridian Leasing Corporation	2013 3696268	09-23-13	Equipment Lease
			2013 4335098	11-05-13	Equipment Lease
		SunTrust Bank	2015 1773810	04-24-15	Certain Accounts Receivable
		Toyota Motor Credit Corporation	2013 0613001	02-06-13	Equipment Lease
			2015 0895168	02-20-15	Equipment Lease
			2015 0895457	02-20-15	Equipment Lease
			2015 0974971	02-26-15	Equipment Lease
ME — Secretary of State	Barber Foods, LLC	NMHG Financial Services, Inc.	2090001997694-16	11-25-09	Equipment Lease

Filing Office	Debtor	Secured Party	Filing Number	Filing Date	Collateral Description
			20140724103300020-99	7-22-14	Amendment
			20140801103300069-08	7-31-14	Continuation
OK — Oklahoma County Clerk	Advance Food Company, LLC (f/k/a Advance Food Company, Inc.)	Raymond Leasing Corporation	20130506020446830	5-6-13	Equipment Lease
		Robert Reiser & Co., Inc.	20140701020672180	07-01-14	Equipment Lease
		Robert Reiser & Co., Inc.	20141107021144960	11-07-14	Equipment Lease

SCHEDULE 9.04

Existing Indebtedness

1.Indebtedness in connection with the following capital lease agreements:

Description of Agreement	Aggregate Principal Amount
Software Lease agreement dated as of September 30, 2013 between Kronos Incorporated (“Lessor”) and AdvancePierre Foods, Inc. (“Lessee”)	$	22,666
Software Lease agreement dated as of September 25, 2014 between Kronos Incorporated (“Lessor”) and AdvancePierre Foods, Inc. (“Lessee”)	$	35,597
Equipment Lease agreement data as of December 4, 2012 between Raymond Leasing Corporation (“Lessor”) and Advance Food Company, Inc. D/B/A AdvancePierre Foods, Inc. (“Lessee”)	$	59,081
Equipment Lease agreement data as of October 8, 2015 between Robert Reiser & Co., Inc. (“Lessor”) and AdvancePierre Foods, Inc. (“Lessee”)	$	171,470
Equipment Lease agreement data as of May 14, 2014 between Cisco Systems Capital Corporation (“Lessor”) and AdvancePierre Foods, Inc. (“Lessee”)	$	130,807
Equipment Lease agreement data as of September 12, 2014 between Cisco Systems Capital Corporation (“Lessor”) and AdvancePierre Foods, Inc. (“Lessee”)	$	98,458
Equipment Lease agreement data as of November 4, 2014 between Cisco Systems Capital Corporation (“Lessor”) and AdvancePierre Foods, Inc. (“Lessee”)	$	97,237
Total:	$	592,650

2.Surety Bond dated July 1, 2015, from AdvancePierre Foods, Inc. and Westchester Fire Insurance Company to The United States Department of Agriculture Food and Nutrition Service.

3.Earn Out agreement related to that certain Asset Purchase Agreement dated January 16, 2015, by and among Trover Family Business, L.L.C., Landshire, Inc., and AdvancePierre Foods, Inc. (formerly LSI Acquisition, LLC).

SCHEDULE 12.03

Notice Addresses

Credit Party	Address
AdvancePierre Foods Holdings, Inc.	9987 Carver Road, 5th Floor, Suite 500, Blue Ash, OH 45242
Pierre Holdco, Inc.	9987 Carver Road, 5th Floor, Suite 500, Blue Ash, OH 45242
AdvancePierre Foods, Inc.	9987 Carver Road, 5th Floor, Suite 500, Blue Ash, OH 45242
Chefs Pantry, LLC	9987 Carver Road, 5th Floor, Suite 500, Blue Ash, OH 45242
Clovervale Farms, LLC	9987 Carver Road, 5th Floor, Suite 500, Blue Ash, OH 45242
APF Legacy Subs, LLC	9987 Carver Road, 5th Floor, Suite 500, Blue Ash, OH 45242
Advance Food Company, LLC	9987 Carver Road, 5th Floor, Suite 500, Blue Ash, OH 45242
Barber Foods, LLC	9987 Carver Road, 5th Floor, Suite 500, Blue Ash, OH 45242

SCHEDULE 12.21

Post-Closing Actions

A.REAL PROPERTY MORTGAGES

·The applicable Credit Parties and the Security Agent shall comply with Section 8.12.

·The applicable Credit Parties and the Security Agent shall have prepared and filed UCC-3 termination statements with respect to existing fixture filings recorded in Garfield County, Oklahoma within three (3) Business Days.

B.CONTROL AGREEMENTS

Within sixty (60) days following the Effective Date (or such later date as the Administrative Agent may agree), the applicable Credit Parties shall have obtained authenticated Control Agreements, from (or shall have joined, by way of joinder, amendment or amendment and restatement, existing authenticated Control Agreements with) each bank maintaining the Deposit Accounts set forth below:

CREDIT PARTY	BANK	ACCOUNT NO.
AdvancePierre Foods, Inc.	Wells Fargo Bank, National Association	4121831002
AdvancePierre Foods, Inc.	Wells Fargo Bank, National Association	4121831010
AdvancePierre Foods, Inc.	Wells Fargo Bank, National Association	4122168370
AdvancePierre Foods, Inc.	U.S. Bank National Association	130105784461

C.INSURANCE CERTIFICATES

Within thirty (30) days following the Effective Date (or such later date as the Administrative Agent may agree), the applicable Credit Parties shall have complied with the provisions of Section 5.15(b), to the extent not delivered on the Effective Date.

EXHIBIT A-1

FORM OF NOTICE OF BORROWING

[Date]

Morgan Stanley Senior Funding, Inc., as

Administrative Agent (the “Administrative

Agent”) for the Lenders party to the First-Lien

Credit Agreement referred to below

1585 Broadway

New York, New York 10036

Attention: Agency team

Email: AGENCY.BORROWERS@morganstanley.com

Ladies and Gentlemen:

The undersigned, AdvancePierre Foods, Inc., (the “Borrower”), refers to the Term Loan Credit Agreement, dated as of June 2, 2016 (as amended, restated amended and restated, amended and extended, supplemented, modified, restructured, replaced or refinanced from time to time, the “Term Loan Credit Agreement”; unless otherwise defined herein, capitalized terms used in this Notice shall have the meanings set forth in the Term Loan Credit Agreement), among AdvancePierre Foods Holdings, Inc., Pierre Holdco, Inc., the Borrower, the lenders party thereto from time to time (each, a “Lender” and collectively, the “Lenders”), and you, as Administrative Agent for such Lenders, and hereby gives you, subject to Section 2.10, irrevocable notice, pursuant to Section 2.03(a) of the Term Loan Credit Agreement, that the undersigned hereby requests a Borrowing under the Term Loan Credit Agreement, and in that connection sets forth below the information relating to such Borrowing (the “Proposed Borrowing”) as required by Section 2.03(a) of the Term Loan Credit Agreement:

(i)The Business Day of the Proposed Borrowing is                ,      .(1)

(ii)The aggregate principal amount of the Proposed Borrowing is $          .(2)

(iii)The Loans to be made pursuant to the Proposed Borrowing shall be initially maintained as [Base Rate Loans] [LIBOR Loans].

(iv)The initial Interest Period for the Proposed Borrowing is [   ](3) [one month] [two months] [three months] [six months][twelve months](4).

(1)Notice of Borrowing must be delivered at least one Business Day prior to the Proposed Borrowing in the case of Base Rate Loans and at least one Business Day prior to the Proposed Borrowing in the case of LIBOR Loans. Notices must be given before 1:00 P.M. (New York City time) on such day.

(2)The Minimum Borrowing Amount is $5,000,000.

(3)If agreed to by each Lender with Loans under the relevant Class, such other period not to exceed one month.

(4)Only if agreed to by all Lenders with Loans under the relevant Class.

1

The undersigned hereby certifies that the following statements are true on the date hereof, and will be true on the date of the Proposed Borrowing after giving effect thereto:

(A)the representations and warranties contained in the Term Loan Credit Agreement and in the other Credit Documents are and will be true and correct in all material respects (or, with respect to any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language, in all respects on such date), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects (or all respects, as applicable) as of such earlier date; and

(B)no Default or Event of Default has occurred and is continuing.

Very truly yours,
ADVANCEPIERRE FOODS, INC.
By:
	Name:
	Title:

2

EXHIBIT A-2

FORM OF NOTICE OF CONVERSION/CONTINUATION

[Date]

Morgan Stanley Senior Funding, Inc., as

Administrative Agent (the “Administrative

Agent”) for the Lenders party to the First-Lien

Credit Agreement referred to below

1585 Broadway

New York, New York 10036

Attention: Agency team

Email: AGENCY.BORROWERS@morganstanley.com

Ladies and Gentlemen:

The undersigned, AdvancePierre Foods, Inc., (the “Borrower”), refers to the Term Loan Credit Agreement, dated as of June 2, 2016 (as amended, restated amended and restated, amended and extended, supplemented, modified, restructured, replaced or refinanced from time to time, the “Term Loan Credit Agreement”; unless otherwise defined herein, capitalized terms used in this Notice shall have the meanings set forth in the Term Loan Credit Agreement), among AdvancePierre Foods Holdings, Inc., Pierre Holdco, Inc., the Borrower, the lenders party thereto from time to time (each, a “Lender” and collectively, the “Lenders”), and you, as Administrative Agent for such Lenders, and hereby gives you notice pursuant to Section [2.06] of the Term Loan Credit Agreement, that the undersigned hereby requests to [convert] [continue] the Borrowing of Loans referred to below, and in that connection sets forth below the information relating to such [conversion] [continuation] (the “Proposed [Conversion] [Continuation]”) as required by Section [2.06][2.09] of the Term Loan Credit Agreement:

(i)The amount of the Proposed [Conversion] [Continuation] is $         [  ]
(the “Outstanding Borrowing”) [; such amount is currently maintained as a Borrowing of [Base Rate Loans] [LIBOR Loans with an Interest Period ending on    ,     ].

(ii)The Business Day of the Proposed [Conversion] [Continuation] is ,     .(1)

(iii)The Outstanding Borrowing shall be [continued as a Borrowing of LIBOR Loans with an Interest Period of     months] [converted into a Borrowing of [Base Rate Loans] [LIBOR Loans] with an Interest Period of     months].(2)

(1)Notice must be delivered (x) In the case of a conversion into, or a continuation of, LIBOR Loans, at least three Business Days prior to the date of the Proposed Conversion or Proposed Continuation or (y) in the case of a conversion into Base Rate Loans, at least one Business Day prior to the date of the Proposed Conversion. Notices must be given before 1:00 P.M. (New York City time) on such day.

(2)In the event that either (x) only a portion of the Outstanding Borrowing is to be so converted or continued or (y) the Outstanding Borrowing is to be divided into separate Borrowings with different Interest Periods, the Borrower should make appropriate modifications to this clause to reflect same.

1

[The undersigned hereby certifies that no Event of Default has occurred and will be continuing on the date of the Proposed [Conversion] [Continuation] or will have occurred and be continuing on the date of the Proposed [Conversion] [Continuation]].(3)

Very truly yours,
ADVANCEPIERRE FOODS, INC.
By:
	Name:
	Title:

(3)In the case of a Proposed Conversion or Continuation, insert this sentence only in the event that the conversion is from a Base Rate Loan to a LIBOR Loan or in the case of a continuation of a LIBOR Loan; unless the Administrative Agent has or the Required Lenders have permitted otherwise.

2

EXHIBIT B

FORM OF NOTE

$	New York, New York
	, 20

FOR VALUE RECEIVED, ADVANCEPIERRE FOODS, INC., a Delaware corporation (the “Borrower”), hereby promises to pay to [] or its registered assigns (the “Lender”), in lawful money of the United States of America in immediately available funds, at the Payment Office (as defined in the Term Loan Credit Agreement referred to below) initially located at 1585 Broadway, New York, New York 10036 on the Maturity Date (as defined in the Term Loan Credit Agreement), the principal sum ofDOLLARS ($) or, if less, the unpaid principal amount of all Loans (as defined in the Term Loan Credit Agreement) made by the Lender pursuant to the Term Loan Credit Agreement, payable at such times and in such amounts as are specified in the Term Loan Credit Agreement.

The Borrower also promises to pay interest on the unpaid principal amount of each Loan made by the Lender in like money at said office from the date hereof until paid at the rates and at the times provided in Section 2.08 of the Term Loan Credit Agreement.

This Note is one of the Notes referred to in the Term Loan Credit Agreement, dated as of June 2, 2016, among AdvancePierre Foods Holdings, Inc., Pierre Holdco, Inc., the Borrower, the lenders party thereto from time to time (including the Lender), and Morgan Stanley Senior Funding, Inc., as Administrative Agent (as amended, restated amended and restated, amended and extended, supplemented, modified, restructured, replaced or refinanced from time to time, the “Term Loan Credit Agreement”) and is entitled to the benefits thereof and of the other Credit Documents (as defined in the Term Loan Credit Agreement). This Note is secured by the Security Documents (as defined in the Term Loan Credit Agreement) and is entitled to the benefits of the Guaranty (as defined in the Term Loan Credit Agreement). As provided in the Term Loan Credit Agreement, this Note is subject to voluntary prepayment and mandatory repayment prior to the Initial Maturity Date (as such date may be extended pursuant to and in accordance with the First-Lien Agreement), in whole or in part, and Loans of a respective Class may be converted from one Type (as defined in the Term Loan Credit Agreement) into another Type to the extent provided in the Term Loan Credit Agreement.

In case an Event of Default (as defined in the Term Loan Credit Agreement) shall occur and be continuing, the principal of and accrued interest on this Note may be declared to be due and payable in the manner and with the effect provided in the Term Loan Credit Agreement.

The Borrower hereby waives presentment, demand, protest or notice of any kind in connection with this Note.

The assignment of this Note and any right with respect thereto is subject to the provisions of the Term Loan Credit Agreement including the provisions governing the Register and Participant Register.

1

THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK.

ADVANCEPIERRE FOODS, INC.
By:
	Name:
	Title:

2

EXHIBIT C-1

[FORM OF]

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

Reference is hereby made to the Term Loan Credit Agreement dated as of June 2, 2016 (as amended, restated amended and restated, amended and extended, supplemented, modified, restructured, replaced or refinanced from time to time, the “Term Loan Credit Agreement”), by and among AdvancePierre Foods Holdings, Inc. (“Parent”), a Delaware corporation, Pierre Holdco, Inc. (“Holdings”), a Delaware corporation, AdvancePierre Foods, Inc., a Delaware corporation (the “Borrower”), the Lenders party thereto from time to time and Morgan Stanley Senior Funding, Inc. (acting through such Affiliates and/or branches as it deems appropriate, “MSSF”), as Administrative Agent.

Pursuant to the provisions of Section 4.04(f)(ii)(B)(iii) of the Term Loan Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any Notes evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a “ten percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code and (iv) it is not a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code.

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

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

[NAME OF LENDER]
By:
	Name:
	Title:
Date:	, 20[  ]

1

EXHIBIT C-2

[FORM OF]

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

Reference is hereby made to the Term Loan Credit Agreement dated as of June 2, 2016 (as amended, restated amended and restated, amended and extended, supplemented, modified, restructured, replaced or refinanced from time to time, the “Term Loan Credit Agreement”), by and among AdvancePierre Foods Holdings, Inc. (“Parent”), a Delaware corporation, Pierre Holdco, Inc. (“Holdings”), a Delaware corporation, AdvancePierre Foods, Inc., a Delaware corporation (the “Borrower”), the Lenders party thereto from time to time and Morgan Stanley Senior Funding, Inc. (acting through such Affiliates and/or branches as it deems appropriate, “MSSF”), as Administrative Agent.

Pursuant to the provisions of Section 4.04(f)(ii)(B)(iv) of the Term Loan Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a “ten percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, and (iv) it is not a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code.

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

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

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

2

EXHIBIT C-3

[FORM OF]

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

Reference is hereby made to the Term Loan Credit Agreement dated as of June 2, 2016 (as amended, restated amended and restated, amended and extended, supplemented, modified, restructured, replaced or refinanced from time to time, the “Term Loan Credit Agreement”), by and among AdvancePierre Foods Holdings, Inc. (“Parent”), a Delaware corporation, Pierre Holdco, Inc. (“Holdings”), a Delaware corporation, AdvancePierre Foods, Inc., a Delaware corporation (the “Borrower”), the Lenders party thereto from time to time and Morgan Stanley Senior Funding, Inc. (acting through such Affiliates and/or branches as it deems appropriate, “MSSF”), as Administrative Agent.

Pursuant to the provisions of Section 4.04(f)(ii)(B)(iv) of the Term Loan Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such participation, (iii) with respect such participation, neither the undersigned nor any of its direct or indirect partners/members is a “bank” extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a “ten percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code.

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

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

3

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

4

EXHIBIT C-4

[FORM OF]

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

Reference is hereby made to the Term Loan Credit Agreement dated as of June 2, 2016 (as amended, restated amended and restated, amended and extended, supplemented, modified, restructured, replaced or refinanced from time to time, the “Term Loan Credit Agreement”), by and among AdvancePierre Foods Holdings, Inc. (“Parent”), a Delaware corporation, Pierre Holdco, Inc. (“Holdings”), a Delaware corporation, AdvancePierre Foods, Inc., a Delaware corporation (the “Borrower”), the Lenders party thereto from time to time and Morgan Stanley Senior Funding, Inc. (acting through such Affiliates and/or branches as it deems appropriate, “MSSF”), as Administrative Agent.

Pursuant to the provisions of Section 4.04(f)(ii)(B)(iv) of the Term Loan Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any Notes evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such Loan(s) (as well as any Notes(s) evidencing such Loan(s)), (iii) with respect to the extension of credit pursuant to this Term Loan Credit Agreement or any other Credit Document, neither the undersigned nor any of its direct or indirect partners/members is a “bank” extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a “ten percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a “controlled foreign corporation” as described in Section 881(c)(3)(C) of the Code.

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

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

5

[NAME OF LENDER]
By:
	Name:
	Title:
Date:	, 20[ ]

6

EXHIBIT D

FORM OF OFFICER’S CERTIFICATE

I, the undersigned, [Chairman/Chief Executive Officer/Chief Financial Officer/President/Vice-President] of [Name of Credit Party], a [corporation] [limited partnership] [limited liability company] organized and existing under the laws of the State of [       ] (the “Company”), do hereby certify, solely in my capacity as an officer of the Company and not in my individual capacity, on behalf of the Company, that:

1.             This Certificate is furnished pursuant to Sections 5.02 and 5.04 the Term Loan Credit Agreement, dated as of June 2, 2016, among [the Company,][AdvancePierre Foods Holdings, Inc.,] [Pierre Holdco, Inc.,] [AdvancePierre Foods, Inc.,] the lenders from time to time party thereto, and Morgan Stanley Senior Funding, Inc., as Administrative Agent (the “Term Loan Credit Agreement”). Unless otherwise defined herein, capitalized terms used in this Certificate shall have the meanings set forth in the Term Loan Credit Agreement.

2.             Attached hereto as Exhibit A is a list of the duly elected, qualified, and acting officers of the Company, each of whom is authorized to execute and deliver on behalf of the Company the Credit Documents and the other documents to be delivered thereunder, holding the respective offices in Exhibit A set forth opposite their names, and the signatures on Exhibit A set forth opposite their names are their genuine signatures.

3.             Attached hereto as Exhibit B is a true and correct copy of the [Certificate of Incorporation of the Company] [Certificate of Partnership of the Company] [Certificate of Formation of the Company], certified by the Secretary of State of the State of       , together with all amendments thereto adopted through the date hereof.

4.             Attached hereto as Exhibit C is a [true and correct copy of the By-Laws of the Company which were duly adopted and are in full force and effect on the date hereof] [true and correct copy of the [Partnership Agreement of the Company] [Limited Liability Company Agreement of the Company] which was duly adopted and is in full force and effect on the date hereof], together with all amendments thereto adopted through the date hereof.

5.             Attached hereto as Exhibit D is a true and correct copy of resolutions which were duly adopted on   ,      [by unanimous written consent of the [Board of Directors][Management Committee] of the Company] [by a meeting of the Board of Directors of the Company at which a quorum was present and acting throughout], and said resolutions have not been rescinded, amended or modified since their adoption and are in full force and effect as of the date hereof.

[6.           On the date hereof, all of the conditions set forth in Section 6.01 of the Term Loan Credit Agreement have been (or will be concurrently with Borrowings made on the date hereof) satisfied.

7.             On the date hereof, and after giving effect to the Borrowings made on the date hereof, the representations and warranties contained in the Term Loan Credit Agreement and in the other Credit Documents are true and correct in all material respects (or, with respect to any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language, in all respects) with the same effect as though such representations and warranties had been made on the date hereof, unless

1

stated to relate to a specific earlier date, in which case such representations and warranties were true and correct in all material respects (or all respects, as applicable) as of such earlier date.

8.             On the date hereof, and after giving effect to the Borrowings made on the date hereof, no Default or Event of Default has occurred and is continuing.](1)

(1)Such clauses need only be included in the Officer’s Certificate delivered on behalf of AdvancePierre Foods, Inc.

2

IN WITNESS WHEREOF, I have hereunto set my hand as of the date first written above.

By:
	Name:
	Title:

I, the undersigned, [           ], do hereby certify, solely in my capacity as an officer of the Company and not in my individual capacity, on behalf of the Company, that [         ] is the duly elected and qualified [              ] of the Company and the signature above is [his][her] genuine signature.

IN WITNESS WHEREOF, I have hereunto set my hand as of the date first written above.

By:
	Name:
	Title:

3

Exhibit A

Name(1) Office Signature

(1)Include name, office and signature of each officer who will sign any Credit Document on behalf of the Company, including the officer who will sign the certification at the end of this Certificate or related documentation.

4

Exhibit B

[Certificate of Incorporation] [Certificate of Partnership]
[Certificate of Organization]

5

Exhibit C

[Bylaws] [Partnership Agreement] [Limited Liability Company Agreement]

6

Exhibit D

Resolutions

7

EXHIBIT E

FORM OF

GENERAL CONTINUING GUARANTY

[See attached.]

GENERAL CONTINUING GUARANTY

This GENERAL CONTINUING GUARANTY (this “Guaranty”), dated as of June 2, 2016, is executed and delivered by the Persons listed on the signature pages hereof and any additional entities that hereafter become parties hereto (collectively, jointly and severally, the “Guarantors” and each, a “Guarantor”), in favor of MORGAN STANLEY SENIOR FUNDING, INC., as the Administrative Agent for the Lender Creditors (in such capacity, together with its successors and assigns, if any, in such capacity, the “Administrative Agent”), in light of the following:

WHEREAS, AdvancePierre Foods Holdings, Inc., a Delaware corporation (“Parent”), Pierre Holdco, Inc., a Delaware corporation (“Holdings”), AdvancePierre Foods, Inc., a Delaware corporation (“Borrower”), the Administrative Agent, the Security Agent, and the lenders from time to time party thereto (the “Lenders”, and together with the Security Agent and the Administrative Agent, the “Lender Creditors”) are, contemporaneously herewith, entering into that certain Term Loan Credit Agreement dated as of even date herewith (as amended, restated, amended and restated, supplemented, modified, renewed or extended from time to time, the “Credit Agreement”);

WHEREAS, the Guarantors include Parent, Holdings and certain Subsidiaries of Borrower, which Persons will substantially benefit directly and indirectly by virtue of the financial accommodations extended to Borrower by the Lender Creditors and Hedging Creditors; and

WHEREAS, in order to induce the Lender Creditors to enter into the Credit Agreement and the other Credit Documents and to extend the loans and provide other financial accommodations to Borrower pursuant to the Credit Agreement, and in consideration thereof, and in consideration of any loans or other financial accommodations now, heretofore or hereafter extended by the Lender Creditors to Borrower pursuant to the Credit Documents, each Guarantor has agreed, jointly and severally with the other Guarantors to guaranty the Guaranteed Obligations.

WHEREAS, in order to induce the Hedging Creditors to enter into the Secured Hedging Agreements pursuant to the Credit Agreement, and in consideration thereof, and in consideration of any other financial accommodations now, heretofore or hereafter extended by the Hedging Creditors to Borrower pursuant to the Credit Documents, each Guarantor has agreed, jointly and severally with the other Guarantors to guaranty the Guaranteed Obligations.

NOW, THEREFORE, in consideration of the foregoing, each of the Guarantors hereby, jointly and severally, agrees as follows:

1.     Definitions and Construction.

(a)   Definitions.  Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed to them in the Credit Agreement.  The following terms, as used in this Guaranty, shall have the following meanings:

“Administrative Agent” has the meaning set forth in the introductory paragraph to this Guaranty.

“Borrower” has the meaning set forth in the recitals to this Guaranty.

“CEA” shall mean the Commodity Exchange Act (7 U.S.C.§1 et seq.), as amended from time to time, and any successor statute.

“Credit Agreement” has the meaning set forth in the recitals to this Guaranty.

“Eligible Contract Participant” shall mean an “eligible contract participant” as defined in the CEA and regulations promulgated thereunder.

“Eligibility Date” shall mean with respect to each Credit Party and each Swap, the date on which this Guaranty or any other Credit Document becomes effective with respect to such Swap (for the avoidance of doubt, the Eligibility Date shall be the effective date of such Swap if this Guaranty or any other Credit Document is then in effect with respect to such Credit Party, and otherwise it shall be the effective date of this Guaranty and/or such other Credit Document(s) to which such Credit Party is a party).

“Fraudulent Transfer Laws” has the meaning set forth in Section 2 of this Guaranty.

“Guaranteed Obligations” shall mean all (x) amounts owing to the Administrative Agent, the Security Agent or any Lender pursuant to the terms of the Credit Agreement or any other Credit Document and (y) obligations of any Credit Party arising under any Secured Hedging Agreement, including, in each of clauses (x) and (y), without limitation, all amounts in respect of any principal, interest (including any interest accruing subsequent to the filing of a petition in bankruptcy, reorganization or similar proceeding at the rate provided for in the Credit Agreement, whether or not such interest is an allowed claim under any such proceeding or under applicable state, federal or foreign law), penalties, fees, expenses, indemnifications, reimbursements, damages and other liabilities, and guarantees of the foregoing amounts.

“Guarantor” and “Guarantors” have the respective meanings set forth in the introductory paragraph to this Guaranty.

“Guaranty” has the meaning set forth in the introductory paragraph to this Guaranty.

“Hedging Creditors” has the meaning set forth in the Credit Agreement.

“Lender Creditors” has the meaning set forth in the recitals to this Guaranty.

“Lenders” has the meaning set forth in the recitals to this Guaranty.

“Non-Qualifying Party” shall mean any Credit Party that fails for any reason to qualify as an Eligible Contract Participant on the Eligibility Date of the applicable Swap.

“Qualified ECP Credit Party” shall mean each Credit Party that on the Eligibility Date is (a) a corporation, partnership, proprietorship, organization, trust, or other entity (other than a “commodity pool” as defined in Section 1a(10) of the CEA and CFTC regulations thereunder) that has total assets exceeding $10,000,000, or (b) an Eligible Contract Participant that can cause another person to qualify as an Eligible Contract Participant on the Eligibility Date under Section 1a(18)(A)(v)(II) of the CEA by entering into or otherwise providing a “letter of credit or keepwell, support, or other agreement” for purposes of Section 1a(18)(A)(v)(II) of the CEA.

“Record” shall mean the information that is inscribed on a tangible medium or which is stored in an electronic or other medium and is retrievable in perceivable form.

“Security Agent” has the meaning set forth in the Credit Agreement.

“Swap” shall mean any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the CEA.

“Voidable Transfer” has the meaning set forth in Section 10 of this Guaranty.

(b)           Construction.  Unless the context of this Guaranty clearly requires otherwise, references to the plural include the singular, references to the singular include the plural, the part includes the whole, the terms “includes” and “including” are not limiting, and the term “or” has, except where otherwise indicated, the inclusive meaning represented by the phrase “and/or.”  The words “hereof,” “herein,” “hereby,” “hereunder,” and other similar terms in this Guaranty refer to this Guaranty as a whole and not to any particular provision of this Guaranty.  Section, subsection, clause, schedule, and exhibit references herein are to this Guaranty unless otherwise specified.  Any reference in this Guaranty to any agreement, instrument, or document shall include all alterations, amendments, changes, extensions, modifications, renewals, replacements, substitutions, joinders, and supplements, thereto and thereof, as applicable (subject to any restrictions on such alterations, amendments, changes, extensions, modifications, renewals, replacements, substitutions, joinders, and supplements set forth herein).  Neither this Guaranty nor any uncertainty or ambiguity herein shall be construed or resolved against the Lender Creditors, the Hedging Creditors, or Borrower, whether under any rule of construction or otherwise.  On the contrary, this Guaranty has been reviewed by all parties and shall be construed and interpreted according to the ordinary meaning of the words used so as to accomplish fairly the purposes and intentions of each Guarantor and the Administrative Agent.  Any reference herein to the satisfaction, repayment or payment in full of the Guaranteed Obligations shall mean the indefeasible payment in cash in full of all Guaranteed Obligations other than contingent indemnification and expense reimbursement Guaranteed Obligations.  Any reference herein to any Person shall be construed to include such Person’s successors and assigns.  Any requirement of a writing contained herein shall be satisfied by the transmission of a Record and any Record transmitted shall constitute a representation and warranty as to the accuracy and completeness of the information contained therein.  The captions and headings are for convenience of reference only and shall not affect the construction of this Guaranty.

2.             Guaranteed Obligations.  (a) Each Guarantor hereby irrevocably and unconditionally, jointly and severally, guaranties to the Administrative Agent, for the benefit of the Lender Creditors and the Hedging Creditors, as and for its own debt as primary obligor and not merely as a surety, until the final and indefeasible payment in full of the Guaranteed Obligations has been made in accordance with the terms of the Credit Agreement and the applicable Secured Hedging Agreements, (x) the due and punctual payment of the Guaranteed Obligations, when and as the same shall become due and payable, whether at maturity, pursuant to a mandatory prepayment requirement, by acceleration, declaration, demand, or otherwise; it being the intent of each Guarantor that the guaranty set forth herein shall be a guaranty of payment and not a guaranty of collection, and (y) the punctual and faithful performance, keeping, observance, and fulfillment by Borrower of all of the agreements, conditions, covenants, and obligations of Borrower contained in the Credit Agreement and under each of the other Credit Documents and each of the Secured Hedging Agreements.

(b) Anything contained in this Guaranty to the contrary notwithstanding, the obligations of each Guarantor under this Guaranty and the other Credit Documents shall be limited to a maximum aggregate amount equal to the largest amount that would not render its obligations hereunder subject to avoidance as a fraudulent transfer or conveyance under Section 548 of Title 11 of the United States Code or any applicable provisions of comparable state law (collectively, the “Fraudulent Transfer Laws”), in each case after giving effect to all other liabilities of such Guarantor, contingent or otherwise, that are relevant under the Fraudulent Transfer Laws (specifically excluding, however, any liabilities of such Guarantor (x)

in respect of intercompany indebtedness to Borrower or other affiliates of Borrower to the extent that such indebtedness would be discharged in an amount equal to the amount paid by such Guarantor hereunder and (y) under any guaranty of Subordinated Indebtedness which guaranty contains a limitation as to maximum amount similar to that set forth in this Section 2(b), pursuant to which the liability of such Guarantor hereunder is included in the liabilities taken into account in determining such maximum amount) and after giving effect as assets to the value (as determined under the applicable provisions of the Fraudulent Transfer Laws) of any rights to subrogation, reimbursement, indemnification or contribution of such Guarantor pursuant to applicable law or pursuant to the terms of any agreement.

3.             Continuing Guaranty.  This Guaranty includes Guaranteed Obligations arising under successive transactions continuing, compromising, extending, increasing, modifying, releasing or renewing the Guaranteed Obligations, changing the interest rate, payment terms, or other terms and conditions thereof, or creating new or additional Guaranteed Obligations after prior Guaranteed Obligations have been satisfied in whole or in part.  To the maximum extent permitted by law, each Guarantor hereby waives any right to revoke this Guaranty as to future Guaranteed Obligations.  If such a revocation is effective notwithstanding the foregoing waiver, each Guarantor acknowledges and agrees that (a) no such revocation shall be effective until written notice thereof has been received by the Administrative Agent, (b) no such revocation shall apply to any Guaranteed Obligations in existence on the date of receipt by the Administrative Agent of such written notice (including any subsequent continuation, extension, or renewal thereof, or change in the interest rate, payment terms, or other terms and conditions thereof), (c) no such revocation shall apply to any Guaranteed Obligations made or created after such date to the extent made or created pursuant to a legally binding commitment of the Lender Creditors in existence on the date of such revocation, (d) no payment by any Guarantor, Borrower, or from any other source, prior to the date of the Administrative Agent’s receipt of written notice of such revocation shall reduce the maximum obligation of such Guarantor hereunder, and (e) any payment by Borrower or from any source other than the Guarantors subsequent to the date of such revocation shall first be applied to that portion of the Guaranteed Obligations as to which the revocation is effective and which are not, therefore, guarantied hereunder, and to the extent so applied shall not reduce the maximum obligation of the Guarantors hereunder.

4.             Performance Under this Guaranty.  In the event that Borrower fails to make any payment of any Guaranteed Obligations, on or prior to the due date thereof, or if Borrower shall fail to perform, keep, observe, or fulfill any other obligation referred to in Section 2 in the manner provided in the Credit Agreement or any other Credit Document or any Secured Hedging Agreement, each of the Guarantors immediately shall cause, as applicable, such payment in respect of the Guaranteed Obligations to be made or such obligation to be performed, kept, observed, or fulfilled.

5.             Primary Obligations.  This Guaranty is a primary and original obligation of each Guarantor, is not merely the creation of a surety relationship, and is an absolute, unconditional, and continuing guaranty of payment and performance which shall remain in full force and effect without respect to future changes in conditions.  Each Guarantor hereby agrees that it is, directly, jointly and severally with each other Guarantor and any other guarantor of the Guaranteed Obligations, liable to the Administrative Agent, for the benefit of the Lender Creditors and the Hedging Creditors, that the obligations of each Guarantor hereunder are independent of the obligations of Borrower, each other Guarantor or any other guarantor, and that a separate action may be brought against each Guarantor, whether such action is brought against Borrower, each other Guarantor or any other guarantor or whether Borrower or any other guarantor is joined in such action.  Each Guarantor hereby agrees that its liability hereunder shall be immediate and shall not be contingent upon the exercise or enforcement by any member of the Lender Creditors or any Hedging Creditor of whatever remedies they may have against Borrower, any other Guarantor or any other guarantor, or the enforcement of any Lien or realization upon any security by any member of the Lender Creditors or any Hedging Creditor.  Each Guarantor hereby agrees that any release

which may be given by the Administrative Agent to Borrower, any other Guarantor or any other guarantor, or with respect to any property or asset subject to a Lien, shall not release such Guarantor.  Each Guarantor consents and agrees that neither any member of the Lender Creditors nor any Hedging Creditor shall be under any obligation to marshal any property or assets of Borrower, any other Guarantor or any other guarantor in favor of such Guarantor, or against or in payment of any or all of the Guaranteed Obligations.

6.     Waivers.

(a)           To the fullest extent permitted by applicable law, each Guarantor hereby waives: (i) notice of acceptance hereof; (ii) notice of any loans, extensions of credit or other financial accommodations made or extended under the Credit Agreement and the Secured Hedging Agreements, or the creation or existence or extension, increase or modification of any Guaranteed Obligations; (iii) notice of the amount of the Guaranteed Obligations, subject, however, to such Guarantor’s right to make inquiry of the Administrative Agent to ascertain the amount of the Guaranteed Obligations at any reasonable time; (iv) notice of any adverse change in the financial condition of Borrower or of any other fact that might increase such Guarantor’s risk hereunder; (v) notice of presentment for payment, demand, protest, and notice thereof as to any instrument among the Credit Documents or the Secured Hedging Agreements; (vi) notice of any Default or Event of Default under any of the Credit Documents or the Secured Hedging Agreements; and (vii) all other notices (except if such notice is specifically required to be given to the Guarantors under this Guaranty or any other Credit Documents or the Secured Hedging Agreements to which such Guarantor is a party) and demands to which any Guarantor might otherwise be entitled.

(b)           To the fullest extent permitted by applicable law, each Guarantor hereby waives the right by statute or otherwise to require any member of the Lender Creditors or any Hedging Creditor, to institute suit against Borrower, any other Guarantor or any other guarantor or to exhaust any rights and remedies which any member of the Lender Creditors or any Hedging Creditor, has or may have against Borrower, any other Guarantor or any other guarantor.  In this regard, each Guarantor agrees that it is bound to the payment of each and all Guaranteed Obligations, whether now existing or hereafter arising, as fully as if the Guaranteed Obligations were directly owing to the Administrative Agent, the Lender Creditors, or the Hedging Creditors, as applicable, by such Guarantor.  Each Guarantor further waives any defense arising by reason of any disability or other defense (other than the defense that the Guaranteed Obligations shall have been fully and finally performed and indefeasibly paid in cash in full, to the extent of any such payment) of Borrower or by reason of the cessation from any cause whatsoever of the liability of Borrower in respect thereof.

(c)           To the fullest extent permitted by applicable law, each Guarantor hereby waives: (i) any right to assert against any member of the Lender Creditors or any Hedging Creditor, any (A) defense (legal or equitable) other than payment in cash in full, (B) set-off, (C) counterclaim, or (D) claim which such Guarantor may now or at any time hereafter have against Borrower or any other party liable to any member of the Lender Creditors or any Hedging Creditor; (ii) any defense, set-off, counterclaim, or claim, of any kind or nature, arising directly or indirectly from the present or future lack of perfection, sufficiency, validity, or enforceability of the Guaranteed Obligations or any security therefor; (iii) any right or defense arising by reason of any claim or defense based upon an election of remedies by any member of the Lender Creditors or any Hedging Creditor including any defense based upon an impairment or elimination of such Guarantor’s rights of subrogation, reimbursement, contribution, or indemnity of such Guarantor against Borrower or other guarantors or sureties; and (iv) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement thereof, and any act which shall defer or delay the operation of any statute of limitations applicable to the Guaranteed

Obligations shall similarly operate to defer or delay the operation of such statute of limitations applicable to such Guarantor’s liability hereunder.

(d)           Until the Guaranteed Obligations have been paid in cash in full, each Guarantor hereby (i)  postpones and agrees not to exercise any right of subrogation such Guarantor has or may have as against Borrower or any other Credit Party with respect to the Guaranteed Obligations, (ii) postpones and agrees not to exercise any right to proceed against Borrower or any other Person now or hereafter liable on account of the Guaranteed Obligations for contribution, indemnity, reimbursement, or any other similar rights (irrespective of whether direct or indirect, liquidated or contingent), and (iii) postpones and agrees not to exercise any right it may have to proceed or to seek recourse against or with respect to any property or asset of Borrower or any other Person now or hereafter liable on account of the Obligations.  Notwithstanding anything to the contrary contained in this Guaranty, no Guarantor shall exercise any rights of subrogation, contribution, indemnity, reimbursement or other similar rights against, nor shall proceed or seek recourse against or with respect to any property or asset of, Borrower, any other Guarantor or any other guarantor (including after payment in cash in full of the Guaranteed Obligations), if all or any portion of the Guaranteed Obligations have been satisfied in connection with an exercise of remedies in respect of the Stock of Borrower, any other Guarantor or any other guarantor whether pursuant to the Security Agreement or otherwise.

(e)           Subject to the terms of the Intercreditor Agreement and, after the execution thereof, any Junior Lien Intercreditor Agreement, any Pari Passu Intercreditor Agreement or any Other Intercreditor Agreement, if any of the Guaranteed Obligations or the obligations of any Guarantor under this Guaranty at any time are secured by a mortgage or deed of trust upon real property any member of the Lender Creditors or any Hedging Creditor may elect, in its sole discretion, upon a default with respect to the Guaranteed Obligations or the obligations of any Guarantor under this Guaranty, to foreclose such mortgage or deed of trust judicially or nonjudicially in any manner permitted by law in accordance with the Credit Documents or any Secured Hedging Agreements, before or after enforcing this Guaranty, without diminishing or affecting the liability of such Guarantor hereunder.  Each Guarantor understands that (i) by virtue of the operation of antideficiency law applicable to nonjudicial foreclosures, an election by any member of the Lender Creditors or any Hedging Creditor to nonjudicially foreclose on such a mortgage or deed of trust may have the effect of impairing or destroying rights of subrogation, reimbursement, contribution, or indemnity of such Guarantor against any Credit Party or other guarantors or sureties, and (ii) absent the waiver given by such Guarantor herein, such an election would estop any member of the Lender Creditors and the Hedging Creditors from enforcing this Guaranty against such Guarantor.  Understanding the foregoing, and understanding that each Guarantor is hereby relinquishing a defense to the enforceability of this Guaranty, each Guarantor hereby waives any right to assert against any member of the Lender Creditors or any Hedging Creditor any defense to the enforcement of this Guaranty, whether denominated “estoppel” or otherwise, based on or arising from an election any member of the Lender Creditors or any Hedging Creditor to nonjudicially foreclose on any such mortgage or deed of trust or as a result of any other exercise of remedies, whether under a mortgage or deed of trust or under any personal property security agreement.  Each Guarantor understands that the effect of the foregoing waiver may be that such Guarantor may have liability hereunder for amounts with respect to which such Guarantor may be left without rights of subrogation, reimbursement, contribution, or indemnity against Borrower, the other Guarantors or other guarantors or sureties.  Each Guarantor also agrees that the “fair market value” provisions of Section 580a of the California Code of Civil Procedure (and any similar law of New York or any other applicable jurisdiction) shall have no applicability with respect to the determination of such Guarantor’s liability under this Guaranty.

(f)            Without limiting the generality of any other waiver or other provision set forth in this Guaranty, each Guarantor waives all rights and defenses that such Guarantor may have if all or part of the Guaranteed Obligations are secured by real property.  This means, among other things:

(i)           Any member of the Lender Creditors or any Hedging Creditor may collect from such Guarantor without first foreclosing on any real or personal property collateral that may be pledged by such Guarantor, Borrower, any other Guarantor or any other guarantor.

(ii)          If any member of the Lender Creditors or any Hedging Creditor forecloses on any real property collateral that may be pledged by such Guarantor, Borrower, any other Guarantor or any other guarantor:

(1)The amount of the Guaranteed Obligations or any obligations of any guarantor in respect thereof may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price.

(2)The Administrative Agent may collect from such Guarantor even if any member of the Lender Creditors or any Hedging Creditor, by foreclosing on the real property collateral, has destroyed any right such Guarantor may have to collect from Borrower, any other Guarantor or any other guarantor.

This is an unconditional and irrevocable waiver of any rights and defenses each Guarantor may have if all or part of the Guaranteed Obligations are secured by real property.  These rights and defenses are based upon Section 580a, 580b, 580d, or 726 of the California Code of Civil Procedure and any similar law of New York or any other jurisdiction.

(g)   WITHOUT LIMITING THE GENERALITY OF ANY OTHER WAIVER OR OTHER PROVISION SET FORTH IN THIS GUARANTY, EACH GUARANTOR HEREBY WAIVES, TO THE MAXIMUM EXTENT SUCH WAIVER IS PERMITTED BY LAW, ANY AND ALL BENEFITS OR DEFENSES ARISING DIRECTLY OR INDIRECTLY UNDER ANY ONE OR MORE OF CALIFORNIA CIVIL CODE §§ 2787, 2799, 2808, 2815, 2819, 2820, 2821, 2822, 2838, 2839, 2847, 2848, AND 2855, CALIFORNIA CODE OF CIVIL PROCEDURE §§ 580A, 580B, 580C, 580D, AND 726, AND CHAPTER 2 OF TITLE 14 OF THE CALIFORNIA CIVIL CODE OR ANY SIMILAR LAWS OF ANY OTHER APPLICABLE JURISDICTION.

(h)   WITHOUT LIMITING THE GENERALITY OF ANY OTHER WAIVER OR OTHER PROVISION SET FORTH IN THIS GUARANTY, EACH GUARANTOR WAIVES ALL RIGHTS AND DEFENSES ARISING OUT OF AN ELECTION OF REMEDIES BY ANY MEMBER OF THE LENDER CREDITORS OR ANY HEDGING CREDITOR, EVEN THOUGH SUCH ELECTION OF REMEDIES (AS PROVIDED IN THE CREDIT AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE SECURED HEDGING AGREEMENTS), SUCH AS A NONJUDICIAL FORECLOSURE WITH RESPECT TO SECURITY FOR THE GUARANTEED OBLIGATIONS, HAS DESTROYED SUCH GUARANTOR’S RIGHTS OF SUBROGATION AND REIMBURSEMENT AGAINST BORROWER, THE OTHER GUARANTORS PARTY HERETO OR ANY OTHER GUARANTOR OR SURETY BY THE OPERATION OF APPLICABLE LAW INCLUDING §580D OF THE CALIFORNIA CODE OF CIVIL PROCEDURE OR ANY SIMILAR LAWS OF ANY OTHER APPLICABLE JURISDICTION.

(i)    Without limiting the generality of any other waiver or other provision set forth in this Guaranty, each Guarantor hereby also agrees to the following waivers:

(i)        the Administrative Agent’s right to enforce this Guaranty is absolute and is not contingent upon the genuineness, validity or enforceability of the Guaranteed Obligations or any of

the Credit Documents or the Secured Hedging Agreements.  Each Guarantor waives all benefits and defenses it may have under California Civil Code Section 2810 or any similar laws in any other applicable jurisdiction and agrees that the Administrative Agent’s rights under this Guaranty shall be enforceable even if Borrower had no liability at the time of execution of the Credit Documents or the Secured Hedging Agreements or the Guaranteed Obligations are unenforceable in whole or in part, or Borrower ceases to be liable with respect to all or any portion of the Guaranteed Obligations.

(ii)           Each Guarantor waives all benefits and defenses it may have under California Civil Code Section 2809 or any similar laws in any other applicable jurisdiction with respect to its obligations under this Guaranty and agrees that the Administrative Agent’s rights under the Credit Documents and the rights of the Hedging Creditors under the Secured Hedging Agreements will remain enforceable even if the amount guaranteed hereunder is larger in amount and more burdensome than that for which Borrower is responsible.  The enforceability of this Guaranty against each Guarantor shall continue until payment in cash in full of the Guaranteed Obligations and shall not be limited or affected in any way by any impairment or any diminution or loss of value of any security or collateral for Borrower’s obligations under the Credit Documents or the Secured Hedging Agreements, from whatever cause, the failure of any security interest in any such security or collateral or any disability or other defense of Borrower, any other Guarantor, any other guarantor of Borrower’s obligations under any other Credit Document or Secured Hedging Agreements, any pledgor of collateral for any Person’s obligations to the Administrative Agent or any other Person in connection with the Credit Documents or Secured Hedging Agreements.

(iii)          Each Guarantor waives all benefits and defenses it may have under California Civil Code §§ 2845, 2849 and 2850 or any similar laws of any other applicable jurisdiction with respect to its obligations under this Guaranty, including the right to require the Administrative Agent to (A) proceed against Borrower, any other Guarantor, or any other guarantor of Borrower’s obligations under any Credit Document or Secured Hedging Agreement, any other pledgor of collateral for any Person’s obligations to the Administrative Agent or any other Person in connection with the Guaranteed Obligations, (B) proceed against or exhaust any other security or collateral the Administrative Agent may hold, or (C) pursue any other right or remedy for such Guarantor’s benefit, and agrees that the Administrative Agent may exercise its right under this Guaranty without taking any action against Borrower, any other Guarantor or any other guarantor of Borrower’s obligations under the Credit Documents or Secured Hedging Agreement, any pledgor of collateral for any Person’s obligations to the Administrative Agent or any other Person in connection with the Guaranteed Obligations, and without proceeding against or exhausting any security or collateral the Administrative Agent holds.

(iv)          The paragraphs in this Section 6 which refer to certain sections of the California Civil Code are included in this Guaranty solely out of an abundance of caution and shall not be construed to mean that any of the above-referenced provisions of California law are in any way applicable to this Guaranty.

7.             Releases.  Each Guarantor consents and agrees that, without notice to or by any Guarantor and without affecting or impairing the obligations of any Guarantor hereunder, any member of the Lender Creditors or any Hedging Creditor may, by action or inaction, compromise or settle, shorten or extend the Initial Maturity Date, the Maturity Date or any other period of duration or the time for the payment of the Obligations, or discharge the performance of the Obligations, or may refuse to enforce the Obligations, or otherwise elect not to enforce the Obligations, or may, by action or inaction, release all or any one or more parties to, any one or more of the terms and provisions of the Credit Agreement, any of the other Credit Documents or any Secured Hedging Agreement or may grant other indulgences to Borrower, any other Guarantor or any other guarantor in respect thereof, or may amend or modify in any manner and at any time (or from time to time) any one or more of the Obligations, the Credit Agreement, any other

Credit Document or any Secured Hedging Agreement (including any increase or decrease in the principal amount of any Obligations or the interest, fees or other amounts that may accrue from time to time in respect thereof), or may, by action or inaction, release or substitute Borrower, any other Guarantor or any other guarantor, if any, of the Guaranteed Obligations, or may enforce, exchange, release, or waive, by action or inaction, any security for the Guaranteed Obligations or any other guaranty of the Guaranteed Obligations, or any portion thereof.

8.             Keepwell.  Each Qualified ECP Credit Party jointly and severally (together with each other Qualified ECP Credit Party) hereby absolutely, unconditionally and irrevocably (i) guarantees the prompt payment and performance of all Specified Swap Obligations owing by each Non-Qualifying Party (it being understood and agreed that this guarantee is a guaranty of payment and not of collection), and (ii) undertakes to provide such funds or other support as may be needed from time to time by any Non-Qualifying Party to honor all of such Non-Qualifying Party’s obligations under the Credit Agreement or any other Credit Document in respect of Specified Swap Obligations (provided, however, that each Qualified ECP Credit Party shall only be liable under this Section 8 for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Section 8, or otherwise under this Guaranty or any other Credit Document, voidable under applicable law, including applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations of each Qualified ECP Credit Party under this Section 8 shall remain in full force and effect until payment in full of the Obligations and termination of this Guaranty and the other Credit Documents. Each Qualified ECP Credit Party intends that this Section 8 constitute, and this Section 8 shall be deemed to constitute, a guarantee of the obligations of, and a “keepwell, support, or other agreement” for the benefit of each other Credit Party for all purposes of Section 1a(18)(A)(v)(II) of the CEA.

9.             No Election.  The Lender Creditors and the Hedging Creditors shall have the right to seek recourse against each Guarantor to the fullest extent provided for herein and no election by any of the Lender Creditors or any of the Hedging Creditors to proceed in one form of action or proceeding, or against any Person or party, or on any obligation, shall constitute a waiver of any Lender Creditor’s or any Hedging Creditor’s right to proceed in any other form of action or proceeding or against other Persons or parties unless the Administrative Agent, on behalf and at the direction of the Lender Creditors or the Hedging Creditors, has expressly waived such right in writing.  Specifically, but without limiting the generality of the foregoing, no action or proceeding by any of the Lender Creditors or the Hedging Creditors under any document or instrument evidencing the Guaranteed Obligations shall serve to diminish the liability of any Guarantor under this Guaranty except to the extent that the Lender Creditors and the Hedging Creditors finally and unconditionally shall have realized payment in cash in full of the Guaranteed Obligations by such action or proceeding.

10.          Revival and Reinstatement.  If the incurrence or payment of the Guaranteed Obligations or the obligations of any Guarantor under this Guaranty by such Guarantor or the transfer by such Guarantor to the Administrative Agent of any property of such Guarantor should for any reason subsequently be declared to be void or voidable under any state or federal law relating to creditors’ rights, including provisions of the Bankruptcy Code relating to fraudulent conveyances, preferences, or other voidable or recoverable payments of money or transfers of property (collectively, a “Voidable Transfer”), and if any of the Lender Creditors or Hedging Creditors is required to repay or restore, in whole or in part, any such Voidable Transfer, or elects to do so upon the reasonable advice of its counsel, then, as to any such Voidable Transfer, or the amount thereof that the applicable Lender Creditor or Hedging Creditor is required or elects to repay or restore, and as to all reasonable costs, expenses, and attorneys’ fees of the applicable Lender Creditor or Hedging Creditor related thereto, the liability of each Guarantor automatically shall be revived, reinstated, and restored and shall exist as though such Voidable Transfer had never been made.

11.  Financial Condition of Borrower.  Each Guarantor represents and warrants to the Lender Creditors and the Hedging Creditors that it is currently informed of the condition (financial or otherwise) of Borrower and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Guaranteed Obligations.  Each Guarantor further represents and warrants to the Lender Creditors and the Hedging Creditors that it has read and understands the terms and conditions of the Credit Agreement, each other Credit Document and each Secured Hedging Agreement.  Each Guarantor hereby covenants that it will continue to keep itself informed of Borrower’s financial condition, the condition (financial or otherwise) of the other Guarantors and any other guarantors, if any, and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Guaranteed Obligations.

12.  Payments; Application.  All payments to be made hereunder by any Guarantor shall be made in Dollars, in immediately available funds, and without deduction (whether for taxes or otherwise) or offset and shall be applied to the Guaranteed Obligations in accordance with the terms of the Credit Agreement and the Intercreditor Agreement and, after the execution thereof, any Junior Lien Intercreditor Agreement, any Pari Passu Intercreditor Agreement and any Other Intercreditor Agreement.

13.  Attorneys’ Fees and Costs.  Each Guarantor agrees, jointly and severally, to pay, on demand, all attorneys’ fees and all other costs and expenses which may be incurred by the Administrative Agent, the Security Agent, the Lenders and/or the Hedging Creditors in connection with the enforcement of this Guaranty or in any way arising out of, or consequential to, the protection, assertion, or enforcement of the Guaranteed Obligations (or any security therefor) or any rights or remedies related to the foregoing, irrespective of whether suit is brought.

14.  Notices.  All notices and other communications hereunder to the Administrative Agent shall be in writing and shall be mailed, sent, or delivered in accordance with Section 12.03 of the Credit Agreement.  All notices and other communications hereunder to the Guarantors shall be in writing and shall be mailed, sent, or delivered in care of Borrower in accordance with Section 12.03 of the Credit Agreement.

15.  Cumulative Remedies.  No remedy under this Guaranty, under the Credit Agreement, any other Credit Document or under any Secured Hedging Agreement is intended to be exclusive of any other remedy, but each and every remedy shall be cumulative and in addition to any and every other remedy given under this Guaranty, under the Credit Agreement, any other Credit Document or any Secured Hedging Agreement, and those remedies provided by law.  No delay or omission by the Lender Creditors, the Hedging Creditors or the Administrative Agent on behalf thereof to exercise any right under this Guaranty shall impair any such right nor be construed to be a waiver thereof.  No failure on the part of the Lender Creditors, the Hedging Creditors or the Administrative Agent on behalf thereof to exercise, and no delay in exercising, any right under this Guaranty shall operate as a waiver thereof; nor shall any single or partial exercise of any right under this Guaranty preclude any other or further exercise thereof or the exercise of any other right.

16.  Severability of Provisions.  Each provision of this Guaranty shall be severable from every other provision of this Guaranty for the purpose of determining the legal enforceability of any specific provision.

17.  Entire Agreement; Amendments.  This Guaranty constitutes the entire agreement between the Guarantors, the Lender Creditors and the Hedging Creditors pertaining to the subject matter contained herein.  Except as expressly set forth herein or in the Credit Agreement, this Guaranty may not be altered, amended, or modified, nor may any provision hereof be waived or noncompliance therewith consented to, except by means of a writing executed by each Guarantor and the Administrative Agent, on behalf and at

the direction of the Lender Creditors and the Hedging Creditors.  Any such alteration, amendment, modification, waiver, or consent shall be effective only to the extent specified therein and for the specific purpose for which given.  No course of dealing and no delay or waiver of any right or default under this Guaranty shall be deemed a waiver of any other, similar or dissimilar, right or default or otherwise prejudice the rights and remedies hereunder.

18.  Successors and Assigns.  This Guaranty shall be binding upon each Guarantor and its successors and assigns and shall inure to the benefit of the successors and assigns of the Lender Creditors and the Hedging Creditors; provided, however, no Guarantor shall assign this Guaranty or delegate any of its duties hereunder without the Administrative Agent’s prior written consent and any unconsented to assignment shall be absolutely null and void.  In the event of any assignment, participation, or other transfer of rights by any member of the Lender Creditors or the Hedging Creditors, the rights and benefits herein conferred upon the Lender Creditors and the Hedging Creditors shall automatically extend to and be vested in such assignee or other transferee.

19.  No Third Party Beneficiary.  This Guaranty is solely for the benefit of each member of the Lender Creditors, each Hedging Creditor, and each of their successors and assigns and may not be relied on by any other Person.

20.  CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER.

THE VALIDITY OF THIS GUARANTY, THE CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT HEREOF, AND THE RIGHTS OF THE PARTIES HERETO (WHETHER IN CONTRACT, TORT OR OTHERWISE) WITH RESPECT TO ALL MATTERS ARISING HEREUNDER OR RELATED HERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAWS PRINCIPLES THAT REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.

THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS GUARANTY SHALL BE TRIED AND LITIGATED ONLY IN THE STATE AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, FEDERAL COURTS LOCATED IN THE COUNTY OF NEW YORK, BOROUGH OF MANHATTAN AND STATE OF NEW YORK, PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY GUARANTOR, ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE ADMINISTRATIVE AGENT’S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE ADMINISTRATIVE AGENT ELECTS TO BRING SUCH ACTION OR WHERE SUCH GUARANTOR, COLLATERAL OR OTHER PROPERTY MAY BE FOUND.  EACH GUARANTOR AND EACH OF THE LENDER CREDITORS AND HEDGING CREDITORS WAIVE, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 20.

EACH GUARANTOR AND EACH OF THE LENDER CREDITORS AND HEDGING CREDITORS HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS GUARANTY OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS.  EACH GUARANTOR AND EACH OF THE

LENDER CREDITORS AND HEDGING CREDITORS REPRESENT THAT EACH HAS REVIEWED THIS WAIVER AND EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.  IN THE EVENT OF LITIGATION, A COPY OF THIS GUARANTY MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.

EACH GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN THE COUNTY OF NEW YORK, BOROUGH OF MANHATTAN AND THE STATE OF NEW YORK, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY CREDIT DOCUMENTS, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT AND IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.  NOTHING IN THIS GUARANTY SHALL AFFECT ANY RIGHT THAT AGENT MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS GUARANTY AGAINST ANY GUARANTOR OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.

21.  Counterparts; Telefacsimile Execution.  This Guaranty may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, when taken together, shall constitute but one and the same Guaranty.  Delivery of an executed counterpart of this Guaranty by telefacsimile or other electronic method of transmission shall be equally as effective as delivery of an original executed counterpart of this Guaranty.  Any party delivering an executed counterpart of this Guaranty by telefacsimile or other electronic method of transmission also shall deliver an original executed counterpart of this Guaranty but the failure to deliver an original executed counterpart shall not affect the validity, enforceability, and binding effect of this Guaranty.

22.  Agreement to be Bound.  Each Guarantor hereby agrees to be bound by each and all of the terms and provisions of the Credit Agreement applicable to such Guarantor.  Without limiting the generality of the foregoing, by its execution and delivery of this Guaranty, each Guarantor hereby:  (a) makes to the Lender Creditors and Hedging Creditors each of the representations and warranties set forth in the Credit Agreement, each other Credit Document and each Secured Hedging Agreement applicable to such Guarantor fully as though such Guarantor were a party thereto, and such representations and warranties are incorporated herein by this reference, mutatis mutandis; and (b) agrees and covenants (i) to do each of the things set forth in the Credit Agreement each other Credit Document and each Secured Hedging Agreement that Borrower agrees and covenants to cause each Guarantor to do, and (ii) to not do each of the things set forth in the Credit Agreement each other Credit Document and each Secured Hedging Agreement that Borrower agrees and covenants to cause each Guarantor not to do, in each case, fully as though such Guarantor was a party thereto, and such agreements and covenants are incorporated herein by this reference, mutatis mutandis.

23.  Termination.  Upon the payment in full of the Guaranteed Obligations, subject to Section 10, this Guaranty shall terminate (except for Section 6(d) of this Guaranty which shall survive), and Administrative Agent upon request by Borrower shall promptly execute and deliver such documents and instruments and take such further action reasonably requested by Borrower, at Borrower’s expense, as shall reasonably be necessary to evidence such termination with respect to such Guarantor, all without recourse to, or any representation or warranty by, Administrative Agent.

24.  New Subsidiaries.  Any Restricted Subsidiary (whether by acquisition, creation or “designation”) of any Credit Party that is required pursuant to Section 8.12 of the Credit Agreement to

execute a joinder to this Guaranty shall, at the time of such acquisition or formation or “designation”, as the case may be, execute and deliver to the Administrative Agent a supplement to this Guaranty in form reasonably satisfactory to the Administrative Agent.  Upon the execution and delivery of such a supplement by any such Restricted Subsidiary, such Restricted Subsidiary shall become a Guarantor hereunder with the same force and effect as if originally named as a Guarantor herein.  The execution and delivery of any instrument adding an additional Guarantor as a party to this Guaranty shall not require the consent of any Guarantor hereunder.  The rights and obligations of each Guarantor hereunder shall remain in full force and effect notwithstanding the addition of any new Guarantor hereunder.

25.  Right of Contribution.  Each Guarantor hereby agrees that to the extent that a Guarantor shall have paid more than its proportionate share of any payment made hereunder, such Guarantor shall be entitled to seek and receive contribution from and against any other Guarantor hereunder which has not paid its proportionate share of such payment.  Each Guarantor’s right of contribution shall be subject to the terms and conditions of Section 6(d).  The provisions of this Section 25 shall in no respect limit the obligations and liabilities of any Guarantor to Administrative Agent, the Lender Creditors or the Hedging Creditors, and each Guarantor shall remain liable to Administrative Agent, the Lender Creditors and the Hedging Creditors for the full amount guaranteed by such Guarantor hereunder.

[Remainder of page intentionally left blank.]

IN WITNESS WHEREOF, the undersigned has executed and delivered this Guaranty as of the date first written above.

ADVANCEPIERRE FOODS HOLDINGS, INC., a Delaware corporation
By:
	Name:
	Title:
PIERRE HOLDCO, INC., a Delaware corporation
By:
	Name:
	Title:
CHEFS PANTRY, LLC, an Ohio limited liability company
By:
	Name:
	Title:
CLOVERVALE FARMS, LLC, an Ohio limited liability company
By:
	Name:
	Title:
ADVANCE FOOD COMPANY, LLC, an Oklahoma limited liability company
By:
	Name:
	Title:

[Signature Page to APF Guaranty]

APF LEGACY SUBS, LLC, an Ohio limited liability company
By:
	Name:
	Title:
BARBER FOODS, LLC, a Maine limited liability company
By:
	Name:
	Title:

[Signature Page to APF Guaranty]

Accepted and Agreed to:
MORGAN STANLEY SENIOR FUNDING, INC.,
as Administrative Agent
By:
	Name:
	Title:

[Signature Page to APF Guaranty]

EXHIBIT F

FORM OF SECURITY AGREEMENT

[See attached.]

SECURITY AGREEMENT

This SECURITY AGREEMENT (as may be amended, amended and restated, supplemented or otherwise modified from time to time, this “Agreement”), dated as of June 2, 2016, is made by and among THE GRANTORS listed on the signature pages hereof, and those additional entities that from time to time hereafter become parties hereto by executing the form of Supplement attached hereto as Annex 1 (collectively, the “Grantors” and each, a “Grantor”), and MORGAN STANLEY SENIOR FUNDING, INC., as security agent (in such capacity, together with its successors and permitted assigns in such capacity, the “Security Agent”) for the benefit of the Secured Creditors.

W I T N E S S E T H:

WHEREAS, pursuant to that certain Term Loan Credit Agreement, dated as of even date herewith (as amended, restated, amended and restated, supplemented, modified, renewed, refinanced or extended from time to time, the “Credit Agreement”) among AdvancePierre Foods Holdings, Inc., a Delaware corporation, Pierre Holdco, Inc., a Delaware corporation, AdvancePierre Foods, Inc., a Delaware corporation, as borrower (“Borrower”), the lenders party thereto (the “Lenders”), the Security Agent, and Morgan Stanley Senior Funding, Inc., as administrative agent on behalf of the Lenders (the “Administrative Agent”, and together with the Lenders and the Security Agent, the “Lender Creditors”), the Lender Creditors have agreed to make certain financial accommodations available to Borrower from time to time pursuant to the terms and conditions thereof;

WHEREAS, the Credit Parties may enter into (or be a party to) one or more Secured Hedging Agreements with a Hedging Creditor (the Hedging Creditors and the Lender Creditors are herein called the “Secured Creditors”);

WHEREAS, the Security Agent has agreed to act as agent for the benefit of the Secured Creditors in connection with the transactions contemplated by the Credit Agreement and this Agreement;

WHEREAS, in order to induce the Lender Creditors to enter into the Credit Agreement and the other Credit Documents, to induce the Hedging Creditors to enter into Secured Hedging Agreements and to induce the Secured Creditors to make financial accommodations to the Borrower as provided for in the Credit Agreement, the other Credit Documents and the Secured Hedging Agreements, the Grantors have agreed to grant a continuing security interest in and to the Collateral in order to secure the prompt and complete payment, observance and performance of, among other things, the Secured Obligations; and

WHEREAS, the Intercreditor Agreement governs the relative rights and priorities of the Secured Creditors and the ABL Secured Parties in respect of the Term Loan Priority Collateral and the ABL Priority Collateral;

NOW, THEREFORE, in consideration of the recitals set forth above, and for other good and valuable consideration, the receipt, sufficiency and adequacy of which are hereby acknowledged, the parties hereto agree as follows:

1.             Defined Terms. All capitalized terms used herein (including in the introductory paragraph and the recitals hereof) without definition shall have the meanings ascribed thereto in the Credit Agreement.  Any terms used in this Agreement (whether capitalized or lower case) that are defined in the Code shall be construed and defined as set forth in the Code unless otherwise defined herein or in the Credit Agreement; provided, however, that to the extent that the Code is used to define any term used herein and if such term is defined differently in different Articles of the Code, the definition of such term contained in Article 9 of the Code shall govern. In addition to those terms defined elsewhere in this Agreement, as used in this Agreement, the following terms shall have the following meanings:

APF — Security Agt

“ABL Agent” has the meaning assigned to the term “ABL Security Agent” in the Intercreditor Agreement.

“ABL Documents” has the meaning specified therefor in the Intercreditor Agreement.

“ABL Priority Collateral” has the meaning specified therefor in the Intercreditor Agreement.

“ABL Secured Parties” has the meaning specified therefor in the Credit Agreement.

“Account” means an account (as that term is defined in Article 9 of the Code).

“Account Debtor” means an account debtor (as that term is defined in the Code).

“Agreement” has the meaning specified therefor in the introductory paragraph to this Agreement.

“Books” means books and records (including each Grantor’s Records indicating, summarizing, or evidencing such Grantor’s assets (including the Collateral) or liabilities, each Grantor’s Records relating to such Grantor’s business operations or financial condition, and each Grantor’s goods or General Intangibles related to such information).

“Borrower” has the meaning specified therefor in the recitals to this Agreement.

“Cash Equivalents” has the meaning specified therefor in the Credit Agreement.

“Chattel Paper” means chattel paper (as that term is defined in the Code) and includes tangible chattel paper and electronic chattel paper.

“Code” means the New York Uniform Commercial Code, as in effect from time to time; provided, however, that in the event that, by reason of mandatory provisions of law, any or all of the perfection, priority, or remedies with respect to the Security Agent’s Lien on any Collateral is governed by the Uniform Commercial Code as enacted and in effect in a jurisdiction other than the State of New York, the term “Code” shall mean the Uniform Commercial Code as enacted and in effect in such other jurisdiction solely for purposes of the provisions thereof relating to such perfection, priority, or remedies.

“Collateral” has the meaning specified therefor in Section 2.

“Collections” means all cash, checks, notes instruments and other items of payment (including insurance proceeds, cash proceeds of asset sales, rental proceeds and tax refunds).

“Commercial Tort Claims” means commercial tort claims (as that term is defined in the Code), and includes those commercial tort claims listed on Schedule 1.

“Control Agreement” has the meaning specified therefor in the Credit Agreement.

“Copyrights” means any and all copyrights and copyright registrations, including (i) the copyright registrations and recordings thereof and all applications in connection therewith listed on Schedule 2, (ii) all reissues, continuations, extensions or renewals thereof, (iii) all income, license fees, royalties, damages and payments now and hereafter due or payable under and with respect thereto, including payments under all licenses entered into in connection therewith and damages and payments for

2

past, present or future infringements thereof, (iv) the right to sue for past, present and future infringements thereof and (v) all rights corresponding thereto throughout the world.

“Copyright Security Agreement” means each Copyright Security Agreement among Grantors, or any of them, and the Security Agent, for the benefit of the Secured Creditors, in substantially the form of Exhibit A, pursuant to which the Grantors have granted to the Security Agent, for the benefit of the Secured Creditors, a security interest in all their respective Copyrights.

“Credit Agreement” has the meaning specified therefor in the recitals to this Agreement.

“Credit Document” has the meaning specified therefor in the Credit Agreement.

“Credit Party” has the meaning specified therefor in the Credit Agreement.

“Deposit Account” means a deposit account (as that term is defined in the Code).

“Domain Names” means all Internet domain names and associated uniform resource locator addresses.

“Effective Date” has the meaning specified therefor in the Credit Agreement.

“Equipment” means (i) equipment (as that term is defined in the Code), (ii) all machinery, manufacturing equipment, data processing equipment, computers, office equipment, furnishings, furniture, appliances, fixtures and tools (in each case, regardless of whether characterized as equipment under the UCC) and (iii) all accessions or additions thereto, all parts thereof, whether or not at any time of determination incorporated or installed therein or attached thereto, and all replacements therefor, wherever located, now or hereafter existing, including any fixtures.

“Event of Default” has the meaning specified therefor in the Credit Agreement.

“Exchange Act” means the Securities Exchange Act of 1934, as in effect from time to time.

“Excluded Joint Venture Interest” means the entire interest at any time owned by any Grantor in any joint venture that is not a Subsidiary of such Grantor to the extent (and only for so long as) the joint venture agreement for such joint venture or applicable law prohibits the assignment of, or granting of a security interest in, the joint venture interests of such joint venture and such prohibitions are not rendered invalid or otherwise unenforceable under Section 9-406, 9-407, 9-408, or 9-409 of the Code or other applicable law, it being understood and agreed, however, (i) any such excluded joint venture interest shall otherwise be subject to the security interests created by this Agreement (and shall become a “Joint Venture Interest” for all purposes of this Agreement) upon the receipt by such Grantor of any necessary consents, approvals or waivers permitting the assignment thereof or the granting of a security interest therein, and (ii) the Borrower shall, if reasonably requested by the Security Agent, use commercially reasonable efforts to obtain such consents, approvals or waivers.

“Excluded Non-Wholly Owned Subsidiary Interest” means the entire equity interest at any time owned by any Grantor in any Non-Wholly Owned Subsidiary of such Grantor to the extent (and only for so long as) the shareholder agreement or constituent documents for such Subsidiary, or applicable law, regulation or contractual obligation, prohibits the assignment of, or granting of a security interest in, the equity interests of such Non-Wholly Owned Subsidiary and such prohibitions are not rendered invalid or otherwise unenforceable under Section 9-406, 9-407, 9-408, or 9-409 of the Code, or to the extent (and only for so long as) the assignment of, or the granting of a security interest in, the

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equity interests of such Non-Wholly Owned Subsidiary requires the consent, approval, license or authorization of a governmental authority (including the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government), it being understood and agreed, however, (i) any such excluded Subsidiary interest shall otherwise be subject to the security interests created by this Agreement (and shall become a “Non-Wholly Owned Subsidiary Interest” for all purposes of this Agreement) upon the receipt by such Grantor of any necessary consents, approvals, licenses, authorizations or waivers permitting the assignment thereof or the granting of a security interest therein, and (ii) the Borrower shall, if reasonably requested by the Security Agent, use commercially reasonable efforts to obtain such consents, approvals or waivers.

“Excluded Partnership Interest” means the entire general partnership interest or limited partnership interest at any time owned by any Grantor in any general partnership or limited partnership to the extent (and only for so long as) the partnership agreement for such partnership or applicable law prohibits the assignment of, or granting of a security interest in, the partnership interests of such partnership and such prohibitions are not rendered invalid or otherwise unenforceable under Section 9-406, 9-407, 9-408, or 9-409 of the Code, it being understood and agreed, however, (i) any such excluded partnership interest shall otherwise be subject to the security interests created by this Agreement (and shall become a “Partnership Interest” for all purposes of this Agreement) upon the receipt by such Grantor of any necessary consents, approvals or waivers permitting the assignment thereof or the granting of a security interest therein, and (ii) the Borrower shall, if reasonably requested by the Security Agent, use commercially reasonable efforts to obtain such consents, approvals or waivers.

“Excluded Swap Obligation” has the meaning specified therefor in the Credit Agreement.

“First Priority” has the meaning specified therefor in the Intercreditor Agreement.

“Foreign Subsidiary” has the meaning specified therefor in the Credit Agreement.

“General Intangibles” means general intangibles (as that term is defined in the Code) and includes payment intangibles, software, contract rights, rights to payment, rights under Interest Rate Protection Agreements or Other Hedging Agreements (including the right to receive payment on account of the termination (voluntarily or involuntarily) of any Interest Rate Protection Agreements or Other Hedging Agreement), rights arising under common law, statutes, or regulations, choses or things in action, goodwill (including the goodwill associated with any Trademark), Intellectual Property, purchase orders, customer lists, monies due or recoverable from pension funds, route lists, rights to payment and other rights under any royalty or licensing agreements, including Intellectual Property Licenses, infringement claims, computer programs, information contained on computer disks or tapes, software, literature, reports, catalogs, pension plan refunds, pension plan refund claims, insurance premium rebates, tax refunds, and tax refund claims, interests in a partnership or limited liability company which do not constitute a security under Article 8 of the Code, and any other personal property other than Commercial Tort Claims, money, Accounts, Chattel Paper, Deposit Accounts, goods, Investment Related Property, Negotiable Collateral, and oil, gas, or other minerals before extraction.

“Grantor” and “Grantors” have the respective meanings specified therefor in the introductory paragraph to this Agreement.

“Guaranty” has the meaning specified therefor in the Credit Agreement.

“Immaterial Subsidiary” has the meaning specified therefor in the Credit Agreement.

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“Insolvency Proceeding” means any proceeding commenced by or against any person under a provision of the Bankruptcy Code or under any other state or federal bankruptcy or insolvency law, assignments for the benefit of creditors formal or informal moratoria, compositions, extensions generally with creditors, or proceeding seeking reorganization, arrangement, or other similar relief.

“Intellectual Property” means any and all Intellectual Property Licenses, Patents, Copyrights, Trademarks, Domain Names and all confidential and proprietary information, including trade secrets, know-how, inventions (whether or not patentable), algorithms, software programs (including source code and object code), processes, product designs, industrial designs, blueprints, drawings, data, customer lists, specifications, documentations, programming materials, reports, catalogs, literature and any other forms of technology of any kind.

“Intellectual Property Licenses” means license agreements granting rights under or interests in any patent, trademark, copyright or other intellectual property, including software license agreements with any other party, whether the applicable Grantor is a licensee or licensor under any such license agreement (but excluding any off-the-shelf software license agreement), including the license agreements listed on Schedule 3 and the right to use the foregoing in connection with the enforcement of the Secured Creditors’ rights under the Credit Documents, including the right to prepare for sale and sell any and all Inventory and Equipment now or hereafter owned by any Grantor and now or hereafter covered by such licenses.

“Intercreditor Agreement” has the meaning specified therefor in the Credit Agreement.

“Inventory” means inventory (as that term is defined in the Code).

“Investment Related Property” means (i) any and all investment property (as that term is defined in the Code), and (ii) any and all of the following (regardless of whether classified as investment property under the Code):  all Pledged Interests, Pledged Operating Agreements, and Pledged Partnership Agreements.

“Lender Creditors” has the meaning specified in the recitals to this Agreement.

“Letter of Credit Rights” means letter-of-credit rights (as that term is defined in the Code).

“Negotiable Collateral” means letters of credit, letter-of-credit rights, instruments, promissory notes, drafts and documents (as each such term is defined in the Code).

“Obligations” has the meaning specified therefor in the Credit Agreement.

“Patents” means patents and patent applications, including (i) the patents and patent applications listed on Schedule 4, (ii) all renewals, continuations, divisionals, continuations-in-part, reissues and re-examinations thereof, (iii) all income, royalties, damages and payments now and hereafter due or payable under and with respect thereto, including payments under all licenses entered into in connection therewith and damages and payments for past, present or future infringements thereof, (iv) the right to sue for past, present and future infringements thereof, and (v) all rights corresponding thereto throughout the world.

“Patent Security Agreement” means each Patent Security Agreement among the Grantors, or any of them, and the Security Agent, for the benefit of the Secured Creditors, in substantially the form of Exhibit B, pursuant to which the Grantors have granted to the Security Agent, for the benefit of the Secured Creditors, a security interest in all their respective Patents.

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“Permitted Liens” has the meaning specified therefor in the Credit Agreement.

“Person” has the meaning specified therefor in the Credit Agreement.

“Pledge-Excluded Subsidiary” means (i) any Unrestricted Subsidiary, (ii) any Domestic Subsidiary that is owned by a Foreign Subsidiary, (iii) any Foreign Subsidiary that is owned by another Foreign Subsidiary or by a Pass-Through Foreign Holding Company, (iv) any Domestic Subsidiary that is a registered 501c-3 non-profit organization, or (v) any other Subsidiary to the extent that the cost of obtaining a perfected pledge of the Stock of such Subsidiary outweighs the benefit afforded thereby as reasonably determined by the Security Agent.

“Pledged Companies” means, each Person listed on Schedule 5 as a “Pledged Company”, together with each other Person (other than (x) any Pledge-Excluded Subsidiary, and (y) any Excluded Subsidiary for as long as the Stock of such Excluded Subsidiary consists solely of Excluded Joint Venture Interests, Excluded Non-Wholly Owned Subsidiary Interests, and/or Excluded Partnership Interests), all or a portion of the Stock of which, is acquired or otherwise owned by a Grantor after the Effective Date.

“Pledged Interests” means all of each Grantor’s right, title and interest in and to all of the Stock now or hereafter owned by such Grantor (other than director’s qualifying shares), regardless of class or designation, including in each of the Pledged Companies, and all substitutions therefor and replacements thereof, all proceeds thereof and all rights relating thereto, also including any certificates representing the Stock, the right to receive any certificates representing any of the Stock, all warrants, options, share appreciation rights and other rights, contractual or otherwise, in respect thereof and the right to receive all dividends, distributions of income, profits, surplus, or other compensation by way of income or liquidating distributions, in cash or in kind, and all cash, instruments, and other property from time to time received, receivable, or otherwise distributed in respect of or in addition to, in substitution of, on account of, or in exchange for any or all of the foregoing; provided, however, that for the purposes of Sections 5 and 6 of this Agreement, the term “Pledged Interests” shall not include any Stock of any Immaterial Subsidiary solely the extent that such inclusion would require any actions to perfect the Security Agent’s security interests in such Pledged Interests beyond the filing of a financing statement with respect to the assets of applicable Grantor.

“Pledged Interests Addendum” means a Pledged Interests Addendum substantially in the form of Exhibit C.

“Pledged Operating Agreements” means all of each Grantor’s rights, powers, and remedies under the limited liability company operating agreements of each of the Pledged Companies that are limited liability companies.

“Pledged Partnership Agreements” means all of each Grantor’s rights, powers, and remedies under the partnership agreements of each of the Pledged Companies that are partnerships.

“Proceeds” has the meaning specified therefor in Section 2.

“Real Property” means any estates or interests in real property now owned or hereafter acquired by any Grantor or any Subsidiary of any Grantor and the improvements thereto.

“Record” means information that is inscribed on a tangible medium or which is stored in an electronic or other medium that is retrievable in perceivable form.

“SEC” means the United States Securities and Exchange Commission and any successor thereto.

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“Second Priority” has the meaning specified therefor in the Intercreditor Agreement.

“Secured Creditors” has the meaning specified in the recitals to this Agreement.

“Secured Obligations” means all (x) amounts owing by any Credit Party to the Administrative Agent, the Security Agent or any Lender pursuant to the terms of this Agreement or any other Credit Document and (y) obligations of any Credit Party arising under any Secured Hedging Agreement, including, in each of clauses (x) and (y), without limitation, all amounts in respect of any principal, interest (including any interest accruing following maturity of the Loans and interest accruing subsequent to the filing of a petition in bankruptcy, reorganization or similar proceeding at the rate provided for in the Credit Agreement, whether or not such interest is an allowed claim under any such proceeding or under applicable state, federal or foreign law), penalties, fees (including all legal fees and disbursements required to be paid by the Borrower and its Subsidiaries under any Credit Document), expenses, indemnifications, reimbursements and other liabilities, and guarantees of the foregoing amounts; provided, however, that “Secured Obligations” shall not include any Excluded Swap Obligations.

“Securities Account” means a securities account (as that term is defined in the Code).

“Security Agent” has the meaning specified therefor in the introductory paragraph to this Agreement.

“Security Agent’s Lien” means the Liens granted by the Grantors to the Security Agent pursuant to the Credit Documents.

“Security Interest” has the meaning specified therefor in Section 2.

“Stock” means all shares, options, warrants, interests, participations, or other equivalents (regardless of how designated) of or in a Person, whether voting or nonvoting, including common stock, preferred stock, membership interests, partnership interests, or any other “equity security” (as such term is defined in Rule 3a11-1 of the General Rules and Regulations promulgated by the SEC under the Exchange Act).

“Supporting Obligations” means supporting obligations (as such term is defined in the Code) and includes letters of credit and guaranties issued in support of Accounts, Chattel Paper, documents, General Intangibles, instruments or Investment Related Property.

“Term Loan Priority Collateral” has the meaning specified therefor in the Intercreditor Agreement.

“Trademark Security Agreement” means each Trademark Security Agreement among the Grantors, or any of them, and the Security Agent, for the benefit of the Secured Creditors, in substantially the form of Exhibit D, pursuant to which the Grantors have granted to the Security Agent, for the benefit of the Lender Creditors, a security interest in all their respective Trademarks.

“Trademarks” means any and all trademarks, trade names, service marks, trade dress, logos, slogans, designs or fictitious business names, registered trademarks, trademark applications, service marks, registered service marks and service mark applications, including (i) those marks listed on Schedule 6, (ii) all renewals thereof, (iii) all income, royalties, damages and payments now and hereafter due or payable under and with respect thereto, including payments under all licenses entered into in connection therewith and damages and payments for past or future infringements or dilutions thereof, (iv) the right to sue for past, present and future infringements and dilutions thereof, (v) the goodwill of each

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Grantor’s business symbolized by the foregoing or connected therewith, and (vi) all rights corresponding thereto throughout the world.

“Trademark Security Agreement” means each Trademark Security Agreement executed and delivered by Grantors, or any of them, and Security Agent, in substantially the form of Exhibit D.

“URL” means “uniform resource locator,” an internet web address.

2.             Grant of Security.  (a) Each Grantor hereby unconditionally grants, collaterally assigns, and pledges to the Security Agent, for the benefit of the Secured Creditors, to secure the Secured Obligations, a continuing security interest hereinafter referred to as the “Security Interest” in all personal property of such Grantor whether now owned or hereafter acquired or arising and wherever located, including such Grantor’s right, title, and interest in and to the following, whether now owned or hereafter acquired or arising and wherever located (the “Collateral”):

(i)         all of such Grantor’s Accounts;

(ii)        all of such Grantor’s Books;

(iii)       all of such Grantor’s Chattel Paper;

(iv)       all of such Grantor’s Deposit Accounts and Securities Accounts;

(v)        all of such Grantor’s Equipment and fixtures;

(vi)       all of such Grantor’s General Intangibles;

(vii)      all of such Grantor’s Inventory;

(viii)     all of such Grantor’s Investment Related Property;

(ix)       all of such Grantor’s Negotiable Collateral;

(x)        all of such Grantor’s rights in respect of Supporting Obligations;

(xi)       all of such Grantor’s interest with respect to any Commercial Tort Claims;

(xii)      all of such Grantor’s money and Cash Equivalents;

(xiii)     to the extent not covered by the preceding clauses (i) through (xii), all of such Grantor’s other personal property;

(xiv)    all of the proceeds (as such term is defined in the Code) and products, whether tangible or intangible, of any of the foregoing, including proceeds of insurance or Commercial Tort Claims covering or relating to any or all of the foregoing, and any and all Accounts, Books, Chattel Paper, Deposit Accounts, Equipment, General Intangibles, Inventory, Investment Related Property, Negotiable Collateral, Supporting Obligations, money, or other tangible or intangible property resulting from the sale, lease, license, exchange, collection, or other disposition of any of the foregoing, whatever is collected on, or distributed on account of any of the foregoing, any and all rights arising out of the foregoing, the proceeds of any award in condemnation with respect to any of the foregoing, any rebates or refunds, whether for taxes or otherwise, and all proceeds of any such proceeds, or any portion thereof or

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interest therein, and the proceeds thereof, claims arising out of the loss, non-conformity, or interference with the use of, defects, or infringement of rights in, or damage to, any of the foregoing, and all proceeds of any loss of, damage to, or destruction of the above, whether insured or not insured, and, to the extent not otherwise included, any indemnity, warranty, insurance, or guaranty payable by reason of loss or non-conformity of, defects or infringement of rights in, or damage to, or otherwise with respect to any of the foregoing (the “Proceeds”).  Without limiting the generality of the foregoing, the term “Proceeds” includes whatever is receivable or received when Investment Related Property or proceeds are sold, exchanged, collected, or otherwise disposed of, whether such disposition is voluntary or involuntary, and includes proceeds of any indemnity or guaranty payable to any Grantor or the Security Agent from time to time with respect to any of the Investment Related Property.

(b)           Notwithstanding anything contained in this Agreement to the contrary, the term “Collateral” shall not include: (i) any property if such grant of a security interest or pledge is prohibited by applicable law, rule or regulation or requires any governmental consent, approval, license or authorization with respect to such grant of a security interest or pledge, except to the extent that consent, approval, license or authorization has been received; (ii) any rights or interest in any contract, lease, permit, license, charter or other agreement covering real or personal property of any Grantor or any property subject to a purchase money security interest, capital lease obligation or similar arrangement to the extent that the grant of a security interest or lien therein would violate or invalidate or create a default under such contract, lease, permit, license, charter or agreement or purchase money, capital lease or similar arrangement or create a right of termination in favor of any other party thereto and such prohibition, violation, default or right of termination has not been waived or the consent of the other party to such contract, lease, permit, license, charter or agreement or purchase money, capital lease or similar arrangement has not been obtained (provided, that the foregoing exclusions in this clause (ii) shall in no way be construed (x) to apply to the extent that any described prohibition or restriction is ineffective under Section 9-406, 9-407, 9-408, or 9-409 of the Code or other applicable law, (y) to apply to the extent that any consent or waiver has been obtained that would permit the Security Agent’s security interest or lien to attach hereto notwithstanding the prohibition or restriction contained in such contract, lease, permit, license, charter or other agreement or purchase money, capital lease or similar arrangement, or (z) to limit, impair, or otherwise affect the Secured Creditors’ continuing security interests in and liens upon any rights or interests of any Grantor in or to (I) monies due or to become due under or in connection with any described contract, lease, permit, license, charter or other agreement (including any Accounts) or purchase money, capital lease or similar arrangement, or (II) any proceeds from the sale, license, lease, or other dispositions of any such contract, lease, permit, license, charter, or other agreement or purchase money, capital lease or similar arrangement); (iii) any intent-to-use US trademark application for which an amendment to allege use or statement of use has not been filed and accepted by the US Patent and Trademark Office (provided that each such intent-to-use application shall be considered Collateral immediately and automatically upon such filing and acceptance); (iv) more than 65% of the total outstanding voting Stock of any Foreign Subsidiary; (v) any outstanding Stock of any Pledge-Excluded Subsidiary; (vi) any Excluded Partnership Interest; (vii) any Excluded Joint Venture Interest; (viii) any Excluded Non-Wholly Owned Subsidiary Interest; (ix) any leasehold property interests; or (x) any Letter of Credit Rights and Commercial Tort Claims (other than to the extent constituting a Supporting Obligation and perfected pursuant to a filing under the UCC); provided, however, that in any event, the term “Collateral” shall include the certificated securities (as such term is defined in the Code) described on Schedule 5 hereto.

(c)           Notwithstanding anything to the contrary contained in this Section 2 or elsewhere in this Agreement, each Grantor and the Security Agent (on behalf of the Secured Creditors) acknowledges and agrees that:

(i)         the Security Interest granted pursuant to this Agreement (including

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pursuant to this Section 2) to the Security Agent for the benefit of the Secured Creditors (i) in the Term Loan Priority Collateral, shall be a First Priority Lien and (ii) in the ABL Priority Collateral, shall be a Second Priority Lien, fully junior, subordinated and subject to the Security Interest granted to the ABL Agent for the benefit of the ABL Secured Parties in the ABL Priority Collateral on the terms and conditions set forth in the ABL Documents and the Intercreditor Agreement and all other rights and benefits afforded hereunder to the Secured Creditors with respect to the ABL Priority Collateral are expressly subject to the terms and conditions of the Intercreditor Agreement; and

(ii)           each of the ABL Secured Parties’ security interests in the Collateral constitute security interests separate and apart (and of a different class and claim) from the Secured Creditors’ Security Interests in the Collateral.

(d)           NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE RELATIVE PRIORITIES AND THE EXERCISE OF RIGHTS AND REMEDIES OF THE SECURITY AGENT AND THE SENIOR CREDITORS HEREUNDER SHALL BE SUBJECT TO, AND GOVERNED BY THE TERMS OF, THE INTERCREDITOR AGREEMENTS.  IN THE EVENT OF ANY CONFLICT BETWEEN THE TERMS HEREOF AND THE TERMS OF THE INTERCREDITOR AGREEMENTS, THE PROVISIONS OF THE INTERCREDITOR AGREEMENTS SHALL CONTROL AT ANY TIME THAT ANY INTERCREDITOR AGREEMENT IS IN EFFECT, EXCEPT WITH RESPECT TO THE SCOPE OF THE ASSETS INCLUDED IN SECTION 2 HEREOF.

(e)           All rights of the Security Agent hereunder, the Security Interest in the Collateral and all obligations of each Grantor hereunder shall be absolute and unconditional irrespective of (a) any lack of validity or enforceability of the Credit Agreement, any other Credit Document, any agreement with respect to any of the Obligations or any other agreement or instrument relating to any of the foregoing, (b) any change in the time, manner or place of payment of, or in any other term of, all or any of the Obligations, or any other amendment or waiver of or any consent to any departure from the Credit Agreement, any other Credit Document or any other agreement or instrument, (c) any exchange, release or non-perfection of any Lien on other collateral, or any release or amendment or waiver of or consent under or departure from any guarantee, securing or guaranteeing all or any of the Obligations or (d) any other circumstance that might otherwise constitute a defense available to, or a discharge of, any Pledgor in respect of the Obligations or this Agreement (other than a defense of payment or performance).

3.             Security for Obligations.  The Security Interest created hereby secures the payment and performance of the Secured Obligations, whether now existing or arising hereafter.  Without limiting the generality of the foregoing, this Agreement secures the payment of all amounts which constitute part of the Secured Obligations and would be owed by the Grantors, or any of them, to the Security Agent or any Secured Creditor, but for the fact that they are unenforceable or not allowable (in whole or in part) as a claim in an Insolvency Proceeding involving any Grantor due to the existence of such Insolvency Proceeding.

4.             Grantors Remain Liable.  Anything herein to the contrary notwithstanding, (a) each of the Grantors shall remain liable under the contracts and agreements included in the Collateral, including the Pledged Operating Agreements and the Pledged Partnership Agreements, to perform all of the duties and obligations thereunder to the same extent as if this Agreement had not been executed, (b) the exercise by the Security Agent or any other Secured Creditor of any of the rights hereunder shall not release any Grantor from any of its duties or obligations under such contracts and agreements included in the Collateral, and (c) none of the Secured Creditors shall have any obligation or liability under such contracts and agreements included in the Collateral by reason of this Agreement, nor shall any of the Secured Creditors be obligated to perform any of the obligations or duties of any Grantors thereunder or to take any action to collect or enforce any claim for payment assigned hereunder.  Until an Event of Default shall occur and be continuing, except as otherwise provided in this Agreement, the Credit

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Agreement, or other Credit Documents, the Grantors shall have the right to possession and enjoyment of the Collateral for the purpose of conducting the ordinary course of their respective businesses, subject to and upon the terms hereof and of the Credit Agreement and the other Credit Documents.  Without limiting the generality of the foregoing, it is the intention of the parties hereto that record and beneficial ownership of the Pledged Interests, including all voting, consensual, and dividend rights, shall remain in the applicable Grantor until the occurrence of an Event of Default and until the Security Agent has notified the applicable Grantor of the Security Agent’s election to exercise such voting, consensual, or dividend rights with respect to the Pledged Interests pursuant to Section 15 (although no such notice shall be required if an Event of Default under Section 10.01(e) of the Credit Agreement has occurred and is continuing).

5.             Representations and Warranties.  Each Grantor hereby represents and warrants as of the Effective Date as follows:

(a)           The exact legal name of each of the Grantors is set forth on the signature pages of this Agreement.

(b)           Schedule 7 sets forth all fee-owned Real Property owned by the Grantors as of the Effective Date.

(c)           As of the Effective Date, no Grantor (i) owns any Copyrights, Patents, or Trademarks or Domain Names that are the subject of a registration or pending application for registration, except as set forth on Schedules 2, 4 and 6 respectively, (ii) owns any unregistered Copyrights that are material to the business of the Grantors, taken as a whole, except as set forth on Schedule 2, and (iii) is a party to any Intellectual Property Licenses that are material to the business of the Grantors, taken as a whole, pursuant to which any Grantor receives a license to a third party’s Intellectual Property except as set forth of Schedule 3.  This Agreement is effective to create a valid and continuing Lien on such Copyrights, Intellectual Property Licenses, Patents and Trademarks and, upon filing of the Copyright Security Agreement with the United States Copyright Office and filing of the Patent Security Agreement and the Trademark Security Agreement with the United States Patent and Trademark Office, and the filing of appropriate financing statements in the jurisdictions listed on Schedule 8, all action necessary to protect and perfect the Security Interest in, to and on each Grantor’s Patents, Trademarks, or Copyrights within the United States has been taken and such perfected Security Interest is enforceable as such as against any and all creditors of and purchasers from any Grantor.

(d)           This Agreement creates a valid and binding security interest in the Collateral of each of the Grantors, to the extent a security interest therein can be created under the Code, securing the payment of the Secured Obligations.  Except to the extent a security interest in the Collateral cannot be perfected by the filing of a financing statement under the Code or pursuant to filings with the United States Patent and Trademark Office or the United States Copyright Office, all filings and other actions necessary to perfect and protect such security interest have been duly taken or will have been taken, upon (i) the filing of financing statements listing each applicable Grantor, as a debtor, and the Security Agent, as secured party, in the jurisdictions listed next to such Grantor’s name on Schedule 8, (ii) the filing of the Copyright Security Agreement with the United States Copyright Office and (iii) the filing of the Patent Security Agreement and the Trademark Security Agreement with the United States Patent and Trademark Office.  Upon the making of such filings, the Security Agent shall have a First Priority perfected security interest in the Collateral of each Grantor to the extent such security interest can be perfected by the filing of a financing statement or pursuant to filings with the United States Patent and Trademark Office or the United States Copyright Office.

(e)           (i) Except for the Security Interest created hereby, each Grantor is the sole holder of record and the legal and beneficial owner, free and clear of all Liens other than Permitted Liens, of the

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Pledged Interests indicated on Schedule 5 as being owned by such Grantor and, when acquired by such Grantor, any Pledged Interests acquired after the Effective Date in any Pledged Company; (ii) all of the Pledged Interests are duly authorized, validly issued, fully paid and nonassessable and the Pledged Interests constitute or will constitute the percentage of the issued and outstanding Stock of the Pledged Companies of such Grantor identified on Schedule 5, as supplemented or modified by any Pledged Interests Addendum or any Supplement to this Agreement; (iii) such Grantor has the right and requisite authority to pledge, the Investment Related Property pledged by such Grantor to the Security Agent as provided herein; (iv) all actions necessary to perfect,  establish the First Priority of, or otherwise protect, the Security Agent’s Liens in the Investment Related Collateral, and the proceeds thereof, have been duly taken, (A) upon the execution and delivery of this Agreement; (B) upon the taking of possession by the Security Agent (or its agent or designee) of any certificates representing the Pledged Interests, to the extent such Pledged Interests are represented by certificates, together with undated powers (or other documents of transfer acceptable to the Security Agent) endorsed in blank by the applicable Grantor; (C) upon the filing of financing statements in the applicable jurisdiction set forth on Schedule 8 for such Grantor with respect to the Pledged Interests owned by such Grantor that are not represented by certificates, and (D) with respect to any Securities Accounts, upon the delivery of Control Agreements with respect thereto; and (v) each Grantor has delivered to and deposited with the Security Agent (or, with respect to any Pledged Interests created or obtained after the Effective Date, will deliver and deposit in accordance with Sections 6(a) and (8)) all certificates representing the Pledged Interests owned by such Grantor to the extent such Pledged Interests are represented by certificates, and undated powers (or other documents of transfer acceptable to the Security Agent) endorsed in blank with respect to such certificates. None of the Pledged Interests owned or held by such Grantor has been issued or transferred to Grantor in violation of any securities registration, securities disclosure, or similar laws of any jurisdiction to which such issuance or transfer may be subject.

(f)            No consent, approval, authorization, or other order or other action by, and no notice to or filing with, any Governmental Authority or any other Person, other than (a) consents or approvals that have been obtained and that are still in force and effect and (b) filings and recordings with respect to the Collateral to be made by, or otherwise delivered to, the Security Agent for filing or recordation, is required (i) for the grant, validity, enforceability or perfection (to the extent perfection can be obtained through filing or recordation) of a Security Interest by such Grantor in and to the Collateral pursuant to this Agreement or for the execution, delivery, or performance of this Agreement by such Grantor, or (ii) for the exercise by the Security Agent of the voting or other rights provided for in this Agreement with respect to the Investment Related Property or the remedies in respect of the Collateral pursuant to this Agreement, except as may be required in connection with such disposition of Investment Related Property by laws affecting the offering and sale of securities generally and for consents or approvals with respect to such exercise or disposition the failure of which to obtain could not reasonably be expected to cause a Material Adverse Effect.  No Intellectual Property License to which such Grantor is a party requires any consent for such Grantor to grant the Security Interest granted hereunder in such Grantor’s right, title or interest in or to any Copyrights, Patents, Trademarks or material Intellectual Property Licenses.

6.             Covenants.  Each Grantor, jointly and severally, covenants and agrees with the Security Agent that from and after the date of this Agreement and until the date of termination of this Agreement in accordance with Section 22:

(a)           Possession of Collateral.  Subject to the terms of the Intercreditor Agreement, in the event that any Collateral, including Proceeds, is evidenced by or consists of Negotiable Collateral, Investment Related Property or Chattel Paper with a value or face amount in excess of $750,000, individually, or $1,500,000, in the aggregate, and if and to the extent that perfection or priority of the Security Agent’s Security Interest is dependent on or materially enhanced by possession, the applicable

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Grantor, promptly upon the written request of the Security Agent (and in no event later than 10 Business Days after receiving such request (or such longer time period as the Security Agent may agree, without any requirement for Lender consent)), shall execute such other documents and instruments as shall be requested by the Security Agent or, if applicable, endorse and deliver physical possession of such Negotiable Collateral, Investment Related Property, or Chattel Paper to the Security Agent, together with such undated powers endorsed in blank as shall be requested by the Security Agent;

(b)           Chattel Paper.

(i)            Subject to the terms of the Intercreditor Agreement, each Grantor, promptly upon the written request of the Security Agent (and in no event later than 10 Business Days after receiving such request (or such longer time period as the Security Agent may agree, without any requirement for Lender consent), shall take all steps reasonably necessary to grant the Security Agent control of all electronic Chattel Paper with a value or face amount in excess of $750,000, individually, or $1,500,000, in the aggregate, in accordance with the Code and all “transferable records” as that term is defined in Section 16 of the Uniform Electronic Transaction Act and Section 201 of the federal Electronic Signatures in Global and National Commerce Act as in effect in any relevant jurisdiction;

(ii)           Subject to the terms of the Intercreditor Agreement, if any Grantor retains possession of any Chattel Paper or Instruments (which retention of possession shall be subject to the extent permitted hereby and by the Credit Agreement) with a value or face amount in excess of $750,000, individually, or $1,500,000, in the aggregate, promptly upon the written request of the Security Agent (and in no event later than 10 Business Days after receiving such request (or such longer time period as the Security Agent may agree, without any requirement for Lender consent)), such Chattel Paper and Instruments shall be marked with the following legend: “This writing and the obligations evidenced or secured hereby are subject to the Security Interest of Morgan Stanley Senior Funding, Inc., as Security Agent for the benefit of the Secured Creditors”;

(c)           Control Agreements.

(i)            Except to the extent otherwise excused by the Credit Agreement or not required under the ABL Documents, each Grantor shall obtain an authenticated Control Agreement, from (or shall join, by way of joinder, amendment or amendment and restatement, an existing authenticated Control Agreement with) each bank maintaining a Deposit Account for such Grantor, in each case no later than the date that is the 60th day following the Effective Date (or such later date as may be agreed to by the Security Agent, without any requirement for Lender consent);

(ii)           Except to the extent otherwise excused by the Credit Agreement or not required under the ABL Documents, each Grantor shall obtain an authenticated Control Agreement from (or shall join, by way of joinder, amendment or amendment and restatement, an existing authenticated Control Agreement with) each issuer of uncertificated securities, securities intermediary, or commodities intermediary issuing or holding any financial assets or commodities to or for any Grantor, in each case no later than the date that is the 60th day following the Effective Date (or such later date as may be agreed to by the Security Agent, without any requirement for Lender consent); and

(iii)          The Security Agent agrees not to provide notice of control with respect to any Control Agreement unless an Event of Default has occurred and is continuing at the time such notice is provided and shall rescind such notice in accordance with the procedures set forth in the applicable Control Agreement (to the extent such procedures are set forth therein) if the applicable Event of Default is no longer continuing and no additional Event of Default has occurred and is continuing prior to the date of such rescission.

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(d)           Letter of Credit Rights.  Subject to the terms of the Intercreditor Agreement, each Grantor that is or becomes the beneficiary of a letter of credit with a value or face amount in excess of $750,000, individually, or $1,500,000, in the aggregate, shall promptly (and in any event within 30 days after becoming a beneficiary or such longer time period as the Security Agent may agree, without any requirement for Lender consent), notify the Security Agent thereof;

(e)           Commercial Tort Claims.  Subject to the terms of the Intercreditor Agreement, each Grantor shall promptly (and in any event within 30 days of receipt thereof (or such longer time period as the Security Agent may agree, without any requirement for Lender consent)), notify the Security Agent in writing upon incurring or otherwise obtaining a Commercial Tort Claim with a value in excess of $750,000, individually, or $1,500,000, in the aggregate, after the date hereof and, promptly upon the written request of the Security Agent (and in no event later than 10 Business Days after receiving such request (or such longer time period as the Security Agent may agree, without any requirement for Lender consent)), amend Schedule 1 to describe such after-acquired Commercial Tort Claim in a manner that reasonably identifies such Commercial Tort Claim, and hereby authorizes the filing of additional financing statements or amendments to existing financing statements describing such Commercial Tort Claims;

(f)            Government Contracts.  Subject to the terms of the Intercreditor Agreement, if any Account or Chattel Paper with a value or face amount in excess of $750,000, individually, or $1,500,000, in the aggregate, arises out of a contract or contracts with the United States of America or any department, agency, or instrumentality thereof, the Grantors shall promptly (and in any event within 30 days of the creation thereof (or such longer time period as the Security Agent may agree, without any requirement for Lender consent)) notify the Security Agent thereof in writing and execute any instruments or take any steps reasonably required by the Security Agent in order that all moneys due or to become due under such contract or contracts shall be assigned to the Security Agent, for the benefit of the Secured Creditors, and shall provide written notice thereof under the Assignment of Claims Act or other applicable law;

(g)           Intellectual Property.

(i)         Upon the written request of the Security Agent, in order to facilitate filings with the United States Patent and Trademark Office and the United States Copyright Office, each Grantor shall execute and deliver to the Security Agent, promptly (and in no event later than 10 Business Days after receiving such request (or such longer time period as the Security Agent may agree, without any requirement for Lender consent)), one or more Copyright Security Agreements, Trademark Security Agreements, or Patent Security Agreements to further evidence the Security Agent’s Lien on such Grantor’s Patents, Trademarks, or Copyrights, and the General Intangibles of such Grantor relating thereto or represented thereby, that constitute Collateral and that are subject to a registration or pending application for registration in the United States Copyright Office or the United States Patent and Trademark Office;

(ii)        With respect to Intellectual Property that is owned by a Grantor, each Grantor shall have the duty, to the extent determined by such Grantor in its reasonable business judgment to be necessary or economically desirable in the operation of such Grantor’s business, to use commercially reasonable efforts, (A) to promptly sue for infringement, misappropriation, or dilution and to recover any and all damages for such infringement, misappropriation, or dilution, (B) to prosecute diligently any trademark application or service mark application that is part of the Trademarks pending as of the date hereof or hereafter until the termination of this Agreement, (C) to prosecute diligently any patent application that is part of the Patents pending as of the date hereof or hereafter until the termination of this Agreement and (D) to take all reasonable and necessary action to preserve and maintain all of such Grantor’s Trademarks, Patents, Copyrights, Domain Names, other material Intellectual Property,

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Intellectual Property Licenses, and its rights therein, including filing of applications for renewal, affidavits of use and affidavits of noncontestability and opposition and interference and cancellation proceedings.  Each Grantor hereby agrees to take the steps described in this Section 6(g)(ii) with respect to all new or acquired Intellectual Property to which it or any of its Subsidiaries is now or later becomes entitled.  Each Grantor shall promptly file an application with the United States Copyright Office for any Copyright that has not been registered with the United States Copyright Office if such Copyright is material to the business of the Grantors, taken as a whole.  Any expenses incurred in connection with the foregoing shall be borne by the appropriate Grantor.  Each Grantor further agrees not to abandon any Trademark, Patent, Copyright or Intellectual Property License (except for dispositions not prohibited by the Credit Documents) that is economically desirable in the operation of such Grantor’s business as determined in the reasonable business judgment of such Grantor;

(iii)          Grantors acknowledge and agree that the Secured Creditors shall have no duties with respect to the Intellectual Property or Intellectual Property Licenses.  Without limiting the generality of this Section 6(g), Grantors acknowledge and agree that no Secured Creditor shall be under any obligation to take any steps necessary to preserve rights in the Collateral consisting of Intellectual Property or Intellectual Property Licenses against any other Person, but any member of the Secured Creditors may do so at its option from and after the occurrence and during the continuance of an Event of Default, and all reasonable out-of-pocket expenses incurred in connection therewith (including reasonable fees and expenses of attorneys and other professionals) shall be for the sole account of Borrower; and

(iv)          Concurrently with the delivery of quarterly and annual financial statements by Borrower in accordance with Sections 8.01(a) and (b) of the Credit Agreement, the Borrower shall give the Security Agent written notice of any and all (A) Patents and/or Trademarks for which an application for the registration of any such Patent or Trademark with the United States Patent and Trademark Office has been filed by any Grantor during the most recently ended fiscal quarter for which such financial statements are delivered, and/or (B) Copyrights for which an application for the registration of any such Copyrights with the United States Copyright Office has been filed by any Grantor during the most recently ended fiscal quarter for which such financial statements are delivered.  Promptly upon any such filing, each Grantor shall comply with Section 6(g)(i);

(h)           Investment Related Property.

(i)            If any Grantor shall acquire, obtain, receive or become entitled to receive any Pledged Interests after the Effective Date, it shall promptly (and in any event within 5 Business Days of receipt thereof, unless a longer period of time for delivery is permitted by Section 8.12 of the Credit Agreement with respect to such Pledged Interests) deliver to the Security Agent a duly executed Pledged Interests Addendum identifying such Pledged Interests;

(ii)           From and after the occurrence and during the continuance of an Event of Default, all sums of money and property paid or distributed in respect of the Investment Related Property which are received by any Grantor shall be held by the Grantors in trust for the benefit of the Security Agent segregated from such Grantor’s other property, and, upon the written request of the Security Agent, such Grantor shall deliver such money and property forthwith to the Security Agent in the exact form received;

(iii)          Each Grantor shall promptly deliver to the Security Agent a copy of each material notice or other communication received by it in respect of any Pledged Interests;

(iv)          No Grantor shall (A) make or consent to any amendment or other modification or waiver with respect to any Pledged Interests, Pledged Operating Agreement, or Pledged Partnership Agreement except as expressly permitted by the Credit Agreement, or (B) enter into any

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agreement or permit to exist any restriction with respect to any Pledged Interests that would violate any provision of the Credit Agreement or any other Credit Document;

(v)        Each Grantor agrees that it will cooperate with the Security Agent in obtaining all necessary approvals and making all necessary filings under federal, state or local law in connection with the Security Interest on the Investment Related Property or any sale or transfer thereof; and

(vi)       As to all limited liability company or partnership interests, issued under any Pledged Operating Agreement or Pledged Partnership Agreement, each Grantor hereby represents, warrants and covenants that the Pledged Interests issued pursuant to such agreement (A) are not and shall not be dealt in or traded on securities exchanges or in securities markets, (B) do not and will not constitute investment company securities, and (C) are not and will not be held by such Grantor in a securities account.  In addition, none of the Pledged Operating Agreements, the Pledged Partnership Agreements, or any other agreements governing any of the Pledged Interests issued under any Pledged Operating Agreement or Pledged Partnership Agreement, provide or shall provide that such Pledged Interests are securities governed by Article 8 of the Uniform Commercial Code as in effect in any relevant jurisdiction (unless such Pledged Interests are certificated and have pledged and delivered to the Security Agent in accordance with the terms hereof);

(i)            Real Property; Fixtures.  Subject to the terms of the Intercreditor Agreement and the Credit Agreement, each Grantor covenants and agrees that upon the acquisition of any Material Real Property, it will promptly notify the Security Agent of the acquisition of such Real Property and will, within 120 days of acquisition (or such longer time period as the Security Agent may agree, without any requirement for Lender consent) grant to the Security Agent, for the benefit of the Secured Creditors, a First Priority Mortgage on such Real Property and shall deliver such other documentation and opinions required to be delivered under Section 8.12 of the Credit Agreement and (at the reasonable request of Security Agent) environmental audits, and such Grantor shall pay all recording costs, intangible taxes and other fees and costs (including reasonable attorneys’ fees and expenses) incurred in connection therewith.  Each Grantor acknowledges and agrees that, to the extent permitted by applicable law, all of the Collateral shall remain personal property regardless of the manner of its attachment or affixation to real property;

(j)            Transfers and Other Liens.  Each Grantor hereby covenants and agrees that except for the Security Interest created by this Agreement, no Grantor shall (i) sell, assign (by operation of law or otherwise) or otherwise dispose of, or grant any option with respect to, any of the Collateral, except for dispositions not prohibited by the Credit Documents, or (ii) create or permit to exist any Lien upon or with respect to any of the Collateral of any of Grantors, except for Permitted Liens.  The inclusion of Proceeds in the Collateral shall not be deemed to constitute the Security Agent’s or the Secured Creditors’ consent to any sale or other disposition of any of the Collateral except as expressly permitted in this Agreement or the other Credit Documents.  Such Grantor shall take all commercially reasonable steps to defend the Collateral against all persons at any time claiming any interest therein, except to the extent such interest is permitted under the Credit Agreement;

(k)           Other Actions as to Any and All Collateral.

(i)            Each Grantor shall notify the Security Agent in writing of the acquisition of certain Collateral as follows:

(A)          promptly (and in any event within 30 days of acquiring or otherwise obtaining such Collateral (or such longer time period as the Security Agent may agree, without any requirement for Lender consent)) otherwise obtaining any Collateral after the date hereof consisting

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of Investment Related Property, Chattel Paper (electronic, tangible or otherwise) with a value or face amount in excess of $750,000, individually, or $1,500,000, in the aggregate, or documents (as defined in Article 9 of the Code), promissory notes (as defined in the Code) or instruments (as defined in the Code) with a value or face amount in excess of $750,000, individually, or $1,500,000, in the aggregate;

(B)          promptly and in any event within 30 days (or such longer time period as the Security Agent may agree, without any requirement for Lender consent) of any amount payable under or in connection with any of the Collateral being or becoming evidenced by any Chattel Paper, documents, promissory notes, or instruments with a value or face amount in excess of $750,000, individually, or $1,500,000, in the aggregate;

(C)          except as otherwise provided in Section 6(g)(iv) or Section 6(g)(v), within 30 days (or such longer time period as the Security Agent may agree, without any requirement for Lender consent) of acquiring or otherwise obtaining any ownership of Collateral after the date hereof consisting of registered Trademarks, Patents or Copyrights; and

(D)          within 30 days (or such longer time period as the Security Agent may agree, without any requirement for Lender consent) of acquiring or otherwise obtaining any Collateral after the date hereof consisting of Intellectual Property Licenses material to the business of the Grantors, taken as a whole, pursuant to which any Grantor receives a license to a third party’s Intellectual Property, and

(ii)        Subject to the terms of the Intercreditor Agreement, in the case of each of the foregoing, each Grantor shall promptly upon the written request of the Security Agent (and in no event later than 10 Business Days after receiving such request (or such longer time period as the Security Agent may agree, without any requirement for Lender consent)), execute such other documents, or if applicable, deliver such Chattel Paper, other documents or certificates evidencing any Investment Related Property and do such other acts or things reasonably deemed necessary by the Security Agent to protect the Security Agent’s Security Interest therein;

(l)            ABL Priority Collateral.  Notwithstanding anything contained in this Section 6, or elsewhere in this Agreement or any other Security Document, to the extent that the provisions of this Agreement (or any other Security Document) require the delivery of, or granting of control over, or giving notice with respect to any ABL Priority Collateral to the Security Agent, then delivery of such Collateral (or control or notice with respect thereto) shall instead be made to the ABL Agent (as defined in the Intercreditor Agreement), to be held in accordance with ABL Credit Agreement or any collateral and/or security documents entered into in connection therewith and the Intercreditor Agreement, and any Grantor’s obligations hereunder with respect to such delivery, control or notice shall be deemed satisfied.  Furthermore, at all times prior to the Discharge of ABL Obligations (as defined in the Intercreditor Agreement) or any Refinancing Indebtedness in connection therewith, the Security Agent is authorized by the parties hereto to effect transfers of such Collateral at any time in its possession (and any “control” or similar agreements with respect to such Collateral) to the ABL Agent.

(m)          Certification of Limited Liability Company and Limited Partnership Interests. Each Grantor acknowledges and agrees that, to the extent any interest in any limited liability company or limited partnership controlled by any Grantor and pledged under Section 2 is a “security” within the meaning of Article 8 of the Code and is governed by Article 8 of the Code, such interest shall be represented by a certificate. Each Grantor further acknowledges and agrees that with respect to any interest in any limited liability company or limited partnership controlled on or after the date hereof by such Grantor and pledged hereunder that is not a “security” within the meaning of Article 8 of the Code, such Grantor shall at no time elect to treat any such interest as a “security” within the meaning of Article 8 of the Code, nor shall such interest be represented by a certificate, unless such election and such interest

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is thereafter represented by a certificate that is promptly delivered to the Security Agent pursuant to the terms hereof.

7.             Relation to Other Security Documents.  The provisions of this Agreement shall be read and construed with the other Credit Documents referred to below in the manner so indicated.

(a)           Credit Agreement. In the event of any conflict between any provision in this Agreement (other than Section 2 hereof) and a provision in the Credit Agreement, such provision of the Credit Agreement shall control.

(b)           Patent, Trademark, Copyright Security Agreements.  The provisions of the Copyright Security Agreements, Trademark Security Agreements, and Patent Security Agreements are supplemental to the provisions of this Agreement, and nothing contained in the Copyright Security Agreements, Trademark Security Agreements, or the Patent Security Agreements shall limit any of the rights or remedies of Security Agent hereunder.  In the event of any conflict between any provision in this Agreement and a provision in a Copyright Security Agreement, Trademark Security Agreement or Patent Security Agreement, such provision of this Agreement shall control.

8.             Further Assurances.

(a)           Each Grantor agrees that from time to time, at its own expense, such Grantor will promptly execute and deliver all further instruments and documents, and take all further action, that the Security Agent may reasonably request, in order to perfect and protect the Security Interest granted or purported to be granted hereby or to enable the Security Agent to exercise and enforce its rights and remedies hereunder with respect to any of the Collateral.

(b)           Each Grantor authorizes the filing by the Security Agent financing or continuation statements, or amendments thereto, and such Grantor will execute and deliver to the Security Agent such other instruments or notices, as the Security Agent may reasonably request, in order to perfect and preserve the Security Interest granted or purported to be granted hereby.

(c)           Each Grantor authorizes the Security Agent at any time and from time to time to file, transmit, or communicate, as applicable, financing statements and amendments in any jurisdiction and in any filing office (i) describing the Collateral as “all personal property of debtor” or “all assets of debtor” or words of similar effect, in each case, at the option of the Security Agent, (ii) indicating such Collateral includes such assets or property “whether now owned or hereafter acquired”, (iii) describing the Collateral as being of equal or lesser scope or with greater detail, or (iv) that contain any information required by part 5 of Article 9 of the Code for the sufficiency or filing office acceptance.  Each Grantor also hereby ratifies any and all financing statements or amendments previously filed by or on behalf of the Security Agent in any jurisdiction.

(d)           Each Grantor acknowledges that it is not authorized to file any financing statement or amendment or termination statement with respect to any financing statement filed in connection with this Agreement without the prior written consent of the Security Agent, subject to such Grantor’s rights under Section 9-509(d)(2) of the Code.

9.             Security Agent’s Right to Perform Contracts, Exercise Rights, etc.  Upon the occurrence and during the continuance of an Event of Default, the Security Agent (or its designee) (a) may proceed to perform any and all of the obligations of any Grantor contained in any contract, lease, or other agreement and exercise any and all rights of any Grantor therein contained as fully as such Grantor itself could, (b) shall have the right to use any Grantor’s rights under Intellectual Property Licenses in connection with the enforcement of the Security Agent’s rights hereunder, including the right to prepare for sale and sell any

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and all Inventory and Equipment now or hereafter owned by any Grantor and now or hereafter covered by such licenses, and (c) shall have the right to request that any Stock that is pledged hereunder be registered in the name of the Security Agent or any of its nominees and each Grantor agrees to comply with any such request.

10.          Agent Appointed Attorney-in-Fact.  Each Grantor hereby irrevocably appoints the Security Agent its attorney-in-fact, with full authority in the place and stead of such Grantor and in the name of such Grantor or otherwise, at such time as an Event of Default has occurred and is continuing under the Credit Agreement, to take any action and to execute any instrument which the Security Agent may reasonably deem necessary or advisable to accomplish the purposes of this Agreement, including:

(a)           to ask, demand, collect, sue for, recover, compromise, receive and give acquittance and receipts for moneys due and to become due under or in connection with the Accounts or any other Collateral of such Grantor;

(b)           to receive and open all mail addressed to such Grantor and to notify postal authorities to change the address for the delivery of mail to such Grantor to that of the Security Agent (other than with respect to mail from legal counsel for any Credit Party);

(c)           to receive, indorse, and collect any drafts or other instruments, documents, Negotiable Collateral or Chattel Paper;

(d)           to file any claims or take any action or institute any proceedings which the Security Agent may deem necessary or desirable for the collection of any of the Collateral of such Grantor or otherwise to enforce the rights of the Security Agent with respect to any of the Collateral;

(e)           to repair, alter, or supply goods, if any, necessary to fulfill in whole or in part the purchase order of any Person obligated to such Grantor in respect of any Account of such Grantor;

(f)            to use any Intellectual Property or Intellectual Property Licenses of such Grantor, including but not limited to any labels, Patents, Trademarks, trade names, URLs, Domain Names, industrial designs, Copyrights, advertising matter or other industrial or intellectual property rights, in preparing for sale, advertising for sale and selling Inventory and other Collateral and to collect any amounts due under Accounts, contracts or Negotiable Collateral of such Grantor;

(g)           the Security Agent, on behalf of the Secured Creditors, shall have the right, but shall not be obligated, to bring suit in its own name to enforce the Intellectual Property, including Intellectual Property Licenses and if the Security Agent shall commence any such suit, the appropriate Grantor shall, at the request of the Security Agent, do any and all lawful acts and execute any and all proper documents reasonably required by the Security Agent in aid of such enforcement; and

(h)           to sign any document which may be required by the United States Patent and Trademark Office, the United States Copyright Office or similar registrar in order to effect an absolute assignment of all right, title and interest in each registered Intellectual Property right and each application for such registration, and record the same.

To the extent permitted by law, each Grantor hereby ratifies all that such attorney-in-fact shall lawfully do or cause to be done by virtue hereof.  This power of attorney is coupled with an interest and shall be irrevocable until this Agreement is terminated.

11.          Security Agent May Perform.  If any of the Grantors fails to perform any agreement contained herein, the Security Agent may itself perform, or cause performance of, such agreement, and

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the reasonable expenses of the Security Agent incurred in connection therewith shall be payable, jointly and severally, by Grantors.

12.Security Agent’s Duties; Etc.  The powers conferred on the Security Agent hereunder are solely to protect the Security Agent’s interest in the Collateral, for the benefit of the Secured Creditors, and shall not impose any duty upon the Security Agent to exercise any such powers.  Except for the safe custody of any Collateral in its actual possession and the accounting for moneys actually received by it hereunder, the Security Agent shall have no duty as to any Collateral or as to the taking of any necessary steps to preserve rights against prior parties or any other rights pertaining to any Collateral.  The Security Agent shall be deemed to have exercised reasonable care in the custody and preservation of any Collateral in its actual possession if such Collateral is accorded treatment substantially similar to that which the Security Agent accords its own property.  Neither the Security Agent, nor any other Secured Creditor nor any of their respective officers, directors, partners, employees, agents, attorneys and other advisors, attorneys-in-fact or affiliates shall be liable for failure to demand, collect or realize upon any of the Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of any Grantor or any other person or to take any other action whatsoever with regard to the Collateral or any part thereof.  The Security Agent and the Secured Creditors shall be accountable only for amounts that they actually receive as a result of the exercise of such powers, and neither they nor any of their officers, directors, partners, employees, agents, attorneys and other advisors, attorneys-in-fact or affiliates shall be responsible to any Grantor for any act or failure to act hereunder, except to the extent that any such act or failure to act is found by a final and nonappealable decision of a court of competent jurisdiction to have resulted primarily from their own gross negligence or willful misconduct in breach of a duty owed to such Grantor.  Each Grantor acknowledges that the rights and responsibilities of the Security Agent under this Agreement with respect to any action taken by the Security Agent or the exercise or non-exercise by the Security Agent of any option, voting right, request, judgment or other right or remedy provided for herein or resulting or arising out of this Agreement shall, as between the Security Agent and the other Secured Creditors, be governed by the Credit Agreement and by such other agreements with respect thereto as may exist from time to time among them, but, as between the Security Agent and the Grantors, the Security Agent shall be conclusively presumed to be acting as agent for the Secured Creditors with full and valid authority so to act or refrain from acting, and no Grantor shall be under any obligation to make any inquiry respecting such authority.

13.Collection of Accounts, General Intangibles and Negotiable Collateral.  Subject to the terms of the Intercreditor Agreement, at any time upon the occurrence and during the continuation of an Event of Default, the Security Agent or the Security Agent’s designee may (a) notify Account Debtors of any Grantor that the Accounts, General Intangibles, Chattel Paper or Negotiable Collateral have been assigned to the Security Agent, for the benefit of the Secured Creditors, or that the Security Agent has a security interest therein, and (b) collect the Accounts, General Intangibles and Negotiable Collateral directly, and any collection costs and expenses shall constitute part of such Grantor’s Secured Obligations under the Credit Documents.

14.Disposition of Pledged Interests by Security Agent.  None of the Pledged Interests existing as of the date of this Agreement are, and none of the Pledged Interests hereafter acquired on the date of acquisition thereof will be, registered or qualified under the various federal or state securities laws of the United States and disposition thereof after an Event of Default may be restricted to one or more private (instead of public) sales in view of the lack of such registration.  Each Grantor understands that in connection with such disposition, the Security Agent may approach only a restricted number of potential purchasers and further understands that a sale under such circumstances may yield a lower price for the Pledged Interests than if the Pledged Interests were registered and qualified pursuant to federal and state securities laws and sold on the open market.  Each Grantor, therefore, agrees that:  (a) if the Security Agent shall, pursuant to the terms of this Agreement, sell or cause the Pledged Interests or any portion

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thereof to be sold at a private sale, the Security Agent shall have the right to rely upon the advice and opinion of any nationally recognized brokerage or investment firm (but shall not be obligated to seek such advice and the failure to do so shall not be considered in determining the commercial reasonableness of such action) as to the best manner in which to offer the Pledged Interest or any portion thereof for sale and as to the best price reasonably obtainable at the private sale thereof; and (b) such reliance shall be conclusive evidence that the Security Agent has handled the disposition in a commercially reasonable manner.

15.Voting Rights and Other Rights in Respect of Pledged Interests.

(a)Subject to the terms of the Intercreditor Agreement, upon the occurrence and during the continuation of an Event of Default, (i) the Security Agent may, at its option, and with 2 Business Days prior notice to any Grantor (although no such notice shall be required in an Event of Default under Section 10.01(e) of the Credit Agreement exists and is continuing), and in addition to all rights and remedies available to the Security Agent hereunder, under any other agreement, at law, in equity, or otherwise, exercise all voting rights, and all other ownership or consensual rights in respect of the Pledged Interests owned by such Grantor, but under no circumstances is the Security Agent obligated by the terms of this Agreement to exercise such rights, and (ii) if the Security Agent duly exercises its right to vote any of such Pledged Interests, each Grantor hereby appoints the Security Agent, such Grantor’s true and lawful attorney-in-fact and IRREVOCABLE PROXY to vote such Pledged Interests in any manner the Security Agent deems advisable for or against all matters submitted or which may be submitted to a vote of shareholders, partners or members, as the case may be.  The power-of-attorney and proxy granted hereby is coupled with an interest and shall be irrevocable.

(b)Subject to the terms of the Intercreditor Agreement, for so long as any Grantor shall have the right to vote the Pledged Interests owned by it, such Grantor covenants and agrees that it will not, without the prior written consent of the Security Agent, vote or take any consensual action with respect to such Pledged Interests which would materially adversely affect the rights of the Security Agent or the other Secured Creditors or materially adversely affect the value of the Pledged Interests.

16.Remedies.  Subject to the terms of the Intercreditor Agreement, upon the occurrence and during the continuance of an Event of Default:

(a)The Security Agent may, and, at the instruction of the Required Lenders, shall exercise in respect of the Collateral, in addition to other rights and remedies provided for herein, in the other Credit Documents, or otherwise available to it, all the rights and remedies of a secured party on default under the Code or any other applicable law.  Without limiting the generality of the foregoing, each Grantor expressly agrees that, in any such event, the Security Agent without demand of performance or other demand, advertisement or notice of any kind (except a notice specified below of time and place of public or private sale) to or upon any Grantor or any other Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the Code or any other applicable law), may take immediate possession of all or any portion of the Collateral and (i) require Grantors to, and each Grantor hereby agrees that it will at its own expense and upon request of the Security Agent forthwith, assemble all or part of the Collateral as directed by the Security Agent and make it available to the Security Agent at one or more locations where such Grantor regularly maintains Inventory, and (ii) without notice except as specified below, sell the Collateral or any part thereof in one or more parcels at public or private sale, at any of the Security Agent’s offices or elsewhere, for cash, on credit, and/or upon such other terms as the Security Agent may deem commercially reasonable.  Each Grantor agrees that, to the extent notice of sale shall be required by law, at least 10 days’ notice to any of Grantors of the time and place of any public sale or the time after which any private sale is to be made shall constitute reasonable notification and specifically such notice shall constitute a reasonable “authenticated notification of disposition” within the meaning of Section 9-611 of the Code.  The Security

21

Agent shall not be obligated to make any sale of Collateral regardless of notice of sale having been given.  The Security Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned.

(b)The Security Agent is hereby granted a license or other right to use, without liability for royalties or any other charge, each Grantor’s labels, Patents, Copyrights, rights of use of any name, trade secrets, trade names, Trademarks, service marks and advertising matter, URLs, domain names, industrial designs, other industrial or intellectual property or any property of a similar nature, whether owned by any of Grantors or with respect to which any of Grantors have rights under license, sublicense, or other agreements, in each case to the extent of such Grantor’s rights therein and to the extent permitted by applicable licenses or other agreements related thereto, and such Grantor will not be in default under the applicable license, sublicense or other agreement as a result of such use by the Security Agent, as it pertains to the Collateral, in preparing for sale, advertising for sale and selling any Collateral, and each Grantor’s rights under all licenses and all franchise agreements shall inure to the benefit of the Security Agent for such purposes to the extent permitted thereunder.  With respect to Trademarks owned by a Grantor and licensed under this Section 16(b), the applicable Grantor shall have such rights of quality control and inspection which are reasonably necessary under applicable law to maintain the validity and enforceability of such Trademarks.

(c)Security Agent may, by written notice to the relevant Grantor, take any or all of the following actions: (i) declare the entire right, title and interest of such Grantor in and to the Intellectual Property rights, vested in Security Agent for the benefit of the Secured Creditors, and the Security Agent shall be entitled to exercise the power of attorney referred to in Section 10(h) to execute, cause to be acknowledged and notarized and record said absolute assignment with the applicable agency or registrar; (ii) take and use or sell the Intellectual Property rights; (iii) take and use or sell the goodwill of such Grantor’s business symbolized by the Trademarks and the right to carry on the business and use the assets of such Grantor in connection with which the Trademarks or Domain Names have been used; and (iv) direct such Grantor to refrain, in which event such Grantor shall refrain, from using the Intellectual Property rights in any manner whatsoever, directly or indirectly, and such Grantor shall execute such further documents that Security Agent may reasonably request to further confirm this and to transfer ownership of the Intellectual Property rights and registrations and any pending applications in the United States Copyright Office, United States Patent and Trademark Office, equivalent office in a state of the United States or applicable Domain Name registrar to Security Agent.

(d)The Security Agent may, in addition to other rights and remedies provided for herein, in the other Credit Documents, or otherwise available to it under applicable law and without the requirement of notice to or upon any of Grantors or any other Person (which notice is hereby expressly waived to the maximum extent permitted by the Code or any other applicable law), (i) with respect to any of Grantors’ Deposit Accounts in which the Security Agent’s Liens are perfected by control under Section 9-104 of the Code, instruct the bank maintaining such Deposit Account for the applicable Grantor to pay the balance of such Deposit Account to or for the benefit of the Security Agent, and (ii) with respect to any of Grantors’ Securities Accounts in which the Security Agent’s Liens are perfected by control under Section 9-106 of the Code, instruct the securities intermediary maintaining such Securities Account for the applicable Grantor to (A) transfer any cash in such Securities Account to or for the benefit of the Security Agent, or (B)  liquidate any financial assets in such Securities Account that are customarily sold on a recognized market and transfer the cash proceeds thereof to or for the benefit of the Security Agent.

(e)Subject to the terms of the Intercreditor Agreement any cash held by the Security Agent as Collateral and all cash proceeds received by the Security Agent in respect of any sale of, collection from, or other realization upon all or any part of the Collateral shall be applied against the Secured Obligations in the order set forth in the Credit Agreement.  In the event the proceeds of

22

Collateral are insufficient to satisfy all of the Secured Obligations in full, each Grantor shall remain jointly and severally liable for any such deficiency.

(f)Each Grantor hereby acknowledges that the Secured Obligations arise out of commercial transactions, and agrees that if an Event of Default shall occur and be continuing the Security Agent shall have the right to an immediate writ of possession without notice of a hearing.  The Security Agent shall have the right to the appointment of a receiver for the properties and assets of each of Grantors, and each Grantor hereby consents to such rights and such appointment and hereby waives any objection such Grantor may have thereto or the right to have a bond or other security posted by the Security Agent.

17.Remedies Cumulative.  Each right, power, and remedy of the Security Agent and the Secured Creditors as provided for in this Agreement or in the other Credit Documents or Secured Hedging Agreement or now or hereafter existing at law or in equity or by statute or otherwise shall be cumulative and concurrent and shall be in addition to every other right, power, or remedy provided for in this Agreement or in the other Credit Documents and the Secured Hedging Agreement or now or hereafter existing at law or in equity or by statute or otherwise, and the exercise or beginning of the exercise by the Security Agent or any Secured Creditor, of any one or more of such rights, powers, or remedies shall not preclude the simultaneous or later exercise by the Security Agent or such Secured Creditor of any or all such other rights, powers, or remedies.

18.Marshaling. The Security Agent shall not be required to marshal any present or future collateral security (including but not limited to the Collateral) for, or other assurances of payment of, the Secured Obligations or any of them or to resort to such collateral security or other assurances of payment in any particular order, and all of its rights and remedies hereunder and in respect of such collateral security and other assurances of payment shall be cumulative and in addition to all other rights and remedies, however existing or arising.  To the extent that it lawfully may, each Grantor hereby agrees that it will not invoke any law relating to the marshaling of collateral which might cause delay in or impede the enforcement of the Security Agent’s rights and remedies under this Agreement or under any other instrument creating or evidencing any of the Secured Obligations or under which any of the Secured Obligations is outstanding or by which any of the Secured Obligations is secured or payment thereof is otherwise assured, and, to the extent that it lawfully may, each Grantor hereby irrevocably waives the benefits of all such laws.

19.Indemnity and Expenses.

(a)Each Grantor, jointly and severally, agrees to indemnify the Security Agent and the other Secured Creditors from and against all claims, lawsuits and liabilities (including reasonable attorneys’ fees) growing out of or resulting from this Agreement (including enforcement of this Agreement) or any other Credit Document to which such Grantor is a party (other than, to the extent excluded from Section 12.01 of the Credit Agreement, disputes solely between the Lenders), except claims, losses or liabilities resulting from the gross negligence or willful misconduct of the party seeking indemnification as determined by a final non-appealable order of a court of competent jurisdiction.  This provision shall survive the termination of this Agreement and the Credit Agreement and the repayment of the Secured Obligations.

(b)Grantors, jointly and severally, shall, upon demand, pay to the Security Agent all reasonable out-of-pocket costs, expenses or disbursements (including reasonable attorneys’ fees and expenses) which the Security Agent may incur in connection with (i) the administration of this Agreement, (ii) the custody, preservation, use or operation of, or, upon an Event of Default, the sale of, collection from, or other realization upon, any of the Collateral in accordance with this Agreement and the

23

other Credit Documents, (iii) the exercise or enforcement of any of the rights of the Security Agent hereunder or (iv) the failure by any of the Grantors to perform or observe any of the provisions hereof.

20.Merger, Amendments; Etc.  THIS AGREEMENT, TOGETHER WITH THE OTHER CREDIT DOCUMENTS, REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.  THERE ARE NO UNWRITTEN AGREEMENTS BETWEEN THE PARTIES.  No waiver of any provision of this Agreement, and no consent to any departure by any of Grantors herefrom, shall in any event be effective unless the same shall be in writing and signed by the Security Agent, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given.  Except as expressly set forth herein or in the Credit Agreement, no amendment of any provision of this Agreement shall be effective unless the same shall be in writing and signed by the Security Agent and each of Grantors to which such amendment applies.

21.Addresses for Notices.  All notices and other communications provided for hereunder shall be given in the form and manner and delivered to the Security Agent at its address specified in the Credit Agreement, and to any of the Grantors at their respective addresses specified in the Credit Agreement or Guaranty, as applicable, or, as to any party, at such other address as shall be designated by such party in a written notice to the other party.

22.Continuing Security Interest: Assignments under Credit Agreement.  This Agreement shall create a continuing security interest in the Collateral and shall (a) remain in full force and effect until the Obligations have been paid in full in cash in accordance with the provisions of the Credit Agreement and the Commitments have expired or have been terminated, (b) be binding upon each of the Grantors, and their respective successors and assigns, and (c) inure to the benefit of, and be enforceable by, the Security Agent, and its successors, transferees and assigns.  Without limiting the generality of the foregoing clause (c), any Lender may, in accordance with the provisions of the Credit Agreement, assign or otherwise transfer all or any portion of its rights and obligations under the Credit Agreement to any other Person, and such other Person shall thereupon become vested with all the benefits in respect thereof granted to such the Lender herein or otherwise.  Upon payment in full in cash of the Obligations in accordance with the provisions of the Credit Agreement and the expiration or termination of the Commitments, the Security Interest granted hereby shall terminate and all rights to the Collateral shall revert to Grantors or any other Person entitled thereto, and the Security Agent shall execute and deliver to the Grantors, at the Grantors’ expense, all termination statements, releases and other documents (without recourse and without representation or warranty) which the Grantors shall reasonably, in each case, request that are necessary to evidence such termination and authorize the filing of any such termination, release or other document executed and delivered by the Security Agent.  No transfer or renewal, extension, assignment, or termination of this Agreement or of the Credit Agreement, any other Credit Document, or any other instrument or document executed and delivered by any Grantor to the Security Agent nor other loans made by any Lender to the Borrower, nor the taking of further security, nor the retaking or re-delivery of the Collateral to the Grantors, or any of them, by the Security Agent, nor any other act of the Secured Creditors, or any of them, shall release any of the Grantors from any obligation, except a release or discharge executed in writing by the Security Agent in accordance with the provisions of the Credit Agreement.  The Security Agent shall not by any act, delay, omission or otherwise, be deemed to have waived any of its rights or remedies hereunder, unless such waiver is in writing and signed by the Security Agent and then only to the extent therein set forth.  A waiver by the Security Agent of any right or remedy on any occasion shall not be construed as a bar to the exercise of any such right or remedy which the Security Agent would otherwise have had on any other occasion.  Upon the consummation of any sale or other disposition of Collateral to any third party pursuant to a transaction permitted by the Credit Agreement or the other Credit Documents, the Security Interest granted hereby

24

with respect to such Collateral shall terminate (but shall attach to the Proceeds or products thereof) and the Security Agent shall, at the reasonable request and at the expense of the applicable Grantor, provide evidence (without recourse and without any representation or warranty) of such termination if such Grantor certifies to the Security Agent that such sale or disposition is permitted under Section 9.02 of the Credit Agreement or the other Credit Documents or is otherwise released at the discretion of the Required Lenders (and the Security Agent may rely conclusively on any such certificate, without further inquiry).

23.Governing Law.

(a)THE VALIDITY OF THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS (UNLESS EXPRESSLY PROVIDED TO THE CONTRARY IN ANOTHER CREDIT DOCUMENT IN RESPECT OF SUCH OTHER CREDIT DOCUMENT), THE CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT HEREOF AND THEREOF, AND THE RIGHTS OF THE PARTIES HERETO AND THERETO WITH RESPECT TO ALL MATTERS ARISING HEREUNDER OR THEREUNDER OR RELATED HERETO (WHETHER IN CONTRACT, TORT OR OTHERWISE) SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO CHOICE OF LAW PRINCIPLES THAT REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION).

(b)THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS SHALL BE TRIED AND LITIGATED ONLY IN THE STATE OF NEW YORK AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, FEDERAL COURTS LOCATED IN THE COUNTY OF NEW YORK, BOROUGH OF MANHATTAN AND STATE OF NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH CREDIT PARTY HERETO HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS (INCLUDING ANY APPELLATE COURTS THEREOF); PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY GRANTOR, ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE SECURITY AGENT’S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SECURITY AGENT ELECTS TO BRING SUCH ACTION OR WHERE SUCH GRANTOR, COLLATERAL OR OTHER PROPERTY MAY BE FOUND.  THE SECURITY AGENT AND EACH GRANTOR WAIVE, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 23(b).

(c)TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SECURITY AGENT AND EACH GRANTOR HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS.  THE SECURITY AGENT AND EACH GRANTOR REPRESENT THAT EACH HAS REVIEWED THIS WAIVER AND EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.  IN THE EVENT OF LITIGATION, A COPY OF THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.

25

(d)EACH GRANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN THE COUNTY OF NEW YORK, BOROUGH OF MANHATTAN AND THE STATE OF NEW YORK, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT.  NOTHING IN THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT SHALL AFFECT ANY RIGHT THAT THE SECURITY AGENT MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT AGAINST ANY GRANTOR OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.

24.New Subsidiaries.  Pursuant to Section 8.12 of the Credit Agreement, certain new direct or indirect Restricted Subsidiaries (whether by acquisition, creation or “designation”) of any Grantor are required to enter into this Agreement by executing and delivering in favor of the Security Agent a supplement to this Agreement in the form of Annex 1 attached hereto.  Upon the execution and delivery of Annex 1 by each such new Subsidiary, such Subsidiary shall become a Grantor hereunder with the same force and effect as if originally named as a Grantor herein.  The execution and delivery of any instrument adding an additional Grantor as a party to this Agreement shall not require the consent of any Grantor hereunder.  The rights and obligations of each Grantor hereunder shall remain in full force and effect notwithstanding the addition of any new Grantor hereunder.

25.Security Agent.  Each reference herein to any right granted to, benefit conferred upon or power exercisable by the “Security Agent” shall be a reference to the Security Agent, for the benefit of the Secured Creditors.

26.Miscellaneous.

(a)This Agreement is a Credit Document.  This Agreement may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, when taken together, shall constitute but one and the same Agreement.  Delivery of an executed counterpart of this Agreement by telefacsimile or other electronic method of transmission (i.e. “PDF”) shall be equally as effective as delivery of an original executed counterpart of this Agreement.  Any party delivering an executed counterpart of this Agreement by telefacsimile or other electronic method of transmission also shall deliver an original executed counterpart of this Agreement but the failure to deliver an original executed counterpart shall not affect the validity, enforceability, and binding effect of this Agreement.  The foregoing shall apply to each other Credit Document mutatis mutandis.

(b)Any provision of this Agreement which is prohibited or unenforceable shall be ineffective only to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof in that jurisdiction or affecting the validity or enforceability of such provision in any other jurisdiction.  Each provision of this Agreement shall be severable from every other provision of this Agreement for the purpose of determining the legal enforceability of any specific provision.

(c)Headings used in this Agreement are for convenience only and shall not be used in connection with the interpretation of any provision hereof.  Unless the contrary is compelled by the context, everything contained in each Section applies equally to this entire Agreement.

(d)Neither this Agreement nor any uncertainty or ambiguity herein shall be construed against any Secured Creditor or any Grantor, whether under any rule of construction or otherwise.  This Agreement has been reviewed by all parties and shall be construed and interpreted

26

according to the ordinary meaning of the words used so as to accomplish fairly the purposes and intentions of all parties hereto.

(e)The pronouns used herein shall include, when appropriate, either gender and both singular and plural, and the grammatical construction of sentences shall conform thereto.

(f)Unless the context of this Agreement or any other Credit Document clearly requires otherwise, references to the plural include the singular, references to the singular include the plural, the terms “includes” and “including” are not limiting, and the term “or” has, except where otherwise indicated, the inclusive meaning represented by the phrase “and/or.”  The words “hereof,” “herein,” “hereby,” “hereunder,” and similar terms in this Agreement or any other Credit Document refer to this Agreement or such other Credit Document, as the case may be, as a whole and not to any particular provision of this Agreement or such other Credit Document, as the case may be.  Section, subsection, clause, schedule, and exhibit references herein are to this Agreement unless otherwise specified.  Any reference in this Agreement or in any other Credit Document to any agreement, instrument, or document shall include all alterations, amendments, changes, extensions, modifications, renewals, replacements, substitutions, joinders, and supplements, thereto and thereof, as applicable (subject to any restrictions on such alterations, amendments, changes, extensions, modifications, renewals, replacements, substitutions, joinders, and supplements set forth herein).  The words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, Stock, securities, accounts, leasehold interests and contract rights.  Any reference herein or in any other Credit Document to the satisfaction, repayment or payment in full of the Obligations shall mean the repayment in full in cash (or cash collateralization in accordance with the terms of the Credit Agreement) of all Obligations other than unasserted contingent indemnification and expense reimbursement Obligations.  Any reference herein to any Person shall be construed to include such Person’s successors and assigns.  Any requirement of a writing contained herein or in any other Credit Document shall be satisfied by the transmission of a Record.

(g)All of the annexes, schedules and exhibits attached to this Agreement shall be deemed incorporated herein by reference.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]

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IN WITNESS WHEREOF, the undersigned parties hereto have executed this Security Agreement by and through their duly authorized officers, as of the day and year first above written.

GRANTORS:	ADVANCEPIERRE FOODS HOLDINGS, INC.,
	a Delaware corporation
	By:
		Name:
		Title:
	PIERRE HOLDCO, INC.,
	a Delaware corporation
	By:
		Name:
		Title:
	ADVANCEPIERRE FOODS, INC.,
	a Delaware corporation
	By:
		Name:
		Title:
	CHEFS PANTRY, LLC,
	an Ohio limited liability company
	By:
		Name:
		Title:
	CLOVERVALE FARMS, LLC,
	an Ohio limited liability company
	By:
		Name:
		Title:

[SIGNATURE PAGE] APF — Security Agt

ADVANCE FOOD COMPANY, LLC,
an Oklahoma limited liability company
By:
	Name:
	Title:
APF LEGACY SUBS, LLC,
an Ohio limited liability company
By:
	Name:
	Title:
BARBER FOODS, LLC,
a Maine limited liability company
By:
	Name:
	Title:

[SIGNATURE PAGE] APF — Security Agt

SECURITY AGENT:	MORGAN STANLEY SENIOR FUNDING, INC.,
	as Security Agent
	By:
		Name:
		Title:

[SIGNATURE PAGE] APF — Security Agt

SCHEDULE 1

COMMERCIAL TORT CLAIMS

SCHEDULE 2

COPYRIGHTS

A.Registered Copyrights

Owner Country Title of Work Registration No. Registration
Date

B.  Material Unregistered Copyrights

SCHEDULE 3

MATERIAL INTELLECTUAL PROPERTY LICENSES

A.  Software License Agreements

Name of Agreement

1.              [    ]

2.              [    ]

B.    Trademark License Agreements

Name of Agreement

1.             [    ]

2.             [    ]

SCHEDULE 4

PATENTS

Owner	Patent Titles	Country	Patent No.	Applic. No.	Filing Date	Issue Date
[    ]	[    ]	[    ]	[    ]	[    ]	[    ]	[    ]
[    ]	[    ]	[    ]	[    ]	[    ]	[    ]	[    ]

SCHEDULE 5

PLEDGED COMPANIES

Name of Pledgor	Name of Pledged Company	Number of Shares/Units	Class of Interests	Percentage of Class Owned	Certificate Nos.
[    ]	[    ]	[    ]	[    ]	[    ]	[    ]
[    ]	[    ]	[    ]	[    ]	[    ]	[    ]

SCHEDULE 6

TRADEMARKS

A.  Owned Trademarks

Mark Name	Country	Status	Class	Serial No.	Filing Date	Reg. No.	Reg. Date	Owner Name
[   ]	[   ]	[   ]	[   ]	[   ]	[   ]	[   ]	[   ]	[   ]
[   ]	[   ]	[   ]	[   ]	[   ]	[   ]	[   ]	[   ]	[   ]

B.  Trade Names

Trade Names

[   ]

[   ]

C.  Domain Names

Domain Names

[   ]

[   ]

SCHEDULE 7

OWNED REAL PROPERTY

Grantor	Property	Property Address	County
[    ]	[    ]	[    ]	[    ]
[    ]	[    ]	[    ]	[    ]

SCHEDULE 8

LIST OF UNIFORM COMMERCIAL CODE FILING JURISDICTIONS

Grantor	Jurisdiction
[  ]	[  ]
[  ]	[  ]

ANNEX 1 TO SECURITY AGREEMENT
FORM OF SUPPLEMENT

Supplement No. [    ] (this “Supplement”) dated as of [          ], 20[  ], to the Security Agreement dated as of June 2, 2016 (as amended, restated, supplemented or otherwise modified from time to time, the “Security Agreement”), by each of the parties listed on the signature pages thereto and those additional entities that thereafter become parties thereto (collectively, jointly and severally, “Grantors” and each individually “Grantor”) and MORGAN STANLEY SENIOR FUNDING, INC., in its capacity as Security Agent for the benefit of the Secured Creditors (together with any successor security agent, the “Security Agent”).

W I T N E S S E T H:

WHEREAS, pursuant to that certain Term Loan Credit Agreement dated as of even date herewith (as amended, restated, supplemented, modified, renewed or extended from time to time, the “Credit Agreement”) among AdvancePierre Foods Holdings, Inc., a Delaware corporation, Pierre Holdco, Inc., a Delaware corporation, AdvancePierre Foods, Inc., a Delaware corporation, as borrower (“Borrower”), the lenders party thereto (the “Lenders”), the Security Agent, and Morgan Stanley Senior Funding, Inc., as administrative agent (the “Administrative Agent”, and together with the Lenders and the Security Agent, the “Lender Creditors”), the Lender Creditors have agreed to make certain financial accommodations available to Borrower from time to time pursuant to the terms and conditions thereof;

WHEREAS, capitalized terms used herein and not otherwise defined herein shall have the respective meanings assigned to such terms in the Security Agreement, and to the extent that any capitalized terms are not defined herein or in the Security Agreement, such terms shall have the respective meanings assigned to them in the Credit Agreement;

WHEREAS, the Credit Parties may enter into (or be a party to) one or more secured Hedging Agreements with a Hedging Creditor (the Hedging Creditors and the Lending Creditors are herein called the “Secured Creditors”);

WHEREAS, the Grantors have entered into the Security Agreement in order to induce the Secured Creditor to make certain financial accommodations to the Borrower; and

WHEREAS, pursuant to Section 8.12 of the Credit Agreement, certain new direct or indirect Subsidiaries of any Credit Party must execute and deliver certain Credit Documents, including the Security Agreement, and the execution of the Security Agreement by the undersigned new Grantor or Grantors (collectively, the “New Grantors”) may be accomplished by the execution of this Supplement in favor of the Security Agent, for the benefit of the Secured Creditors;

NOW, THEREFORE, for and in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each New Grantor hereby agrees as follows:

1.In accordance with Section 24 of the Security Agreement, each New Grantor, by its signature below, becomes a “Grantor” under the Security Agreement with the same force and effect as if originally named therein as a “Grantor” and each New Grantor hereby (a) agrees to all of the terms and provisions of the Security Agreement applicable to it as a “Grantor” thereunder and (b) represents and warrants that the representations and warranties made by it as a “Grantor” thereunder are true and correct on and as of the date hereof.  In furtherance of the foregoing, each New Grantor, as security for the full and prompt payment and performance in full of the Secured Obligations, does hereby grant, assign, and

pledge to the Security Agent, for the benefit of the Secured Creditors, a continuing security interest in and to all personal property of such New Grantor whether now owned or hereafter acquired or arising and wherever located, including such New Grantor’s right, title, and interest in and to all of such New Grantor’s “Collateral” (as such term is defined in Section 2 of the Security Agreement).  Schedule 1,  “Commercial Tort Claims”, Schedule 2, “Copyrights”, Schedule 3, “Intellectual Property Licenses”, Schedule 4, “Patents”, Schedule 5, “Pledged Companies”,  Schedule 6, “Trademarks”,  Schedule 7, “Owned Real Property”, and Schedule 8, “List of Uniform Commercial Code Filing Jurisdictions”, attached hereto supplement Schedule 1, Schedule 2, Schedule 3, Schedule 4, Schedule 5, Schedule 6, Schedule 7,  and Schedule 8, respectively, to the Security Agreement and shall be deemed a part thereof for all purposes of the Security Agreement.  Each reference to a “Grantor” in the Security Agreement shall be deemed to include each New Grantor.  The Security Agreement is incorporated herein by reference.  Each New Grantor hereby authorizes the Security Agent at any time and from time to time to file, transmit, or communicate, as applicable, financing statements and amendments in any jurisdiction and in any filing office (i) describing the Collateral as “all personal property of debtor” or “all assets of debtor” or words of similar effect, in each case, at the option of the Security Agent, (ii) indicating such Collateral includes such assets or property “whether now owned or hereafter acquired”, (iii) describing the Collateral as being of equal or lesser scope or with greater detail, or (iv) that contain any information required by part 5 of Article 9 of the Code for the sufficiency or filing office acceptance.  Each New Grantor also hereby ratifies any and all financing statements or amendments previously filed by or on behalf of the Security Agent in any jurisdiction.

2.Each New Grantor represents and warrants to the Security Agent and the Secured Creditors that this Supplement has been duly executed and delivered by such New Grantor and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, except as enforceability thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or other similar laws affecting creditors’ rights generally and general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity).

3.This Supplement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all such separate counterparts shall together constitute but one and the same instrument.  Delivery of a counterpart hereof by facsimile transmission or by e-mail transmission shall be as effective as delivery of a manually executed counterpart hereof.

4.Except as expressly supplemented hereby, the Security Agreement shall remain in full force and effect.

5.This Supplement shall be construed in accordance with and governed by the laws of the State of New York.

Notwithstanding anything herein to the contrary, the priority of the Lien and Security Interest granted to the Security Agent pursuant to this Supplement and the exercise of any right or remedy by the Security Agent hereunder are subject to the provisions of the Intercreditor Agreement.  In the event of any conflict between the terms of the Intercreditor Agreement and the terms of this Supplement, the terms of the Intercreditor Agreement shall govern and control, except with respect to the scope of the assets included in Section 1 hereof.

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IN WITNESS WHEREOF, each New Grantor and the Security Agent have duly executed this Supplement to the Security Agreement as of the day and year first above written.

NEW GRANTORS:	[Name of New Grantor]
	By:
	Name:
	Title:
	[Name of New Grantor]
	By:
	Name:
	Title:
SECURITY AGENT:	MORGAN STANLEY SENIOR FUNDING, INC.,
	as Security Agent
	By:
	Name:
	Title:

EXHIBIT A

COPYRIGHT SECURITY AGREEMENT

This COPYRIGHT SECURITY AGREEMENT (this “Copyright Security Agreement”) is made this     day of           , 20  , among the Grantors listed on the signature pages hereof (“Grantors” and each, a “Grantor”), and MORGAN STANLEY SENIOR FUNDING, INC., in its capacity as Security Agent for the benefit of the Secured Creditors (together with its successors, the “Security Agent”).

W I T N E S S E T H:

WHEREAS, pursuant to that certain Term Loan Credit Agreement dated as of even date herewith (as amended, restated, supplemented, modified, renewed or extended from time to time, the “Credit Agreement”) among AdvancePierre Foods Holdings, Inc., a Delaware corporation, Pierre Holdco, Inc., a Delaware corporation, AdvancePierre Foods, Inc., a Delaware corporation, as borrower (“Borrower”), the lenders party thereto (the “Lenders”), the Security Agent, and Morgan Stanley Senior Funding, Inc., as administrative agent (the “Administrative Agent”, and together with the Lenders and the Security Agent, the “Lender Creditors”), the Lender Creditors have agreed to make certain financial accommodations available to Borrower from time to time pursuant to the terms and conditions thereof;

WHEREAS, the Credit Parties may enter into (or be a party to) one or more secured Hedging Agreements with a Hedging Creditor (the Hedging Creditors and the Lending Creditors are herein called the “Secured Creditors”);

WHEREAS, in order to induce the Lender Creditors to enter into the Credit Agreement and the other Credit Documents and to induce the Lender Creditors to make financial accommodations to the Borrower as provided for in the Credit Agreement, the Grantors agreed to grant a continuing security interest in and to the Collateral, including the Copyright Collateral (as defined below), in order to secure the prompt and complete payment, observance and performance of, among other things, the Secured Obligations, pursuant to that certain Security Agreement dated as of June 2, 2016 among the Grantors and the Security Agent (including all annexes, exhibits or schedules thereto, as from time to time amended, restated, supplemented or otherwise modified, the “Security Agreement”); and

WHEREAS, pursuant to the Security Agreement, the Grantors are required to execute and deliver to the Security Agent, for the benefit of the Secured Creditors, this Copyright Security Agreement;

NOW, THEREFORE, for and in consideration of the recitals made above and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Grantors hereby agree as follows:

1.DEFINED TERMS.  All capitalized terms used herein and not otherwise defined herein shall have the respective meanings assigned to such terms in the Security Agreement, and to the extent that any capitalized terms are not defined herein or in the Security Agreement, such terms shall have the respective meanings assigned to them in the Credit Agreement.

2.GRANT OF SECURITY INTEREST IN COPYRIGHT COLLATERAL.  Each Grantor hereby unconditionally grants, collaterally assigns, and pledges to the Security Agent, for the benefit of the Secured Creditors, to secure the Secured Obligations, a continuing security interest (referred to in this Copyright Security Agreement as the “Security Interest”) in such Grantor’s right, title and interest in, to the following, whether now owned or hereafter acquired or arising and wherever located (collectively, the “Copyright Collateral”):

(a)all of such Grantor’s copyrights and copyright registrations, including (i) the copyright registrations and recordings thereof and all applications in connection therewith listed on Schedule I; (ii) all extensions or renewals thereof; (iii) all income, license fees, royalties, damages and payments now and hereafter due or payable under all licenses entered into in connection therewith and damages and payments for past or future infringements thereof, (iv) the right to sue for past, present and future infringements thereof, and (v) all rights corresponding thereto throughout the world; and

(c)all products and proceeds (as that term is defined in the Code) of the foregoing, including any claim by such Grantor against third parties for past, present or future infringement or violation of any Copyright.

3.SECURITY FOR OBLIGATIONS.  The Security Interest created hereby secures the payment and performance of all the Secured Obligations, whether now existing or arising hereafter.  Without limiting the generality of the foregoing, this Copyright Security Agreement secures the payment of all amounts which constitute part of the Secured Obligations and would be owed by the Grantors, or any of them, to the Security Agent or any Secured Creditor whether or not they are unenforceable or not allowable due to the existence of an Insolvency Proceeding involving any Grantor.

4.SECURITY AGREEMENT.  The Security Interest granted pursuant to this Copyright Security Agreement is granted in conjunction with the security interests granted to the Security Agent, for the benefit of the Secured Creditors, pursuant to the Security Agreement.  Each Grantor hereby acknowledges and affirms that the rights and remedies of the Security Agent with respect to the Security Interest in the Copyright Collateral made and granted hereby are more fully set forth in the Security Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein.  To the extent there is any inconsistency between this Copyright Security Agreement and the Security Agreement, the Security Agreement shall control.

5.AUTHORIZATION TO SUPPLEMENT.  Grantors shall give the Security Agent prompt notice in writing of any additional United States copyright registrations or applications therefor after the date hereof as required by the Security Agreement.  Grantors hereby authorize the Security Agent to unilaterally modify this Copyright Security Agreement by amending Schedule I to include any future United States registered copyrights or applications therefor of the Grantors.  Notwithstanding the foregoing, no failure to so modify this Copyright Security Agreement or amend Schedule I shall in any way affect, invalidate or detract from the Security Agent’s continuing security interest in all Collateral, whether or not listed on Schedule I.

6.TERMINATION.  This Copyright Security Agreement shall terminate upon termination of the Security Agreement.

7.COUNTERPARTS.  This Copyright Security Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such separate counterparts shall together constitute but one and the same instrument.  In proving this Copyright Security Agreement or any other Credit Document in any judicial proceedings, it shall not be necessary to produce or account for more than one such counterpart signed by the party against whom such enforcement is sought.  Any signatures delivered by a party by facsimile transmission or by e-mail transmission shall be deemed an original signature hereto.

8.GOVERNING LAW.  THE VALIDITY OF THIS COPYRIGHT SECURITY AGREEMENT, THE CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT HEREOF, AND THE RIGHTS OF THE PARTIES HERETO WITH RESPECT TO ALL MATTERS ARISING HEREUNDER OR RELATED HERETO SHALL BE DETERMINED

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UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

9.CONSTRUCTION.  Unless the context of this Copyright Security Agreement or any other Credit Document clearly requires otherwise, references to the plural include the singular, references to the singular include the plural, the terms “includes” and “including” are not limiting, and the term “or” has, except where otherwise indicated, the inclusive meaning represented by the phrase “and/or.” The words “hereof,” “herein,” “hereby,” “hereunder,” and similar terms in this Copyright Security Agreement or any other Credit Document refer to this Copyright Security Agreement or such other Credit Document, as the case may be, as a whole and not to any particular provision of this Copyright Security Agreement or such other Credit Document, as the case may be.  Section, subsection, clause, schedule, and exhibit references herein are to this Copyright Security Agreement unless otherwise specified.  Any reference in this Copyright Security Agreement or in any other Credit Document to any agreement, instrument, or document shall include all alterations, amendments, changes, extensions, modifications, renewals, replacements, substitutions, joinders, and supplements, thereto and thereof, as applicable (subject to any restrictions on such alterations, amendments, changes, extensions, modifications, renewals, replacements, substitutions, joinders, and supplements set forth herein).  Any reference herein or in any other Credit Document to the satisfaction or repayment in full of the Obligations shall mean the repayment in full in cash (or cash collateralization in accordance with the terms of the Credit Agreement) of all Obligations other than unasserted contingent indemnification and expense reimbursement Obligations.  Any reference herein to any Person shall be construed to include such Person’s successors and assigns.  Any requirement of a writing contained herein or in any other Credit Document shall be satisfied by the transmission of a Record.

10.INTERCREDITOR AGREEMENT.  Notwithstanding anything herein to the contrary, the Lien and Security Interest granted to the Security Agent pursuant to this Copyright Security Agreement and the exercise of any right or remedy by the Security Agent hereunder are subject to the provisions of the Intercreditor Agreement.  In the event of any conflict between the terms of the Intercreditor Agreement and the terms of this Copyright Security Agreement, the terms of the Intercreditor Agreement shall govern and control, except with respect to the scope of the assets included in Section 2 hereof.

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IN WITNESS WHEREOF, each Grantor has caused this Copyright Security Agreement to be executed and delivered by its duly authorized officer as of the date first set forth above.

By:

Name:

Title:

By:

Name:

Title:

ACCEPTED AND ACKNOWLEDGED BY:

MORGAN STANLEY SENIOR FUNDING, INC.,

as Security Agent

By:

Name:

Title:

SCHEDULE I
TO
COPYRIGHT SECURITY AGREEMENT

COPYRIGHT REGISTRATIONS

Grantor Country Copyright Registration No. Registration Date

EXHIBIT B

PATENT SECURITY AGREEMENT

This PATENT SECURITY AGREEMENT (this “Patent Security Agreement”) is made this    day of        , 20  , among Grantors listed on the signature pages hereof (“Grantors” and each, a “Grantor”), and MORGAN STANLEY SENIOR FUNDING, INC., in its capacity as Security Agent for the benefit of the Secured Creditors (together with its successors, the “Agent”).

W I T N E S S E T H:

WHEREAS, pursuant to that certain Term Loan Credit Agreement dated as of even date herewith (as amended, restated, supplemented, modified, renewed or extended from time to time, the “Credit Agreement”) among AdvancePierre Foods Holdings, Inc., a Delaware corporation, Pierre Holdco, Inc., a Delaware corporation, AdvancePierre Foods, Inc., a Delaware corporation, as borrower (“Borrower”), the lenders party thereto (the “Lenders”), the Security Agent, and Morgan Stanley Senior Funding, Inc., as administrative agent (the “Administrative Agent”, and together with the Lenders and the Security Agent, the “Lender Creditors”), the Lender Creditors have agreed to make certain financial accommodations available to Borrower from time to time pursuant to the terms and conditions thereof;

WHEREAS, the Credit Parties may enter into (or be a party to) one or more secured Hedging Agreements with a Hedging Creditor (the Hedging Creditors and the Lending Creditors are herein called the “Secured Creditors”);

WHEREAS, in order to induce the Lender Creditors to enter into the Credit Agreement and the other Credit Documents and to induce the Lender Creditors to make financial accommodations to the Borrower as provided for in the Credit Agreement, the Grantors agreed to grant a continuing security interest in and to the Collateral, including the Patent Collateral (as defined below), in order to secure the prompt and complete payment, observance and performance of, among other things, the Secured Obligations, pursuant to that certain Security Agreement dated as of June 2, 2016 among the Grantors and the Security Agent (including all annexes, exhibits or schedules thereto, as from time to time amended, restated, supplemented or otherwise modified, the “Security Agreement”); and

WHEREAS, pursuant to the Security Agreement, the Grantors are required to execute and deliver to the Security Agent, for the benefit of the Secured Creditors, this Patent Security Agreement;

NOW, THEREFORE, for and in consideration of the recitals made above and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Grantors hereby agree as follows:

1.DEFINED TERMS.  All capitalized terms used herein and not otherwise defined herein shall have the respective meanings assigned to such terms in the Security Agreement, and to the extent that any capitalized terms are not defined herein or in the Security Agreement, such terms shall have the respective meanings assigned to them in the Credit Agreement.

2.GRANT OF SECURITY INTEREST IN PATENT COLLATERAL.  Each Grantor hereby unconditionally grants, collaterally assigns, and pledges to the Security Agent, for the benefit of the Secured Creditors, to secure the Secured Obligations, a continuing security interest (referred to in this Patent Security Agreement as the “Security Interest”) in such Grantor’s right, title and interest in, to the following, whether now owned or hereafter acquired or arising and wherever located (collectively, the “Patent Collateral”):

(a)all of its patents and patent applications, including (i) the patents and patent applications listed on Schedule I; (ii) all renewals, continuations, divisionals, continuations-in-part, reissues and examinations thereof, (iii) all income, royalties, damages and payments now and hereafter due or payable under all licenses entered into in connection therewith and damages and payments for past, present or future infringements thereof, (iv) the right to sue for past, present and future infringements thereof, and (v) all rights corresponding thereto throughout the world; and

(b)all products and proceeds (as that term is defined in the Code) of the foregoing, including any claim by such Grantor against third parties for past, present or future infringement or violations of any Patent or any Patent licensed under any Intellectual Property License.

3.SECURITY FOR OBLIGATIONS.  The Security Interest created hereby secures the payment and performance of all the Secured Obligations, whether now existing or arising hereafter.  Without limiting the generality of the foregoing, this Patent Security Agreement secures the payment of all amounts which constitute part of the Obligations and would be owed by the Grantors, or any of them, to the Security Agent or any Secured Creditor, whether or not they are unenforceable or not allowable due to the existence of an Insolvency Proceeding involving any Grantor.

4.SECURITY AGREEMENT.  The security interests granted pursuant to this Patent Security Agreement are granted in conjunction with the security interests granted to the Security Agent, for the benefit of the Secured Creditors, pursuant to the Security Agreement.  Each Grantor hereby acknowledges and affirms that the rights and remedies of the Security Agent with respect to the security interest in the Patent Collateral made and granted hereby are more fully set forth in the Security Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein.  To the extent there is any inconsistency between this Patent Security Agreement and the Security Agreement, the Security Agreement shall control.

5.AUTHORIZATION TO SUPPLEMENT.  If any Grantor shall obtain rights to any new patentable invention or become entitled to the benefit of any patent application or patent for any continuations, divisionals, continuations-in-part, reissues, or reexaminations of the patents or patent applications listed on Schedule I, the provisions of this Patent Security Agreement shall automatically apply thereto. The Grantors shall give prompt notice in writing to Security Agent with respect to any such new patent rights as required by the Security Agreement.  Without limiting Grantors’ obligations under this Section, Grantors hereby authorize the Security Agent to unilaterally modify this Patent Security Agreement by amending Schedule I to include any such new patent rights of Grantors.  Notwithstanding the foregoing, no failure to so modify this Patent Security Agreement or amend Schedule I shall in any way affect, invalidate or detract from the Security Agent’s continuing security interest in all Collateral, whether or not listed on Schedule I.

6.TERMINATION.  This Patent Security Agreement shall terminate upon termination of the Security Agreement.

7.COUNTERPARTS.  This Patent Security Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such separate counterparts shall together constitute but one and the same instrument.  In proving this Patent Security Agreement or any other Credit Document in any judicial proceedings, it shall not be necessary to produce or account for more than one such counterpart signed by the party against whom such enforcement is sought.  Any signatures delivered by a party by facsimile transmission or by e-mail transmission shall be deemed an original signature hereto.

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8.GOVERNING LAW.  THE VALIDITY OF THIS PATENT SECURITY AGREEMENT, THE CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT HEREOF, AND THE RIGHTS OF THE PARTIES HERETO WITH RESPECT TO ALL MATTERS ARISING HEREUNDER OR RELATED HERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

9.CONSTRUCTION.  Unless the context of this Patent Security Agreement or any other Credit Document clearly requires otherwise, references to the plural include the singular, references to the singular include the plural, the terms “includes” and  “including” are not limiting, and the term “or” has, except where otherwise indicated, the inclusive meaning represented by the phrase “and/or.”  The words “hereof,” “herein,” “hereby,” “hereunder,” and similar terms in this Patent Security Agreement or any other Credit Document refer to this Patent Security Agreement or such other Credit Document, as the case may be, as a whole and not to any particular provision of this Patent Security Agreement or such other Credit Document, as the case may be.  Section, subsection, clause, schedule, and exhibit references herein are to this Patent Security Agreement unless otherwise specified.  Any reference in this Patent Security Agreement or in any other Credit Document to any agreement, instrument, or document shall include all alterations, amendments, changes, extensions, modifications, renewals, replacements, substitutions, joinders, and supplements, thereto and thereof, as applicable (subject to any restrictions on such alterations, amendments, changes, extensions, modifications, renewals, replacements, substitutions, joinders, and supplements set forth herein).  Any reference herein or in any other Credit Document to the satisfaction or repayment in full of the Obligations shall mean the repayment in full in cash (or cash collateralization in accordance with the terms of the Credit Agreement) of all Obligations other than unasserted contingent indemnification and expense reimbursement Obligations.  Any reference herein to any Person shall be construed to include such Person’s successors and assigns.  Any requirement of a writing contained herein or in any other Credit Document shall be satisfied by the transmission of a Record.

10.INTERCREDITOR AGREEMENT.  Notwithstanding anything herein to the contrary, the Lien and Security Interest granted to the Security Agent pursuant to this Patent Security Agreement and the exercise of any right or remedy by the Security Agent hereunder are subject to the provisions of the Intercreditor Agreement.  In the event of any conflict between the terms of the Intercreditor Agreement and the terms of this Patent Security Agreement, the terms of the Intercreditor Agreement shall govern and control, except with respect to the scope of the assets included in Section 2 hereof.

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IN WITNESS WHEREOF, each Grantor has caused this Patent Security Agreement to be executed and delivered by its duly authorized officer as of the date first set forth above.

By:

Name:

Title:

By:

Name:

Title:

ACCEPTED AND ACKNOWLEDGED BY:

MORGAN STANLEY SENIOR FUNDING, INC.,

as Security Agent

By:

Name:

Title:

EXHIBIT C

PLEDGED INTERESTS ADDENDUM

This Pledged Interests Addendum, dated as of [          ], 20[   ], is delivered pursuant to Section 6 of the Security Agreement referred to below.  The undersigned hereby agrees that this Pledged Interests Addendum may be attached to that certain Security Agreement, dated as of June 2, 2016 (as amended, restated, supplemented or otherwise modified from time to time, the “Security Agreement”), made by the undersigned, together with the other Grantors named therein, to MORGAN STANLEY SENIOR FUNDING, INC., as Security Agent.  Initially capitalized terms used herein and not otherwise defined herein shall have the respective meanings assigned to such terms in the Security Agreement, and to the extent that any capitalized terms are not defined herein or in the Security Agreement, such terms shall have the respective meanings assigned to them in the Credit Agreement.  The undersigned hereby agrees that the additional interests listed on this Pledged Interests Addendum as set forth below shall be and become part of the Pledged Interests pledged by the undersigned to the Security Agent in the Security Agreement and any pledged company set forth on this Pledged Interests Addendum as set forth below shall be and become a “Pledged Company” under the Security Agreement, each with the same force and effect as if originally named therein.

The undersigned hereby certifies that the representations and warranties set forth in Section 5 of the Security Agreement of the undersigned are true and correct as to the Pledged Interests listed herein on and as of the date hereof.

[                   ]

By:

Title

Name of Pledgor Name of Pledged
Company Number of
Shares/Units Class of
Interests Percentage
of Class
Owned Certificate
Nos.

EXHIBIT D

TRADEMARK SECURITY AGREEMENT

This TRADEMARK SECURITY AGREEMENT (this “Trademark Security Agreement”) is made this    day of          , 20  , among the Grantors listed on the signature pages hereof (“Grantors” and each, a “Grantor”), and MORGAN STANLEY SENIOR FUNDING, INC., in its capacity as Security Agent for the Secured Creditors (together with its successors, the “Security Agent”).

W I T N E S S E T H:

WHEREAS, pursuant to that certain Term Loan Credit Agreement dated as of even date herewith (as amended, restated, supplemented, modified, renewed or extended from time to time, the “Credit Agreement”) among AdvancePierre Foods Holdings, Inc., a Delaware Corporation, Pierre Holdco, Inc., a Delaware corporation, AdvancePierre Foods, Inc., a Delaware corporation, as borrower (“Borrower”), the lenders party thereto (the “Lenders”), the Security Agent, and Morgan Stanley Senior Funding, Inc., as administrative agent (the “Administrative Agent”, and together with the Lenders and the Security Agent, the “Lender Creditors”), the Lender Creditors have agreed to make certain financial accommodations available to Borrower from time to time pursuant to the terms and conditions thereof;

WHEREAS, the Credit Parties may enter into (or be a party to) one or more secured Hedging Agreements with a Hedging Creditor (the Hedging Creditors and the Lending Creditors are herein called the “Secured Creditors”);

WHEREAS, in order to induce the Lender Creditors to enter into the Credit Agreement and the other Credit Documents and to induce the Lender Creditors to make financial accommodations to Borrower as provided for in the Credit Agreement, the Grantors agreed to grant a continuing security interest in and to the Collateral, including the Trademark Collateral (as defined below), in order to secure the prompt and complete payment, observance and performance of, among other things, the Secured Obligations, pursuant to that certain Security Agreement dated as of June 2, 2016 among the Grantors and the Security Agent (including all annexes, exhibits or schedules thereto, as from time to time amended, restated, supplemented or otherwise modified, the “Security Agreement”); and

WHEREAS, pursuant to the Security Agreement, Grantors are required to execute and deliver to Security Agent, for the benefit of the Secured Creditors, this Trademark Security Agreement;

NOW, THEREFORE, for and in consideration of the recitals made above and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Grantors hereby agree as follows:

1.             DEFINED TERMS.  All capitalized terms used herein and not otherwise defined herein shall have the respective meanings assigned to such terms in the Security Agreement, and to the extent that any capitalized terms are not defined herein or in the Security Agreement, such terms shall have the respective meanings assigned to them in the Credit Agreement.

2.             GRANT OF SECURITY INTEREST IN TRADEMARK COLLATERAL.  Each Grantor hereby unconditionally grants, collaterally assigns, and pledges to the Security Agent, for the benefit of the Secured Creditors, to secure the Secured Obligations, a continuing security interest (referred to in this Patent Security Agreement as the “Security Interest”) in such Grantor’s right, title and interest in, to the following, whether now owned or hereafter acquired or arising and wherever located (collectively, the “Trademark Collateral”):

FORM OF TRADEMARK SECURITY AGREEMENT

(a)           all of its trademarks, trade names, service marks, trade dress, logos, slogans, designs or fictitious business names, registered trademarks, trademark applications, service marks, registered service marks and service mark applications, including (i) those marks listed on Schedule I; (ii) all renewals thereof, (iii) all income, royalties, damages and payments now and hereafter due or payable under and with respect thereto, including payments under all licenses entered into in connection therewith and damages and payments for past or future infringements or dilutions thereof, (iv) the right to sue for past, present and future infringements and dilutions thereof, (v) the goodwill of each Grantor’s rights corresponding thereto throughout the world, and (vi) all of each Grantor’s rights corresponding thereto throughout the world; and

(b)           all products and proceeds (as that term is defined in the Code) of the foregoing, including any claim by such Grantor against third parties for past, present or future (i) infringement, misappropriation or dilution of any Trademark or (ii) injury to the goodwill associated with any Trademark.

3.             SECURITY FOR OBLIGATIONS.  The Security Interest created hereby secures the payment and performance of all the Secured Obligations, whether now existing or arising hereafter.  Without limiting the generality of the foregoing, this Trademark Security Agreement secures the payment of all amounts which constitute part of the Secured Obligations and would be owed by the Grantors, or any of them, to the Security Agent or any Secured Creditor, whether or not they are unenforceable or not allowable due to the existence of an Insolvency Proceeding involving any Grantor.

4.             SECURITY AGREEMENT.  The Security Interest granted pursuant to this Trademark Security Agreement is granted in conjunction with the security interests granted to the Security Agent, for the benefit of the Secured Creditors, pursuant to the Security Agreement.  Each Grantor hereby acknowledges and affirms that the rights and remedies of the Security Agent with respect to the security interest in the Trademark Collateral made and granted hereby are more fully set forth in the Security Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein.  To the extent there is any inconsistency between this Trademark Security Agreement and the Security Agreement, the Security Agreement shall control.

5.             AUTHORIZATION TO SUPPLEMENT.  If any Grantor shall obtain rights to any new trademarks, the provisions of this Trademark Security Agreement shall automatically apply thereto. The Grantors shall give prompt notice in writing to the Security Agent with respect to any such new trademarks or renewal or extension of any trademark registration after the date hereof as required by the Security Agreement.   Without limiting the Grantors’ obligations under this Section, the Grantors hereby authorize the Security Agent to unilaterally modify this Trademark Security Agreement by amending Schedule I to include any such new trademark rights of the Grantors.  Notwithstanding the foregoing, no failure to so modify this Trademark Security Agreement or amend Schedule I shall in any way affect, invalidate or detract from the Security Agent’s continuing security interest in all Collateral, whether or not listed on Schedule I.

6.             TERMINATION.  This Trademark Security Agreement shall terminate upon termination of the Security Agreement.

7.             COUNTERPARTS.  This Trademark Security Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such separate counterparts shall together constitute but one and the same instrument.  In proving this Trademark Security Agreement or any other Credit Document in any judicial proceedings, it shall not be necessary to produce or account for more than one such counterpart signed by the party against whom such

2

enforcement is sought.  Any signatures delivered by a party by facsimile transmission or by e-mail transmission shall be deemed an original signature hereto.

8.             GOVERNING LAW.  THE VALIDITY OF THIS TRADEMARK SECURITY AGREEMENT, THE CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT HEREOF, AND THE RIGHTS OF THE PARTIES HERETO WITH RESPECT TO ALL MATTERS ARISING HEREUNDER OR RELATED HERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

9.             CONSTRUCTION.  Unless the context of this Trademark Security Agreement or any other Credit Document clearly requires otherwise, references to the plural include the singular, references to the singular include the plural, the terms “includes” and “including” are not limiting, and the term “or” has, except where otherwise indicated, the inclusive meaning represented by the phrase “and/or.”  The words “hereof,” “herein,” “hereby,” “hereunder,” and similar terms in this Trademark Security Agreement or any other Credit Document refer to this Trademark Security Agreement or such other Credit Document, as the case may be, as a whole and not to any particular provision of this Trademark Security Agreement or such other Credit Document, as the case may be.  Section, subsection, clause, schedule, and exhibit references herein are to this Trademark Security Agreement unless otherwise specified.  Any reference in this Trademark Security Agreement or in any other Credit Document to any agreement, instrument, or document shall include all alterations, amendments, changes, extensions, modifications, renewals, replacements, substitutions, joinders, and supplements, thereto and thereof, as applicable (subject to any restrictions on such alterations, amendments, changes, extensions, modifications, renewals, replacements, substitutions, joinders, and supplements set forth herein).  Any reference herein or in any other Credit Document to the satisfaction or repayment in full of the Obligations shall mean the repayment in full in cash (or cash collateralization in accordance with the terms of the Credit Agreement) of all Obligations other than unasserted contingent indemnification and expense reimbursement Obligations.  Any reference herein to any Person shall be construed to include such Person’s successors and assigns.  Any requirement of a writing contained herein or in any other Credit Document shall be satisfied by the transmission of a Record.

10.          INTERCREDITOR AGREEMENT.  Notwithstanding anything herein to the contrary, the Lien and Security Interest granted to the Security Agent pursuant to this Trademark Security Agreement and the exercise of any right or remedy by the Security Agent hereunder are subject to the provisions of the Intercreditor Agreement.  In the event of any conflict between the terms of the Intercreditor Agreement and the terms of this Trademark Security Agreement, the terms of the Intercreditor Agreement shall govern and control, except with respect to the scope of the assets included in Section 2 hereof.

[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]

3

IN WITNESS WHEREOF, each Grantor has caused this Trademark Security Agreement to be executed and delivered by its duly authorized officer as of the date first set forth above.

By:

Name:

Title:

By:

Name:

Title:

ACCEPTED AND ACKNOWLEDGED BY:

MORGAN STANLEY SENIOR FUNDING, INC., as Security Agent

By:

Name:

Title:

SCHEDULE I
to
TRADEMARK SECURITY AGREEMENT

Trademark Registrations/Applications

Grantor Country Mark Application/
Registration No. App/Reg Date

2

EXHIBIT G

FORM OF SOLVENCY CERTIFICATE

                   , 20

I, the undersigned, the [Chief Financial Officer][Treasurer] of AdvancePierre Foods Holdings, Inc. (“Parent”), a Delaware corporation, in that capacity only and not in my individual capacity, do hereby certify as of the date hereof that:

1.             This Certificate is delivered pursuant to Section 5.15(a) of the Term Loan Credit Agreement, dated as of June 2, 2016, among AdvancePierre Foods, Inc. (the “Borrower”), a Delaware corporation, Parent, Pierre Holdco, Inc., a Delaware corporation, the lenders party thereto from time to time (each a “Lender”, and, collectively, the “Lenders”), and Morgan Stanley Senior Funding, Inc., as Administrative Agent (the “Administrative Agent”) (the “Term Loan Credit Agreement”). Unless otherwise defined herein, capitalized terms used in this Certificate shall have the meanings set forth in the Term Loan Credit Agreement.

2.             On and as of the date hereof, and after giving pro forma effect to the consummation of the Transaction and to all Indebtedness (including the Loans, the ABL Loans and the Second-Lien Term Loans) being incurred, issued or assumed and Liens created by the Credit Parties in connection therewith, Parent and its Restricted Subsidiaries, on a consolidated basis, are Solvent.

[remainder of page intentionally left blank]

1

IN WITNESS WHEREOF, the undersigned has set his hand as of the date first written above.

ADVANCEPIERRE FOODS HOLDINGS, INC.

By:

Name:

Title:

2

EXHIBIT H

FORM OF COMPLIANCE CERTIFICATE

This Compliance Certificate is delivered to you pursuant to Section 8.01(d) of the Term Loan Credit Agreement, dated as of June 2, 2016 (as amended, restated amended and restated, amended and extended, supplemented, modified, restructured, replaced or refinanced from time to time, the “Term Loan Credit Agreement”), among AdvancePierre Foods Holdings, Inc. (the “Parent”), Pierre Holdco Inc., AdvancePierre Foods, Inc. (the “Company”), the lenders party thereto from time to time, and Morgan Stanley Senior Funding, Inc., as Administrative Agent. Terms defined in the Term Loan Credit Agreement and not otherwise defined herein are used herein as therein defined.

1.             I am the duly elected, qualified and acting [                  ](1) of the [Company][Parent].

2.             I have reviewed and am familiar with the contents of this Compliance Certificate.

I am providing this Compliance Certificate solely in my capacity as an officer of the [Company][Parent]. The matters set forth herein are true to the best of my knowledge after due inquiry.

3.             I have reviewed the terms of the Term Loan Credit Agreement and the other Credit Documents and have made or caused to be made under my supervision a review in reasonable detail of the transactions and condition of the Company and its Subsidiaries during the accounting period covered by the financial statements attached hereto as ANNEX 1 (the “Financial Statements”). [Except as set forth in ANNEX 2,](2) [[s]/[S]uch review did not disclose the existence during or at the end of the accounting period covered by the Financial Statements, and I have no knowledge of the existence, as of the date of this Compliance Certificate, of any condition or event which constitutes a Default or an Event of Default.

4.             [Attached hereto as ANNEX [2]/[3](3) are the computations showing (in reasonable detail) Excess Cash Flow for the respective Excess Cash Flow Payment Period and the amount of any required payment under Section 4.02(f) of the Term Loan Credit Agreement in respect of such Excess Cash Flow Payment Period.](2)

5.             [Attached hereto as ANNEX [2]/[3]/[4] are the computations showing (in reasonable detail) the Available Amount for the respective Excess Cash Payment Period and the amounts, if any, charged to the Available Amount in such Fiscal Year].(4)

6.             Attached hereto as ANNEX [2]/[3]/[4]/[5] are the particulars of those Subsidiaries of the Parent designated or re-designated as Unrestricted Subsidiaries or Restricted Subsidiaries, as applicable, if any, during the most recently ended [Fiscal Quarter][Fiscal Year](5) of Parent.

(1)Insert title of Authorized Officer.

(2)Specify the nature and extent of any Default or Event of Default if applicable.

(3)Include only if delivered with the financial statements required by Section 8.01(b) of the First-Lien Credit Agreement and commencing with the Fiscal Year ending December 30, 2017.

(4)Include only if delivered with the financial statements required by Section 8.01(b) of the First-Lien Credit Agreement and commencing with the Fiscal Year ending December 30, 2017.

(5)From the Effective Date with respect to the first compliance certificate delivered under the First-Lien Credit Agreement after the Effective Date.

1

IN WITNESS WHEREOF, I have executed this Compliance Certificate this      day of    ,    .

[ADVANCEPIERRE FOODS HOLDINGS, INC.][ADVANCEPIERRE FOODS, INC.]

By:

Name:

Title:

2

ANNEX 1

[Applicable Financial Statements To Be Attached]

3

[ANNEX 2]

[If a Default or Event of Default exists, describe the nature and extend of the Default or Event of Default.]

4

ANNEX [2]/[3]

[The information described herein is as of         ,     (6) (the “Computation Date”).

I.             Excess Cash Flow

The amount of Excess Cash Flow for the Excess Cash Payment Period ending on the Computation Date was $      and the amount of the payment required pursuant to Section 4.02(f) of the Term Loan Credit Agreement for the respective Excess Cash Payment Period is $     .](7)

(6)Insert the last day of the fiscal year covered by the financial statements which are required to be accompanied by this Compliance Certificate.

(7)Include only for Compliance Certificates delivered in respect of Test Periods which end on December 30 (commencing with December 30, 2017). Also attach hereto in reasonable detail the calculations required to establish Excess Cash Flow and the amount of any related mandatory repayment.

5

ANNEX [2]/[3]/[4]

[The information described herein is as of the Computation Date.

I.             Available Amount

The Available Amount for the Excess Cash Payment Period ended as of the Computation Date was $     .

II.            Available Amount Utilization

The following amounts have been charged to the Available Amount in the Fiscal Year ended as of the Computation Date:

a.             Amounts charged pursuant to Section 9.03(i): $

b.             Amounts charged pursuant to Section 9.05(r): $

c.             Amounts charged pursuant to Section 9.05(v): $

d.             Amounts charged pursuant to Section 9.10(a)(x)(2): $                        ](8)

(8)Include only for Compliance Certificates delivered in respect of Test Periods which end on December 30 (commencing with December 30, 2017). Also attach hereto in reasonable detail the calculations required to establish the Available Amount and any usage of the Available Amount.

6

ANNEX [2]/[3]/[4]/[5]

The following Subsidiaries of the Parent have been designated or re-designated as Unrestricted Subsidiaries or Restricted Subsidiaries, as indicated below, during the most recently ended [Fiscal Quarter][Fiscal Year] of Parent.

1.             [Insert name and designation/re-designation of Subsidiary]

7

EXHIBIT I

FORM OF ASSIGNMENT
AND
ASSUMPTION AGREEMENT(1)

This Assignment and Assumption Agreement (this “Assignment”), is dated as of the Effective Date set forth below and is entered into by and between [the][each] Assignor identified in item [1][2] below ([the] [each, an] “Assignor”) and [the] [each] Assignee identified in item 2 below ([the] [each, an] “Assignee”). [It is understood and agreed that the rights and obligations of such [Assignees][and Assignors] hereunder are several and not joint.] Capitalized terms used herein but not defined herein shall have the meanings given to them in the Term Loan Credit Agreement identified below (as amended, restated amended and restated, amended and extended, supplemented, modified, restructured, replaced or refinanced from time to time, the “Term Loan Credit Agreement”). The Standard Terms and Conditions for Assignment and Assumption Agreement set forth in Annex 1 hereto (the “Standard Terms and Conditions”) are hereby agreed to and incorporated herein by reference and made a part of this Assignment as if set forth herein in full.

For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the] [each] Assignee, and [the] [each] Assignee hereby irrevocably purchases and assumes from [the][each] Assignor, subject to and in accordance with the Standard Terms and Conditions and the Term Loan Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below, the interest in and to all of [the][each] Assignor’s rights and obligations under the Term Loan Credit Agreement and any other documents or instruments delivered pursuant thereto that represents the amount and percentage interest identified below of all of the [respective] Assignor’s outstanding rights and obligations identified below ([the] [each, an] “Assigned Interest”). [Each] [Such] sale and assignment is without recourse to [the][any] Assignor and, except as expressly provided in this Assignment, without representation or warranty by [the][any] Assignor.

[1.Assignor:

2.Assignee:                                         ](2)

[1][3]. Term Loan Credit Agreement: Credit Agreement, dated as of June 2, 2016, among AdvancePierre Foods Holdings, Inc., Pierre Holdco, Inc., AdvancePierre Foods, Inc. (the “Borrower”), the Lenders party thereto from time to time, and Morgan Stanley Senior Funding, Inc., as Administrative Agent.

(1)This Form of Assignment and Assumption Agreement should be used by Lenders for an assignment to a single Assignee or to funds managed by the same or related investment managers.

(2)If the form is used for a single Assignor and Assignee, items 1 and 2 should list the Assignor and the Assignee, respectively. In the case of an assignment to funds managed by the same or related investment managers, or an assignment by multiple Assignors, the Assignors and the Assignee(s) should be listed in the table under bracketed item 2 below.

1

[2.           Assigned Interest:(3)

Assignor	Assignee	Class of Loans Assigned	Aggregate Amount of Loans	Amount of Loans Assigned
[Name of Assignor]	[Name of Assignee]	[·]
[Name of Assignor]	[Name of Assignee]	[·]

(3)Insert this chart if this Form of Assignment and Assumption Agreement is being used for assignments to funds managed by the same or related investment managers or for an assignment by multiple Assignors. Insert additional rows as needed.

2

Exhibit I

[4.           Assigned Interest:(4)

Class of Loans Assigned	Aggregate Amount of Loans	Amount of Loans Assigned
[·]	$	$
[[·]		]

Effective Date   ,     ,     .

Assignor[s] Information		Assignee[s] Information
Payment Instructions:		Payment Instructions:
	Reference:		Reference:
Notice Instructions:		Notice Instructions:
	Reference:		Reference:

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

ASSIGNOR	ASSIGNEE
[NAME OF ASSIGNOR]	[NAME OF ASSIGNEE](5)
By:	By:
Name:	Name:
Title:	Title:

(4)Insert this chart if this Form of Assignment and Assumption Agreement is being used by a single Assignor for an assignment to a single Assignee.

(5)Add additional signature blocks, as needed, if this Form of Assignment and Assumption Agreement is being used by funds managed by the same or related investment managers.

3

[Consented to and](6) Accepted:

MORGAN STANLEY SENIOR FUNDING, INC.,

as Administrative Agent

By:

Name:

Title:

By:

Name:

Title:

[ADVANCEPIERRE FOODS, INC.

By:

Name:

Title:](7)

(6)Insert only if assignment is being made to an Eligible Transferee pursuant to Section 12.04(b)(y) of the First-Lien Credit Agreement. Consent of the Administrative Agent shall not be unreasonably withheld, delayed or conditioned.

(7)Insert only if no Event of Default is then in existence and continuing under Section 10.01(a) or (e). Consent of the Borrower shall not be unreasonably withheld, delayed or conditioned (such consent deemed to have been made with respect to any assignment if the Borrower has not responded within ten Business Days after written request for consent to such assignment.

4

ANNEX I
TO
EXHIBIT I

ADVANCEPIERRE FOODS, INC.
TERM LOAN CREDIT AGREEMENT

STANDARD TERMS AND CONDITIONS FOR ASSIGNMENT
AND ASSUMPTION AGREEMENT

1.             Representations and Warranties.

1.1.         Assignor. [The] [Each] Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of [the] [its] Assigned Interest, (ii) [the] [its] Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and to consummate the transactions contemplated hereby; and (b) makes no representation or warranty and assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with any Credit Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Term Loan Credit Agreement, any other Credit Document or any other instrument or document delivered pursuant thereto (other than this Assignment) or any collateral thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Credit Document or (iv) the performance or observance by the Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Credit Document.

1.2.         Assignee. [The] [Each] Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and to consummate the transactions contemplated hereby and to become a Lender under the Term Loan Credit Agreement, (ii) confirms that it is (A) a Lender, (B) a Lender Affiliate of [the][each] Assignor, (C) an Affiliated Lender under Section 2.15 of the Term Loan Credit Agreement or (D) an Eligible Transferee under Section 12.04(b) of the Term Loan Credit Agreement; (iii) confirms that it is not a Disqualified Lender, (iv) from and after the Effective Date, it shall be bound by the provisions of the Term Loan Credit Agreement and, to the extent of [the][its] Assigned Interest, shall have the obligations of a Lender thereunder, (v) it has received a copy of the Term Loan Credit Agreement, together with copies of the most recent financial statements delivered pursuant to Section 8.01 thereof, as applicable, and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and to purchase [the][its] Assigned Interest on the basis of which it has made such analysis and decision and (vi) if it is organized under the laws of a jurisdiction outside the United States, it has attached to this Assignment any tax documentation required to be delivered by it pursuant to the terms of the Term Loan Credit Agreement, duly completed and executed by it; (b) agrees that it will, independently and without reliance upon the Administrative Agent, [the][each] Assignor, or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Term Loan Credit Agreement; (c) appoints and authorizes the Administrative Agent and the Security Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Term Loan Credit Agreement and the other Credit Documents as are delegated to or otherwise conferred upon the Administrative Agent or the Security Agent by the terms thereof, together with such powers as are reasonably incidental thereto; and (d) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Credit Documents are required to be performed by it as a Lender.

5

[[The] [Each] Assignee (A) represents and warrants that it is an Affiliated Non-Debt Fund Lender and (B) waives its right to receive information (other than administrative information such as notifications under Section 2 of the Term Loan Credit Agreement) not prepared by (or on behalf of) Parent, Holdings or Borrower from the Administrative Agent, the Security Agent or any other Lender in connection with the Credit Documents otherwise delivered or required to be delivered to each Lender and attend any meeting or conference call with the Administrative Agent, the Security Agent or any Lender in respect of the Credit Documents but in which none of Parent, Holdings or Borrower participate and to receive advice of counsel to the Administrative Agent or the Lenders or challenge any related attorney-client privilege.](8)

[[The][Each] Assignee represents and warrants that it is a Sponsor Debt Fund.](9)

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

3.             Effect of Assignment. Upon the delivery of a fully executed original hereof to the Administrative Agent, as of the Effective Date, (i) [the][each] Assignee shall be a party to the Term Loan Credit Agreement and, to the extent provided in this Assignment, have the rights and obligations of a Lender thereunder and under the other Credit Documents and (ii) [the][each] Assignor shall, to the extent provided in this Assignment, relinquish its rights and be released from its obligations under the Term Loan Credit Agreement and the other Credit Documents.

4.             General Provisions. This Assignment shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment by telecopy or by email as a “.pdf’ or “.tif’ attachment shall be effective as delivery of a manually executed counterpart of the Assignment. THIS ASSIGNMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK (INCLUDING, WITHOUT LIMITATION, SECTION 5.1401 OF THE GENERAL OBLIGATIONS LAW).

*              *              *

(8)Insert solely to the extent the Assignee is an Affiliated Non-Debt Fund Lender.

(9)Insert solely to the extent the Assignee is a Sponsor Debt Fund.

6

EXHIBIT J

FORM OF INTERCOMPANY NOTE

New York, New York
                               , 20    

FOR VALUE RECEIVED, each of the undersigned, to the extent a borrower from time to time from any other entity listed on the signature pages hereto (each, in such capacity, and together with any other entity that becomes a party to this intercompany note (this “Note”) pursuant to the penultimate paragraph of this Note, a “Payor”), hereby promises to pay on demand to the order of each such other entity listed on the signature pages hereto (each, in such capacity, and together with any other entity that becomes a party hereto pursuant to the penultimate paragraph of this Note, a “Payee”), in lawful money of the United States of America in immediately available funds, at such location in the United States of America as such Payee shall from time to time designate, the unpaid principal amount of all loans and advances made by such Payee to such Payor.  Each Payor promises also to pay interest on the unpaid principal amount of all such loans and advances in like money at said location from the date of such loans and advances until paid at such rate per annum as shall be agreed upon from time to time by such Payor and such Payee.

Each Payee is hereby authorized (but not required) to record all loans and advances made by it to any Payor (all of which shall be evidenced by this Note), and all repayments or prepayments thereof, in its books and records, such books and records constituting prima facie evidence of the accuracy of the information contained therein.

Each Payor hereby waives presentment, demand, protest or notice of any kind in connection with this Note. All payments under this Note shall be made without offset, counterclaim or deduction of any kind.

Any person that wishes to become a party to this Note after the date hereof shall become a Payor or Payee, as applicable, hereunder by executing a counterparty hereof or a joinder agreement.  Each party to this Note on the date hereof agrees that any such person, at the time it becomes a Payor or Payee pursuant to the forgoing provisions, be treated as if it were an original party hereto.

Each Payee hereby acknowledges and agrees that the obligations of each Payor hereunder are subject to the subordination provisions contained in (i) the Intercompany Subordination Agreement, as such term (or any similar term) is defined in the Term Loan Credit Agreement, dated as of June 2, 2016 among AdvancePierre Foods Holdings, Inc., AdvancePierre Foods, Inc. (the “Company”), Pierre Holdco, Inc. (“Holdings”), the lenders party thereto from time to time, and Morgan Stanley Senior Funding, Inc., as Administrative Agent, as the same may be amended, modified, extended, renewed, restated, supplemented, restructured and/or refinanced from time to time (the “Term Loan Credit Agreement”), and (ii) the Intercompany Subordination Agreement, as such term (or any similar term) is defined in the ABL Credit Agreement, dated as of October 10, 2012 among the Company, Holdings, the lenders party

thereto from time to time, and Wells Fargo Capital Finance, LLC, as ABL Agent (as the same may be amended, modified, extended, renewed, restated, supplemented, restructured and/or refinanced from time to time, the “ABL Credit Agreement”), and in each case, including any agreement extending the maturity of, refinancing or restructuring all or any portion of, the indebtedness under the Term Loan Credit Agreement or the ABL Credit Agreement, as applicable, or any successor agreements thereto. Capitalized terms used but not defined herein shall have the meanings assigned to such terms under the Term Loan Credit Agreement.

THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF.

[Signature pages follow]

2

IN WITNESS WHEREOF, the undersigned have duly executed this Intercompany Note as of the date first written above.

	[NAME OF PAYOR](1)
	By:
	Name:
	Title:
Pay to the order of:
[NAME OF PAYEE](2)
By:
Name:
Title:

(1)To be executed by AdvancePierre Foods Holdings, Inc. and each of its Subsidiaries existing on the Effective Date as Payor.

(2)To be executed by AdvancePierre Foods Holdings, Inc. and each of its Subsidiaries existing on the Effective Date as Payor.

EXHIBIT K-1

FORM OF INTERCREDITOR AGREEMENT

[See attached.]

AMENDED AND RESTATED INTERCREDITOR AGREEMENT

dated as of June 2, 2016

between

WELLS FARGO CAPITAL FINANCE, LLC,
as Agent
under the ABL Credit Agreement

and

MORGAN STANLEY SENIOR FUNDING, INC.,
as Administrative Agent and as Security Agent
under the Term Loan Credit Agreement

Table of Contents

		Page
Section 1. Definitions		2
1.1	Defined Terms	2
1.2	Terms Generally	19
Section 2. Lien Priorities		20
2.1	Relative Priorities	20
Section 3. Term Loan Priority Collateral		23
3.1	Exercise of Remedies — Prior to Discharge of Term Loan Obligations	23
3.2	Exercise of Remedies — After Discharge of Term Loan Obligations	26
3.3	Payments Over	26
3.4	Other Agreements	26
3.5	Insolvency or Liquidation Proceedings	30
Section 4. ABL Priority Collateral		32
4.1	Exercise of Remedies — Prior to Discharge of ABL Obligations	32
4.2	Exercise of Remedies — After Discharge of ABL Obligations	35
4.3	Payments Over	35
4.4	Other Agreements	35
4.5	Insolvency or Liquidation Proceedings	40
Section 5. General		41
5.1	Amendments; Refinancings	41
5.2	Legends	44
5.3	Options to Purchase Obligations	44
5.4	Insolvency or Liquidation Proceedings Generally	49
5.5	Reliance; Waivers; Etc.	50
Section 6. Cooperation with Respect to ABL Priority Collateral		55
6.1	Consent to License to Use Intellectual Property	55
6.2	Access to Information	56
6.3	Access to Property to Process and Sell Inventory	56
Section 7. Application of Proceeds		58
7.1	Application of Proceeds in Distributions by the Term Loan Security Agent	58
7.2	Application of Proceeds in Distributions by the ABL Agent	59
7.3	Mixed Collateral Proceeds	61
7.4	Tracing of Proceeds in Deposit Accounts	61
Section 8. Miscellaneous		61
8.1	Conflicts	61
8.2	Effectiveness; Continuing Nature of this Agreement; Amendment and Restatement; Severability	61
8.3	Amendments; Waivers	62
8.4	Information Concerning Financial Condition of the Company and its Subsidiaries	63
8.5	Submission to Jurisdiction; Waivers	63
8.6	Notices	64

APF — A&R Intercreditor Agreement

i

8.7	Further Assurances	64
8.8	APPLICABLE LAW	64
8.9	Binding on Successors and Assigns	64
8.10	Specific Performance	64
8.11	Headings	65
8.12	Counterparts	65
8.13	Authorization; No Conflict	65
8.14	No Third Party Beneficiaries	65
8.15	Provisions Solely to Define Relative Rights	65
8.16	Additional Grantors	66
8.17	Avoidance Issues	66
8.18	Subrogation	66
8.19	Effectiveness in Insolvency or Liquidation Proceedings	67
Exhibit A	Form of Intercreditor Agreement Joinder
Exhibit B	Form of Intercreditor Agreement Acknowledgement

ii

This AMENDED AND RESTATED INTERCREDITOR AGREEMENT, dated as of June 2, 2016 (as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms hereof, this “Agreement”), is made by and between WELLS FARGO CAPITAL FINANCE, LLC (in its individual capacity, and any successor thereto by merger, consolidation or otherwise, “WFCF”), as ABL Agent (as defined below), and MORGAN STANLEY SENIOR FUNDING, INC. (“MSSF”), as Term Loan Administrative Agent and Term Loan Security Agent (each term as defined below), and is acknowledged by ADVANCEPIERRE FOODS HOLDINGS, INC., a Delaware corporation (“Parent”), PIERRE HOLDCO, INC., a Delaware corporation (“Holdings”), ADVANCEPIERRE FOODS, INC., a Delaware corporation (the “Company”), and certain other GRANTORS (as defined in Section 1.1).  Capitalized terms used herein but not otherwise defined herein shall have the meanings set forth in Section 1 below.

RECITALS:

WHEREAS, Company has previously entered into that certain Second Amended and Restated Credit Agreement, dated as of October 10, 2012 (as amended pursuant to that Amendment No. One to Second Amended and Restated Credit Agreement, dated as of January 29, 2015, and as otherwise amended, supplemented or modified from time to time prior to the date hereof, the “Prior ABL Credit Agreement”), made by and among the Company, as borrower, the lenders from time to time party thereto, and WFCF, as agent for such lenders;

WHEREAS, Company has previously entered into that certain First-Lien Credit Agreement, dated as of October 10, 2012 (as amended, supplemented or modified from time to time prior to the date hereof, the “Prior First-Lien Credit Agreement”), made by and among Holdings, the Company, as borrower, the lenders from time to time party thereto, and Deutsche Bank Trust Company Americas (“Deutsche Bank”), as administrative agent and security agent for such lenders;

WHEREAS, Company has previously entered into that certain Second-Lien Credit Agreement, dated as of October 10, 2012 (as amended, supplemented or modified from time to time prior to the date hereof, the “Prior Second-Lien Credit Agreement”), made by and among Holdings, the Company, as borrower, the lenders from time to time party thereto, and Deutsche Bank, as administrative agent and security agent for such lenders;

WHEREAS, concurrently with the execution and delivery of the Prior ABL Credit Agreement, the Prior First-Lien Credit Agreement and the Prior Second-Lien Credit Agreement, the Company entered into that certain Intercreditor Agreement, dated as of October 10, 2012 (as amended, supplemented or modified from time to time prior to the date hereof, the “Prior Intercreditor Agreement”), made by and among Holdings, the Company, the subsidiaries of the Company party thereto as grantors, WFCF (as agent for the lenders under the Prior ABL Credit Agreement), Deutsche Bank (as agent for the lenders under the Prior First-Lien Credit Agreement), and Deutsche Bank (as agent for the lenders under the Prior Second-Lien Credit Agreement);

WHEREAS, concurrently with the execution and delivery of this Agreement, the Company has entered into Amendment Number Three to Second Amended and Restated Credit Agreement, dated as of the date hereof (the “ABL Amendment Agreement”), among the Company, as borrower, the lenders party thereto (the “ABL Lenders”), and WFCF, as agent for the ABL Lenders (in such capacity and together with its successors and assigns in such capacity, the “ABL Agent”), which ABL Amendment Agreement amends the Prior ABL Credit Agreement (the Prior ABL Credit Agreement, as so amended by the ABL Amendment Agreement, and as it may be as further amended, amended and restated, supplemented, otherwise modified and/or Refinanced from time, the “ABL Credit Agreement”);

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WHEREAS, concurrently with the execution and delivery of this Agreement, the Company has entered into a new Term Loan Credit Agreement, dated as of the date hereof (as amended, amended and restated, supplemented, otherwise modified and/or Refinanced from time to time, the “Term Loan Credit Agreement”; and together with the ABL Credit Agreement, the “Credit Agreements”), among Parent, Holdings, the Company, as borrower, the lenders from time to time party thereto, MSSF, as administrative agent (in such capacity and together with its successors (by merger, consolidation or otherwise) and assigns in such capacity, the “Term Loan Administrative Agent”; the Term Loan Administrative Agent and the ABL Agent, the “Administrative Agents”), and MSSF, as security agent (in such capacity and together with its successors (by merger, consolidation or otherwise) and assigns in such capacity, the “Term Loan Security Agent”; the Term Loan Security Agent and the ABL Agent, the “Security Agents”), and the proceeds from such Term Loan Credit Agreement were applied to (i) repay in full all outstanding obligations under the Prior Second-Lien Credit Agreement, whereupon the Prior Intercreditor Agreement terminated with respect to the “Second-Lien Security Agent”, the “Second-Lien Secured Parties” and the “Second-Lien Obligations” (each as defined in the Prior Intercreditor Agreement) pursuant to Section 8.2(b)(iii) of the Prior Intercreditor Agreement, and (ii) repay in full all outstanding obligations under the Prior First-Lien Credit Agreement, whereupon the Prior Intercreditor Agreement terminated with respect to the “First-Lien Security Agent”, the “First-Lien Secured Parties” and the “First-Lien Obligations” (each as defined in the Prior Intercreditor Agreement) pursuant to Section 8.2(b)(ii) of the Prior Intercreditor Agreement;

WHEREAS, pursuant to the various ABL Documents (as defined below), (i) the Grantors (other than the Company) have provided guarantees for the ABL Obligations (as defined below), and (ii) the Grantors have provided security for the ABL Obligations;

WHEREAS, pursuant to the various Term Loan Documents (as defined below), (i) the Grantors (other than the Company) have provided guarantees for the Term Loan Obligations (as defined below), and (ii) the Grantors have provided security for the Term Loan Obligations;

WHEREAS, Parent, Holdings, the Company and the other Grantors intend to secure the ABL Obligations under the ABL Credit Agreement and any other ABL Documents (including any Permitted Refinancing thereof (as defined below)) with a First Priority Lien (as defined below) on the ABL Priority Collateral (as defined below) and a Second Priority Lien (as defined below) on the Term Loan Priority Collateral (as defined below); and

WHEREAS, Parent, Holdings, the Company and the other Grantors intend to secure the Term Loan Obligations under the Term Loan Credit Agreement and any other Term Loan Documents (including any Permitted Refinancing thereof) with a First Priority Lien on the Term Loan Priority Collateral and a Second Priority Lien on the ABL Priority Collateral;

NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto agree as follows:

Section 1.  Definitions.

1.1Defined Terms.  The following terms when used in this Agreement, including its introductory paragraph and recitals, shall have the following meanings:

“ABL Agent” shall have the meaning set forth in the recitals hereto and includes any New ABL Agent to the extent set forth in Section 4.4(h).

“ABL Bank Product Agreements” shall mean “Bank Product Agreements” (as that term

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is (and the component definitions as used therein are) defined in the ABL Credit Agreement).

“ABL Bank Product Creditor” shall mean the “Bank Product Provider” (as that term is (and the component definitions as used therein are) defined in the ABL Credit Agreement).

“ABL Bank Product Obligations” shall mean the “Bank Product Obligations” (as that term is defined in the ABL Credit Agreement).

“ABL Collateral Priority Lien” shall have the meaning set forth in Section 4.4(a)(iv).

“ABL Credit Agreement” shall have the meaning set forth in the recitals hereto.

“ABL Credit Bid Rights” shall mean, in respect of any order relating to a sale of assets constituting Term Loan Priority Collateral in any Insolvency or Liquidation Proceeding, that (i) such order grants the ABL Agent and the ABL Secured Parties (individually and in any combination) the right to bid at the sale of such assets and the right to offset its claims secured by ABL Liens upon such assets against the purchase price of such assets if (A) the bid of the ABL Agent or such ABL Secured Parties is the highest bid or otherwise determined by a court to be the best offer at a sale, (B) the ABL Agent or such ABL Secured Parties provide evidence of financing adequate to close the sale and (C) the bid of the ABL Agent or such ABL Secured Parties includes a cash purchase price component payable at the closing of the sale in an amount that would be sufficient on the date of the closing of the sale, if such amount were applied to such payment on such date, to pay all unpaid Term Loan Priority Obligations (except unasserted contingent obligations in respect of indemnities and expense reimbursements) and to satisfy all Liens entitled to priority over the Term Loan Liens that attach to the proceeds of the sale, and such order requires such amount to be so applied and (ii) such order allows the claims of the ABL Agent and the ABL Secured Parties in such Insolvency or Liquidation Proceeding to the extent required for the grant of such rights.

“ABL Debt Cap” means, as of any date of determination, an amount equal to the greater of (a) the maximum aggregate principal amount of “Indebtedness” (as defined in the Term Loan Credit Agreement) permitted to be outstanding under the “ABL Loan Documents” under the terms of, and as defined in, the Term Loan Credit Agreement plus, without duplication, the maximum aggregate principal amount of “Indebtedness” (as defined in the Term Loan Credit Agreement) secured by the Collateral on a pari passu basis with the ABL Obligations that is permitted to be outstanding under the terms of the Term Loan Credit Agreement, as determined under the terms of the Term Loan Credit Agreement as in effect on such date of determination, and (b) the amount that would be determined under the preceding clause (a) if such amount were determined under the terms of the Term Loan Credit Agreement as in effect on the date of this Agreement.

“ABL DIP Financing” shall have the meaning set forth in Section 4.5(a).

“ABL Documents” shall mean (x) the ABL Credit Agreement and the other “Loan Documents” (as defined in the ABL Credit Agreement), (y) the ABL Bank Product Agreements and (z) each of the other agreements, documents and instruments providing for or evidencing any ABL Obligations (including any Permitted Refinancing of any ABL Obligations), together with any amendments, replacements, modifications, extensions, renewals or supplements to, or restatements of, any of the foregoing in accordance with the terms hereof and thereof (but excluding, for the avoidance of doubt, any documents entered into in connection with an ABL DIP Financing or a Term Loan DIP Financing).

“ABL Lenders” shall have the meaning set forth in the recitals hereto.

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“ABL Lien” shall mean any Lien created by the ABL Documents.

“ABL Notice” shall have the meaning set forth in Section 3.1(a)(i).

“ABL Obligations” shall mean (a) all obligations (including guaranty obligations) of every nature of each Grantor from time to time owed to the ABL Secured Parties or any of them under any ABL Document (including any ABL Document in respect of a Permitted Refinancing of any ABL Obligations), whether for principal, premium, interest (including interest which, but for the filing of a petition in bankruptcy with respect to Parent or any of its Subsidiaries, would have accrued on any ABL Obligation (including any Permitted Refinancing of any ABL Obligations and any “Increase” (as defined in the ABL Credit Agreement as in effect on the date hereof)) at the rate provided in the respective documentation, whether or not a claim is allowed against such Person for such interest in the related bankruptcy proceeding), reimbursement of amounts drawn under (and obligations to cash collateralize) letters of credit, fees, expenses, indemnification or otherwise, (b) all ABL Bank Product Obligations and (c) any obligations in respect of Additional Debt, which are designated as “ABL Obligations” pursuant to Section 8.3(b).

“ABL Permitted Liens” shall mean the “Permitted Liens” under, and as defined in, the ABL Credit Agreement (as in effect on the date hereof).

“ABL Priority Collateral” shall mean all of the following Collateral and all interests of each Grantor in the following Collateral, in each case whether now owned or existing or hereafter acquired or arising and wherever located, including (1) all rights of each Grantor to receive moneys due and to become due under or pursuant to the following, (2) all rights of each Grantor to receive return of any premiums for or proceeds of any insurance, indemnity, warranty or guaranty with respect to the following or to receive condemnation proceeds with respect to the following, (3) all claims of each Grantor for damages arising out of or for breach of or default under any of the following, and (4) all rights of each Grantor to terminate, amend, supplement, modify or waive performance under any of the following, to perform thereunder and to compel performance and otherwise exercise all remedies thereunder:

(i)all Accounts, but for purposes of this clause (i) excluding rights to payment for any property which specifically constitutes Term Loan Priority Collateral (and not by virtue of clause (x) of the definition thereof) which has been or is to be sold, leased, licensed, assigned or otherwise disposed of; provided, however, that all rights to payment arising from any sale of Inventory shall constitute ABL Priority Collateral;

(ii)all Chattel Paper;

(iii)all Deposit Accounts and all cash, checks, other negotiable instruments, funds and other property held therein or credited thereto, and all Money (in each case, other than the Asset Sale Proceeds Account, and all cash, checks, securities, financial assets or other property held in the Asset Sale Proceeds Account or credited to the Asset Sale Proceeds Account which constitute Term Loan Priority Collateral and all identifiable proceeds of any Term Loan Priority Collateral);

(iv)all Inventory;

(v)to the extent evidencing or governing any of the items referred to in the preceding clauses (i) through (iv), all General Intangibles and Negotiable Collateral; provided that to the extent any of the foregoing also relates to Term Loan Priority Collateral, only that

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portion related to the items referred to in the preceding clauses (i) through (iv) as being included in the ABL Priority Collateral shall be included in the ABL Priority Collateral;

(vi)to the extent relating to any of the items referred to in the preceding clauses (i) through (v), all Insurance; provided that to the extent any of the foregoing also relates to Term Loan Priority Collateral, only that portion related to the items referred to in the preceding clauses (i) through (v) as being included in the ABL Priority Collateral shall be included in the ABL Priority Collateral;

(vii)to the extent relating to any of the items referred to in the preceding clauses (i) through (vi), all Supporting Obligations; provided that to the extent any of the foregoing also relates to Term Loan Priority Collateral only that portion related to the items referred to in the preceding clauses (i) through (vi) as being included in the ABL Priority Collateral shall be included in the ABL Priority Collateral;

(viii)to the extent relating to any of the items referred to in the preceding clauses (i) through (vii), all Commercial Tort Claims; provided that to the extent any of the foregoing also relates to Term Loan Priority Collateral, only that portion related to the items referred to in the preceding clauses (i) through (vii) as being included in the ABL Priority Collateral shall be included in the ABL Priority Collateral;

(ix)all Books, Records and Collateral Records relating to the foregoing (including, without limitation, all books, databases, customer lists, engineer drawings, Records and Collateral Records, whether tangible or electronic, which contain any information relating to any of the foregoing); and

(x)all Cash Proceeds and, solely to the extent not constituting Term Loan Priority Collateral, non-Cash Proceeds, products, accessions, rents and profits of or in respect of any of the foregoing (including, without limitation, all insurance proceeds) and all collateral security, guarantees and other Collateral Support given by any Person with respect to any of the foregoing;

provided, however, that (i) if Collateral of any type is received in exchange for ABL Priority Collateral in accordance with the terms of the ABL Credit Agreement, such Collateral will be treated as ABL Priority Collateral and (ii) if Collateral of any type is received in exchange for Term Loan Priority Collateral in accordance with the terms of the Term Loan Credit Agreement, such Collateral will be treated as Term Loan Priority Collateral.

“ABL Priority Collateral Enforcement Actions” shall have the meaning set forth in Section 6.3(a).

“ABL Priority Collateral Processing and Sale Period” shall have the meaning set forth in Section 6.3(a).

“ABL Priority Obligations” means all ABL Obligations exclusive of the Excess ABL Obligations, which Excess ABL Obligations shall be excluded from (and shall not constitute) ABL Priority Obligations.

“ABL Secured Parties” shall mean (a) the lenders (including, in any event, each letter of credit issuer and each swingline lender), agents and arrangers under the ABL Credit Agreement and shall include all former lenders, agents and arrangers under the ABL Credit Agreement to the extent that any ABL Obligations owing to such Persons were incurred while such Persons were lenders, agents or

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arrangers under the ABL Credit Agreement and such ABL Obligations have not been paid or satisfied in full, (b) the ABL Bank Product Creditors, and (c) all new ABL Secured Parties to the extent set forth in Section 4.4(h).

“ABL Security Documents” shall mean the “Security Agreement” (as defined in the ABL Credit Agreement) and any other agreement, document or instrument pursuant to which a Lien is granted securing any ABL Obligations (including any Permitted Refinancing of any ABL Obligations) or under which rights or remedies with respect to such Liens are governed, together with any amendments, replacements, modifications, extensions, renewals or supplements to, or restatements of, any of the foregoing in accordance herewith; provided that, notwithstanding the foregoing, the ABL Credit Agreement shall not be an ABL Security Document.

“ABL Standstill Period” shall have the meaning set forth in Section 3.1(a).

“Account” shall mean an account (as that term is defined in Article 9 of the UCC).

“Additional Debt” shall have the meaning set forth in Section 8.3(b).

“Administrative Agents” shall have the meaning set forth in the recitals hereto.

“Agents” shall mean collectively, the ABL Agent and the Term Loan Agents, and “Agent” shall mean any one of them.

“Agreement” shall have the meaning set forth in the introductory paragraph hereof.

“Asset Sale Proceeds Account” shall mean one or more Deposit Accounts or Securities Accounts, together with the cash, cash equivalents, financial assets, negotiable instruments and other evidence of payment, and other funds on deposit therein or credited thereto, to the extent consisting solely of Term Loan Priority Collateral.

“Bankruptcy Code” shall mean Title 11 of the United States Code entitled “Bankruptcy,” as now and hereafter in effect, or any successor statute.

“Bankruptcy Law” shall mean the Bankruptcy Code, and any similar federal or state or non-U.S. law or statute for the supervision, administration or relief of debtors, including, without limitation, bankruptcy or insolvency laws.

“Books” shall mean books and records (including each Grantor’s Records indicating, summarizing, or evidencing such Grantor’s assets (including the Collateral) or liabilities, each Grantor’s Records relating to such Grantor’s business operations or financial condition, and each Grantor’s goods or General Intangibles related to such information).

“Business Day” shall mean any day except Saturday, Sunday and any day which shall be in New York, New York, a legal holiday or a day on which banking institutions are authorized or required by law or other government action to close.

“Capital Lease” shall mean, as applied to any Person, any lease of any property (whether real, person or mixed) by that Person as lessee that, in conformity with GAAP, is or should be accounted for as a capital lease on the balance sheet of that Person; provided that whether such lease is a Capital Lease shall be determined according to GAAP as in effect on the date hereof.

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“Capital Stock” shall mean all shares, options, warrants, interests, participations or other equivalents (regardless of how designated) of or in a Person, whether voting or nonvoting, including common stock, preferred stock, or any other “equity security” (as such term is defined in Rule 3a11-1 of the General Rules and Regulations promulgated by the SEC under the Securities Exchange Act of 1934, as in effect from time to time).

“Capitalized Lease Obligations” shall mean, with respect to any Person, all obligations under Capital Leases of such Person, in each case taken at the amount thereof accounted for as indebtedness in accordance with GAAP; provided that in determining whether a Capital Lease constitutes a Capitalized Lease Obligation, and to what extent, GAAP as in effect on the date hereof shall be utilized.

“Cash Proceeds” shall mean all proceeds of any Collateral received by any Grantor or Secured Party consisting of cash and checks.

“Chattel Paper” shall mean chattel paper (as that term is defined in the UCC) and includes tangible chattel paper and electronic chattel paper.

“Collateral” shall mean all property (whether real, personal, movable or immovable) now or hereafter acquired and wherever located (and proceeds thereof) with respect to which any security interests have been granted (or purported to be granted) by any Grantor pursuant to any Security Document.

“Collateral Records” shall mean all books, records, ledger cards, files, correspondence, customer lists, blueprints, technical specifications, manuals, computer software, computer printouts, tapes, disks and related data processing software and similar items that at any time evidence or contain information relating to any of the Collateral or are otherwise necessary or helpful in the collection thereof or realization thereupon.

“Collateral Support” shall mean all property (real or personal) assigned, hypothecated or otherwise securing any Collateral and shall include any security agreement or other agreement granting a lien or security interest in such real or personal property.

“Commercial Tort Claims” shall mean all commercial tort claims (as that term is defined in Article 9 of the UCC).

“Company” shall have the meaning set forth in the introductory paragraph hereto.

“Comparable ABL Security Document” shall mean, in relation to any Collateral subject to any Lien created under any Term Loan Security Document, that ABL Document which creates (or purports to create) a Lien on the same Collateral, granted by the same Grantor, as the same may be amended, amended and restated, modified or otherwise supplemented from time to time in accordance with the terms hereof, thereof and the Credit Agreements.

“Comparable Term Loan Security Document” shall mean, in relation to any Collateral subject to any Lien created under any ABL Security Document, that Term Loan Document which creates (or purports to create) a Lien on the same Collateral, granted by the same Grantor, as the same may be amended, amended and restated, modified or otherwise supplemented from time to time in accordance with the terms hereof, thereof and the Credit Agreements.

“Contingent Obligation” shall mean, as to any Person, any obligation of such Person as a result of such Person being a general partner of any other Person, unless the underlying obligation is

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expressly made non-recourse as to such general partner, and any obligation of such Person guaranteeing or intended to guarantee any Indebtedness, leases, dividends or other obligations (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, any obligation of such Person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (x) for the purchase or payment of any such primary obligation or (y) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the holder of such primary obligation against loss in respect thereof; provided, however, that the term “Contingent Obligation” shall not include endorsements of instruments for deposit or collection in the ordinary course of business.  The amount of any Contingent Obligation shall be deemed to be an amount equal to the lesser of (x) the stated or determinable amount of the primary obligation in respect of which such Contingent Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith and (y) the stated amount of such Contingent Obligation.

“Contracts” shall mean all contracts between a Grantor and one or more additional parties.

“Copyrights” shall mean any and all copyrights and copyright registrations, including (i) all reissues, continuations, extensions or renewals thereof, (ii) all income, license fees, royalties, damages and payments now and hereafter due or payable under and with respect thereto, including payments under all licenses entered into in connection therewith and damages and payments for past, present or future infringements thereof, (iii) the right to sue for past, present and future infringements thereof and (iv) all rights corresponding thereto throughout the world.

“Credit Agreements” shall have the meaning set forth in the recitals hereto.

“Credit Bid Rights” shall mean each of the Term Loan Credit Bid Rights and the ABL Credit Bid Rights, as the case may be.

“Defaulting ABL Secured Party” shall have the meaning set forth in Section 5.3(b).

“Defaulting Term Loan Secured Party” shall have the meaning set forth in Section 5.3(a).

“Deposit Account” shall mean a deposit account (as that term is defined in the UCC).

“Designated Oklahoma Property” shall mean that certain real property, owned by Advance Food Company, LLC and located at 202-204, 206 E. Pine Avenue, Enid, Oklahoma 73701.

“Deutsche Bank” shall have the meaning set forth in the recitals hereto.

“Discharge of ABL Obligations” shall mean, except to the extent otherwise provided in Section 4.4(h), the occurrence of all of the following:

(i)termination or expiration of all commitments to extend credit that would constitute ABL Priority Obligations (but excluding, for the avoidance of doubt, the termination of any ABL Bank Product Agreements, so long as the ABL Priority Obligations in respect thereof remain subject to the requirements of the succeeding clause (iv));

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(ii)payment in full in cash of the principal of and interest and premium (if any) on all ABL Priority Obligations (other than any undrawn letters of credit and any ABL Bank Product Obligations);

(iii)discharge or cash collateralization (at no more than 105% of the aggregate undrawn amount) of all outstanding letters of credit constituting ABL Priority Obligations or, if acceptable to ABL Agent in its sole discretion, issuance of “back to back” letters of credit as support for such letters of credit in a manner satisfactory to the ABL Agent;

(iv)discharge or cash collateralization of all ABL Bank Product Obligations in the manner required pursuant to the terms of the ABL Credit Agreement (or, if acceptable to ABL Agent in its sole discretion, issuance of letters of credit to support such ABL Bank Product Obligations in a manner satisfactory to the ABL Agent); and

(v)payment in full in cash of all other ABL Priority Obligations that are outstanding and unpaid at the time the termination, expiration, discharge and/or cash collateralization set forth in clauses (i) through (iv) above have occurred (other than any obligations for taxes, costs, indemnifications and other contingent liabilities, in each case, in respect of which no claim or demand for payment has been made at such time).

“Discharge of Term Loan Obligations” shall mean, except to the extent otherwise provided in Section 3.4(h), the occurrence of all of the following:

(i)termination or expiration of all commitments to extend credit that would constitute Term Loan Priority Obligations, and termination or cash collateralization in a manner reasonably acceptable to the Term Loan Hedging Creditors party thereto of all Term Loan Secured Hedging Agreements (or, if acceptable to Term Loan Agent and each applicable Term Loan Hedging Creditor, in each case in such Person’s sole discretion, issuance of letters of credit to support such Term Loan Secured Hedging Agreements in a manner satisfactory to the Term Loan Administrative Agent and each applicable Term Loan Hedging Creditor);

(ii)payment in full in cash of the principal of and interest and premium (if any) on all Term Loan Priority Obligations; and

(iii)payment in full in cash of all other Term Loan Priority Obligations that are outstanding and unpaid at the time the termination, expiration and/or discharge set forth in clauses (i) and (ii) above have occurred (other than any obligations for taxes, costs, indemnifications and other contingent liabilities, in each case, in respect of which no claim or demand for payment has been made at such time).

“Domain Names” means all Internet domain names and associated uniform resource locator addresses.

“Domestic Subsidiary” of any Person shall mean any Subsidiary of such Person incorporated or organized in the United States or any State thereof or the District of Columbia.

“Eligible ABL Purchaser” shall have the meaning set forth in Section 5.3(a).

“Eligible Term Loan Purchaser” shall have the meaning set forth in Section 5.3(b).

“Equipment” shall mean (i) equipment (as that term is defined in the UCC), (ii) all

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machinery, manufacturing equipment, data processing equipment, computers, office equipment, furnishings, furniture, appliances, fixtures and tools (in each case, regardless of whether characterized as equipment under the UCC) and (iii) all accessions or additions thereto, all parts thereof, whether or not at any time of determination incorporated or installed therein or attached thereto, and all replacements therefor, wherever located, now or hereafter existing, including any fixtures.

“Excess ABL Obligations” means the sum of (a) the portion of the principal amount of the loans outstanding under the ABL Documents and the undrawn amount of all outstanding letters of credit issued under the ABL Documents that is in excess of the ABL Debt Cap, plus (b) the portion of interest and fees on account of such portion of the loans and letters of credit described in clause (a) of this definition.

“Excess Term Loan Obligations” means the sum of (a) the portion of the principal amount of the loans outstanding under the Term Loan Documents in excess of the Term Loan Debt Cap, plus (b) the portion of interest and fees on account of such portion of the loans described in clause (a) of this definition.

“Excluded Subsidiary” shall have the meaning provided in the Term Loan Credit Agreement (as in effect on the date hereof).

“First Priority” shall mean:

(i)with respect to any Lien purported to be created on any ABL Priority Collateral pursuant to any ABL Security Document, that such Lien is prior in right to any other Lien thereon, other than any ABL Permitted Liens (excluding ABL Permitted Liens of the type described in clause (q) of the definition of “Permitted Lien” of the ABL Credit Agreement as in effect on the date hereof) applicable to such ABL Priority Collateral which have priority over the respective Liens on such ABL Priority Collateral created pursuant to the relevant ABL Security Document; and

(ii)with respect to any Lien purported to be created on any Term Loan Priority Collateral pursuant to any Term Loan Security Document, that such Lien is prior in right to any other Lien thereon, other than any Term Loan Permitted Liens (excluding Term Loan Permitted Liens of the type described in clause (y) of Section 9.01(d) of the Term Loan Credit Agreement as in effect on the date hereof) applicable to such Term Loan Priority Collateral which have priority over the respective Liens on such Term Loan Priority Collateral created pursuant to the relevant Term Loan Security Document.

“Fixtures” shall mean all fixtures (as that term is defined in Article 9 of the UCC).

“GAAP” shall mean generally accepted accounting principles in the United States of America as in effect from time to time.

“General Intangibles” shall mean general intangibles (as that term is defined in the UCC) and includes payment intangibles, software, contract rights, rights to payment, rights under Interest Rate Protection Agreements or Other Hedging Agreements (including the right to receive payment on account of the termination (voluntarily or involuntarily) of any Interest Rate Protection Agreements or Other Hedging Agreement), rights arising under common law, statutes, or regulations, choses or things in action, goodwill (including the goodwill associated with any Trademark), Intellectual Property, purchase orders, customer lists, monies due or recoverable from pension funds, route lists, rights to payment and other rights under any royalty or licensing agreements, including Intellectual Property Licenses,

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infringement claims, computer programs, information contained on computer disks or tapes, software, literature, reports, catalogs, pension plan refunds, pension plan refund claims, insurance premium rebates, tax refunds, and tax refund claims, interests in a partnership or limited liability company which do not constitute a security under Article 8 of the UCC and any other personal property other than Commercial Tort Claims, money, Accounts, Chattel Paper, Deposit Accounts, goods, Investment Related Property, Negotiable Collateral, and oil, gas or other minerals before extraction.

“Grantors” shall mean Parent, Holdings, the Company and each of the Company’s Wholly-Owned Subsidiaries that is a Domestic Subsidiary (other than Excluded Subsidiaries) that have executed and delivered, or may, from time to time, hereafter execute and deliver, an ABL Security Document or a Term Loan Security Document.

“Holdings” shall have the meaning set forth in the introductory paragraph hereto.

“Indebtedness” shall mean, as to any Person, without duplication, (i) all indebtedness of such Person for borrowed money or for the deferred purchase price of property or services, (ii) the maximum amount available to be drawn or paid under all letters of credit, bankers’ acceptances, bank guaranties, surety and appeal bonds and similar obligations issued for the account of such Person, and all unpaid drawings and unreimbursed payments in respect of such letters of credit, bankers’ acceptances, bank guaranties, surety and appeal bonds and similar obligations, (iii) all indebtedness of the types described in clause (i), (ii), (iv), (v), (vi) or (vii) of this definition secured by any Lien on any property owned by such Person, whether or not such indebtedness has been assumed by such Person (provided that, if the Person has not assumed or otherwise become liable in respect of such indebtedness, such indebtedness shall be deemed to be in an amount equal to the fair market value of the property to which such Lien relates as determined in good faith by such Person), (iv) all Capitalized Lease Obligations of such Person, (v) all obligations of such Person to pay a specified purchase price for goods or services, whether or not delivered or accepted, i.e., take-or-pay and similar obligations, (vi) all Contingent Obligations of such Person, (vii) all obligations under any Interest Rate Protection Agreement, any Other Hedging Agreement or under any similar type of agreement and (viii) in the case of Indebtedness under the ABL Documents, any ABL Bank Product Obligations.

“Insolvency or Liquidation Proceeding” shall mean any of the following:  (i) the filing by any Grantor of a voluntary petition in bankruptcy under any provision of any Bankruptcy Law (including, without limitation, the Bankruptcy Code) or a petition to take advantage of any receivership or insolvency laws, including, without limitation, any petition seeking the dissolution, winding up, total or partial liquidation, reorganization, composition, arrangement, adjustment or readjustment or other relief of such Grantor, such Grantor’s debts or such Grantor’s assets or the appointment of a trustee, receiver, liquidator, custodian or similar official for such Grantor or a material part of such Grantor’s property; (ii) the appointment of a receiver, liquidator, trustee, custodian or other similar official for such Grantor or all or a material part of such Grantor’s assets; (iii) the filing of any petition against such Grantor under any Bankruptcy Law (including, without limitation, the Bankruptcy Code) or other receivership or insolvency law, including, without limitation, any petition seeking the dissolution, winding up, total or partial liquidation, reorganization, composition, arrangement, adjustment or readjustment or other relief of such Grantor, such Grantor’s debts or such Grantor’s assets or the appointment of a trustee, receiver, liquidator, custodian or similar official for such Grantor or a material part of such Grantor’s property; or (iv) the general assignment by such Grantor for the benefit of creditors or any other marshalling of the assets and liabilities of such Grantor.

“Insurance” shall mean (i) all insurance policies covering any or all of the Collateral (regardless of whether the ABL Agent or the Term Loan Security Agent is the loss payee or additional insured thereof) and (ii) any key man life insurance policies.

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“Intellectual Property” shall mean any and all Intellectual Property Licenses, Patents, Copyrights, Trademarks, Domain Names and all confidential and proprietary information, including trade secrets, know-how, inventions (whether or not patentable), algorithms, software programs (including source code and object code), processes, product designs, industrial designs, blueprints, drawings, data, customer lists, specifications, documentations, programming materials, reports, catalogs, literature and any other forms of technology of any kind.

“Intellectual Property Licenses” shall mean license agreements granting rights under or interests in any patent, trademark, copyright or other intellectual property, including software license agreements with any other party, whether the applicable Grantor is a licensee or licensor under any such license agreement (but excluding any off-the-shelf software license agreement).

“Intercreditor Agreement Acknowledgement” shall mean, collectively, the initial acknowledgement of this Agreement delivered by each of the Grantors on the Effective Date, and each other acknowledgement of this Agreement by a Grantor made following the Effective date in substantially in the form of Exhibit B hereto

“Intercreditor Agreement Joinder” shall mean an agreement substantially in the form of Exhibit A hereto.

“Interest Rate Protection Agreement” shall mean any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedging agreement, interest rate floor agreement or other similar agreement or arrangement.

“Inventory” shall mean inventory (as that term is defined in the UCC).

“Investment Related Property” shall mean (i) any and all investment property (as that term is defined in the UCC), and (ii) any and all of the following (regardless of whether classified as investment property under the UCC):  all Pledged Interests, Pledged Operating Agreements, and Pledged Partnership Agreements.

“Lien” shall mean any mortgage, deed of trust, pledge, hypothecation, assignment, deposit arrangement, security interest, encumbrance, charge, lien (statutory or other), charge, preference, priority or other security agreement of any kind or nature whatsoever (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement, any financing or similar statement or notice filed under the UCC or any similar recording or notice statute or other law, and any lease having substantially the same effect as the foregoing).

“Maximum Exposure Amount” shall mean (a) with respect to any ABL DIP Financing, the sum of:  (i) the portion of the ABL Debt Cap outstanding and/or committed immediately prior to obtaining such ABL DIP Financing and (ii) $250,000,000, and (b) with respect to any Term Loan DIP Financing, the sum of:  (i) the portion of the Term Loan Debt Cap outstanding and/or committed immediately prior to obtaining such Term Loan DIP Financing and (ii) $250,000,000.

“Money” shall mean money (as that term is defined in the UCC).

“MSSF” shall have the meaning set forth in the introductory paragraph hereof.

“Negotiable Collateral” shall mean letters of credit, letter-of-credit rights, instruments, promissory notes, drafts and documents (as each such term is defined in the UCC).

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“New ABL Agent” shall have the meaning set forth in Section 4.4(h).

“New Term Loan Agent” shall have the meaning set forth in Section 3.4(h).

“Other Hedging Agreements” shall mean any foreign exchange contracts, currency swap agreements, commodity agreements or other similar agreements or arrangements designed to protect against fluctuations in currency values or commodity values.

“Parent” shall have the meaning set forth in the introductory paragraph hereof.

“Patents” shall mean patents and patent applications, including (i) all renewals, continuations, divisionals, continuations-in-part, reissues and examinations thereof, (ii) all income, royalties, damages and payments now and hereafter due or payable under and with respect thereto, including payments under all licenses entered into in connection therewith and damages and payments for past, present or future infringements thereof, (iii) the right to sue for past, present and future infringements thereof, and (iv) all rights corresponding thereto throughout the world.

“Permitted Delay” shall mean any delay or postponement of compliance with any Grantor’s obligation to take, facilitate or permit any steps necessary to establish or perfect a security interest, or to establish a certain priority with respect to a security interest, in any Collateral, pursuant to any grace period or post-closing compliance period under a Security Document or a Credit Agreement, including any permitted extensions thereof approved by the applicable Agent party to such Security Document or Credit Agreement.

“Permitted Refinancing” shall mean, with respect to any Indebtedness under the Term Loan Documents or the ABL Documents, the Refinancing of such Indebtedness (“Refinancing Indebtedness”) in accordance with the requirements of Section 5.1(a) or 5.1(c), as the case may be.

“Person” shall mean any individual, partnership, joint venture, firm, corporation, limited liability company, association, trust or other enterprise or any government or political subdivision or any agency, department or instrumentality thereof.

“Pledged ABL Priority Collateral” shall have the meaning set forth in Section 4.4(f).

“Pledged Debt” shall mean all Indebtedness owed to a Grantor issued by the obligors named therein, the instruments evidencing such Indebtedness, and all interest, cash, instruments and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such Indebtedness.

“Pledged Interests” shall mean all of each Grantor’s right, title and interest in and to all of the Capital Stock now or hereafter owned by such Grantor, regardless of class or designation, and all substitutions therefor and replacements thereof, all proceeds thereof and all rights relating thereto, also including any certificates representing the Capital Stock, the right to receive any certificates representing any of the Capital Stock, all warrants, options, share appreciation rights and other rights, contractual or otherwise, in respect thereof and the right to receive all dividends, distributions of income, profits, surplus, or other compensation by way of income or liquidating distributions, in cash or in kind, and all cash, instruments, and other property from time to time received, receivable, or otherwise distributed in respect of or in addition to, in substitution of, on account of, or in exchange for any or all of the foregoing.

“Pledged Operating Agreements” shall mean all of each Grantor’s rights, powers, and

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remedies under any limited liability company operating agreements of each of the Grantors that are limited liability companies.

“Pledged Partnership Agreements” shall mean all of each Grantor’s rights, powers, and remedies under the partnership agreements of each of the Grantors that are partnerships.

“Pledged Term Loan Priority Collateral” shall have the meaning set forth in Section 3.4(f).

“Proceeds” shall mean all of the proceeds (as that term is defined in the UCC) and products, whether tangible or intangible, of any of the foregoing, including proceeds of insurance or Commercial Tort Claims covering or relating to any or all of the foregoing, and any and all Accounts, Books, Chattel Paper, Deposit Accounts, Equipment, General Intangibles, Inventory, Investment Related Property, Negotiable Collateral, Supporting Obligations, Money, or other tangible or intangible property resulting from the sale, lease, license, exchange, collection, or other disposition of any of the foregoing, whatever is collected on, or distributed on account of any of the foregoing, any and all rights arising out of the foregoing, the proceeds of any award in condemnation with respect to any of the foregoing, any rebates or refunds, whether for taxes or otherwise, and all proceeds of any such proceeds, or any portion thereof or interest therein, and the proceeds thereof, claims arising out of the loss, non-conformity, or interference with the use of, defects, or infringement of rights in, or damage to, any of the foregoing, and all proceeds of any loss of, damage to, or destruction of the above, whether insured or not insured, and, to the extent not otherwise included, any indemnity, warranty, insurance, or guaranty payable by reason of loss or non-conformity of, defects or infringement of rights in, or damage to, or otherwise with respect to any of the foregoing.  Without limiting the generality of the foregoing, the term “Proceeds” includes whatever is receivable or received when Investment Property or proceeds are sold, exchanged, collected, or otherwise disposed of, whether such disposition is voluntary or involuntary, and includes proceeds of any indemnity or guaranty payable to any Grantor, the ABL Agent or the Term Loan Security Agent from time to time with respect to any of the Investment Related Property.

“Record” shall mean information that is inscribed on a tangible medium or which is stored in an electronic or other medium that is retrievable in perceivable form.

“Recovery” shall have the meaning set forth in Section 8.17.

“Refinance” shall mean, in respect of any Indebtedness, to refinance, extend, renew, retire, defease, amend, modify, supplement, restructure, replace, refund or repay, or to issue other Indebtedness, in exchange or replacement for such Indebtedness in whole or in part, whether with the same or holders of indebtedness, arrangers, trustees and/or agents.  “Refinanced” and “Refinancing” shall have correlative meanings.

“SEC” shall mean the United States Securities and Exchange Commission and any successor thereto.

“Second Priority” shall mean:

(i)with respect to any Lien purported to be created on any Term Loan Priority Collateral pursuant to the ABL Security Documents, that such Lien is prior in right to any other Lien thereon, other than (x) Liens of the type permitted pursuant to clause (q) of the definition of Permitted Liens in the ABL Credit Agreement as in effect on the date hereof, and (y) Term Loan Permitted Liens of the type permitted to be prior to the Liens on the Term Loan Priority Collateral securing the Term Loan Obligations in accordance with clause (ii) of the definition

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“First Priority” contained herein; and

(ii)with respect to any Lien purported to be created on any ABL Priority Collateral pursuant to the Term Loan Security Documents, that such Lien is prior in right to any other Lien thereon, other than (x) Liens of the type permitted pursuant to clause (y) of Section 9.01(d) of the Term Loan Credit Agreement as in effect on the date hereof, and (y) ABL Permitted Liens of the type permitted to be prior to the Liens on the ABL Priority Collateral securing the ABL Obligations in accordance with clause (i) of the definition “First Priority” contained herein.

“Secured Parties” shall mean, collectively, the ABL Secured Parties and the Term Loan Secured Parties.

“Securities” shall mean all “securities” as such term is defined in Article 8 of the UCC as in effect on the date hereof, any stock, shares, partnership interests, voting trust certificates, certificates of interest or participation in any profit sharing agreement or arrangement, options, warrants, bonds, debentures, notes, or other evidences of indebtedness, secured or unsecured, convertible, subordinated or otherwise, or in general any instruments commonly known as “securities” or any certificates of interest, shares or participations in temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire, any of the foregoing.

“Securities Accounts” shall mean all securities accounts (as that term is defined in Article 8 of the UCC).

“Securities Entitlements” shall mean all securities entitlements (as that term is defined in Article 8 of the UCC).

“Security Agents” shall have the meaning set forth in the recitals hereto.

“Security Document” shall mean any ABL Security Document or any Term Loan Security Document.

“Subsidiary” shall mean, with respect to any Person, any corporation, partnership, limited liability company, association, joint venture or other business entity of which more than 50% of the total voting power of shares of stock or other ownership interests entitled (without regard to the occurrence of any contingency) to vote in the election of the Person or Persons (whether directors, managers, trustees or other Persons performing similar functions) having the power to direct or cause the direction of the management and policies thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof; provided, in determining the percentage of ownership interests of any Person controlled by another Person, no ownership interest in the nature of a “qualifying share” of the former Person shall be deemed to be outstanding.

“Supporting Obligations” shall mean supporting obligations (as such term is defined in the UCC) and includes letters of credit and guaranties issued in support of Accounts, Chattel Paper, documents, General Intangibles, instruments or Investment Related Property.

“Term Loan/ABL Notice” shall have the meaning set forth in Section 4.1(a)(i).

“Term Loan Administrative Agent” shall have the meaning set forth in the recitals hereto.

“Term Loan Agents” shall mean, collectively, the Term Loan Administrative Agent and the Term Loan Security Agent.

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“Term Loan Collateral Priority Lien” shall have the meaning set forth in Section 3.4(a).

“Term Loan Credit Agreement” shall have the meaning set forth in the recitals hereto.

“Term Loan Credit Bid Rights” shall mean, in respect of any order relating to a sale of assets constituting ABL Priority Collateral in any Insolvency or Liquidation Proceeding, that (i) such order grants the Term Loan Security Agent and the Term Loan Secured Parties (individually and in any combination) the right to bid at the sale of such assets and the right to offset its claims secured by Liens upon such assets against the purchase price of such assets if (A) the bid of the Term Loan Security Agent or such Term Loan Secured Parties is the highest bid or otherwise determined by a court to be the best offer at a sale, (B) the Term Loan Security Agent or such Term Loan Secured Parties provide evidence of financing adequate to close the sale and (C) the bid of the Term Loan Security Agent or such Term Loan Secured Parties includes a cash purchase price component payable at the closing of the sale in an amount that would be sufficient on the date of the closing of the sale, if such amount were applied to such payment on such date, to pay or satisfy in full in cash all unpaid ABL Priority Obligations (including the discharge or cash collateralization of all outstanding letters of credit constituting ABL Priority Obligations and all ABL Bank Product Obligations constituting ABL Priority Obligations but excluding unasserted contingent obligations in respect of indemnities and expense reimbursement) and to satisfy all Liens entitled to priority over the ABL Liens that attach to the proceeds of the sale, and such order requires such amount to be so applied and (ii) such order allows the claims of the Term Loan Security Agent and the Term Loan Secured Parties in such Insolvency or Liquidation Proceeding to the extent required for the grant of such rights.

“Term Loan Debt Cap” means an amount equal to (a) $1,300,000,000, plus (b) such additional amounts that are permitted to be incurred by the Company under, or pursuant to, Section 2.14, Section 9.04(p) (to the extent such Indebtedness constitutes Term Loan Obligations or is secured by the Collateral on a pari passu basis with the Term Loan Obligations), Section 9.04(q) (to the extent such Indebtedness constitutes Term Loan Obligations or is secured by the Collateral on a pari passu basis with the Term Loan Obligations) and Section 9.04(t) of the Term Loan Credit Agreement (or any Permitted Refinancing thereof).

“Term Loan DIP Financing” shall have the meaning set forth in Section 3.5(a).

“Term Loan Documents” shall mean (x) the Term Loan Credit Agreement and the other “Credit Documents” (as defined in the Term Loan Credit Agreement), (y) each Term Loan Secured Hedging Agreement and (z) each of the other agreements, documents and instruments providing for or evidencing any Term Loan Obligation (including any Permitted Refinancing of any Term Loan Obligation), together with any amendments, replacements, modifications, extensions, renewals or supplements to, or restatements of, any of the foregoing in accordance with the terms hereof and thereof (but excluding, for the avoidance of doubt, any documents agreement entered into in connection with an ABL DIP Financing or a Term Loan DIP Financing).

“Term Loan Hedging Creditor” shall mean any “Hedging Creditor” (as defined in the Term Loan Credit Agreement (as in effect on the date hereof)).

“Term Loan Lien” shall mean any Lien created by the Term Loan Security Documents.

“Term Loan Obligations” shall mean all obligations (including guaranty obligations) of every nature of each Grantor, from time to time owed to the Term Loan Secured Parties or any of them, under any Term Loan Document (including any Term Loan Document in respect of a Permitted Refinancing of any Term Loan Obligations and any “Incremental Term Loans” (as defined in the Term

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Loan Credit Agreement)), whether for principal, premium, interest (including interest which, but for the filing of a petition in bankruptcy with respect to such Person, would have accrued on any Term Loan Obligation, at the rate provided in the respective documentation whether or not a claim is allowed against such Person for such interest in the related bankruptcy proceeding) (including any Permitted Refinancing of any Term Loan Obligations (other than any Permitted Refinancing designated in writing by the Company in a notice to the Secured Parties as not being secured on a First Priority basis)), payments for early termination of Term Loan Secured Hedging Agreements, fees, expenses, indemnification or otherwise and including any obligations in respect of Additional Debt which are designated as “Term Loan Obligations” pursuant to Section 8.3(b) hereof.

“Term Loan Permitted Liens” shall mean the “Permitted Liens” under, and as defined in, the Term Loan Credit Agreement as in effect on the date hereof.

“Term Loan Priority Collateral” shall mean all of the following Collateral and all interests of each Grantor in the following Collateral, in each case whether now owned or existing or hereafter acquired or arising and wherever located, including (1) all rights of each Grantor to receive moneys due and to become due under or pursuant to the following, (2) all rights of each Grantor to receive return of any premiums for or proceeds of any insurance, indemnity, warranty or guaranty with respect to the following or to receive condemnation proceeds with respect to the following, (3) all claims of each Grantor for damages arising out of or for breach of or default under any of the following, and (4) all rights of each Grantor to terminate, amend, supplement, modify or waive performance under any of the following, to perform thereunder and to compel performance and otherwise exercise all remedies thereunder:

(i)the Asset Sale Proceeds Account;

(ii)all Equipment;

(iii)all Fixtures;

(iv)all General Intangibles, including, without limitation, Contracts (in each case other than General Intangibles evidencing, secured by, or governing ABL Priority Collateral, including, without limitation, ABL Bank Product Agreements);

(v)all Negotiable Collateral (other than Negotiable Collateral evidencing or governing or attached or related to (to the extent so attached or related) ABL Priority Collateral);

(vi)without duplication, all Investment Related Property, all Pledged Debt, all Securities, all Security Entitlements and all Securities Accounts (in each case, other than any Collateral specifically listed as ABL Priority Collateral and other than any Supporting Obligations supporting ABL Priority Collateral);

(vii)all Intellectual Property;

(viii)except to the extent constituting, or relating to, ABL Priority Collateral, all Commercial Tort Claims;

(ix)all real property (including leasehold interests) on which the Grantors are required to provide a Lien to the Term Loan Secured Parties pursuant to the Term Loan Credit Agreement (regardless of whether such Lien has actually been provided) and any title insurance with respect to such real property (other than any title insurance actually obtained by the ABL

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Agent solely in respect of real property acquired after the date hereof and so long as such title insurance is not subject to pro tanto coverage) and the proceeds thereof;

(x)except to the extent constituting, or relating to, the ABL Priority Collateral, all other personal property (whether tangible or intangible) of such Grantor;

(xi)to the extent constituting, or relating to, any of the items referred to in the preceding clauses (i) through (x), all Insurance; provided that to the extent any of the foregoing also relates to ABL Priority Collateral, only that portion related to the items referred to in the preceding clauses (i) through (x) as being included in the Term Loan Priority Collateral shall be included in the Term Loan Priority Collateral;

(xii)to the extent relating to any of the items referred to in the preceding clauses (i) through (xi), all Supporting Obligations; provided that to the extent any of the foregoing also relates to ABL Priority Collateral, only that portion related to the items referred to in the preceding clauses (i) through (xi) as being included in the Term Loan Priority Collateral shall be included in the Term Loan Priority Collateral;

(xiii)all Books, Records and Collateral Records relating to the foregoing (including without limitation all books, databases, customer lists, engineer drawings, Records and Collateral Records, whether tangible or electronic, which contain any information relating to any of the foregoing); provided that to the extent any of such Books, Records and Collateral Records also relates to ABL Priority Collateral, only that portion related to the items referred to in the preceding clauses (i) through (xii) as being included in the Term Loan Priority Collateral shall be included in the Term Loan Priority Collateral; and

(xiv)all Cash Proceeds and, solely to the extent not constituting ABL Priority Collateral, non-Cash Proceeds, products, accessions, rents and profits of or in respect of any of the foregoing and all collateral security, guarantees and other Collateral Support given by any Person with respect to any of the foregoing;

provided, however, that (i) if Collateral of any type is received in exchange for ABL Priority Collateral in accordance with the terms of the ABL Credit Agreement, such Collateral will be treated as ABL Priority Collateral and (ii) if Collateral of any type is received in exchange for Term Loan Priority Collateral in accordance with the terms of the Term Loan Credit Agreement, such Collateral will be treated as Term Loan Priority Collateral.

“Term Loan Priority Collateral Enforcement Action Notice” shall have the meaning set forth in Section 6.3(a).

“Term Loan Priority Collateral Enforcement Actions” shall have the meaning set forth in Section 6.3(a).

“Term Loan Priority Obligations” means all Term Loan Obligations exclusive of the Excess Term Loan Obligations, which Excess Term Loan Obligations shall be excluded from (and shall not constitute) Term Loan Priority Obligations.

“Term Loan Secured Hedging Agreement” shall mean any Secured Hedging Agreement (as such term is (and the component definitions as used therein are) defined in the Term Loan Credit Agreement (as in effect on the date hereof)).

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“Term Loan Secured Parties” shall mean the lenders, agents and arrangers under the Term Loan Credit Agreement and the Term Loan Hedging Creditors and shall include all former lenders, agents and arrangers under the Term Loan Credit Agreement and Term Loan Hedging Creditors to the extent that any Term Loan Obligations owing to such Persons were incurred while such Persons were lenders, agents or arrangers under the Term Loan Credit Agreement or Term Loan Hedging Creditors and such Term Loan Obligations have not been paid or satisfied in full and all new Term Loan Secured Parties to the extent set forth in Section 3.4(h).

“Term Loan Security Agent” shall have the meaning set forth in the recitals hereto and includes any New Term Loan Agent to the extent set forth in Section 3.4(h).

“Term Loan Security Documents” shall mean the “Security Documents” (as defined in the Term Loan Credit Agreement) and any other agreement, document or instrument pursuant to which a Lien is granted securing any Term Loan Obligations (including any Permitted Refinancing of any Term Loan Obligation) or under which rights or remedies with respect to such Liens are governed, together with any amendments, replacements, modifications, extensions, renewals or supplements to, or restatements of, any of the foregoing in accordance herewith.

“Term Loan Standstill Period” shall have the meaning set forth in Section 4.1(a).

“Trademarks” shall mean any and all trademarks, trade names, service marks, trade dress, logos, slogans, designs or fictitious business names, registered trademarks, trademark applications, service marks, registered service marks and service mark applications, including (i) all renewals thereof, (ii) all income, royalties, damages and payments now and hereafter due or payable under and with respect thereto, including payments under all licenses entered into in connection therewith and damages and payments for past or future infringements or dilutions thereof, (iii) the right to sue for past, present and future infringements and dilutions thereof, (iv) the goodwill of each Grantor’s business symbolized by the foregoing or connected therewith, and (v) all rights corresponding thereto throughout the world.

“UCC” shall mean the New York Uniform Commercial Code, as in effect from time to time; provided, however, that in the event that, by reason of mandatory provisions of law, any or all of the attachment, perfection, priority, or remedies with respect to any Term Loan Lien or ABL Lien on any Collateral is governed by the Uniform Commercial Code as enacted and in effect in a jurisdiction other than the State of New York, the term “UCC” shall mean the Uniform Commercial Code as enacted and in effect in such other jurisdiction solely for purposes of the provisions thereof relating to such attachment, perfection, priority, or remedies.

“URL” shall mean “uniform resource locator,” an internet web address.

“WFCF” shall have the meaning set forth in the introductory paragraph hereto.

“Wholly-Owned Subsidiary” shall mean, as to any Person, (a) any corporation 100% of whose capital stock is at the time owned by such Person and/or one or more Wholly-Owned Subsidiaries of such Person and (b) any partnership, limited liability company, association, joint venture or other entity in which such Person and/or one or more Wholly-Owned Subsidiaries of such Person has a 100% equity interest at such time (other than, in the case of a Subsidiary of the Company organized under the laws of a jurisdiction other than the United States or any state thereof, with respect to the preceding clauses (a) and (b), directors’ qualifying shares and/or other nominal amounts of shares required to be held by Persons other than the Company and its Subsidiaries under applicable law).

1.2Terms Generally.  The definitions of terms herein shall apply equally to the

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singular and plural forms of the terms defined.  Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.  The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”.  The word “will” shall be construed to have the same meaning and effect as the word “shall”.  Unless the context requires otherwise, (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified to the extent not prohibited hereby, (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision of this Agreement, (d) all references herein to Exhibits or Sections shall be construed to refer to Exhibits or Sections of this Agreement, (e) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights, (f) terms defined in the UCC but not otherwise defined herein shall have the same meanings herein as are assigned thereto in the UCC, (g) reference to any law means such law as amended, modified, codified, replaced or re-enacted, in whole or in part, and in effect on the date hereof, including rules, regulations, enforcement procedures and any interpretations promulgated thereunder, and (h) references to Sections or clauses shall refer to those portions of this Agreement, and any references to a clause shall, unless otherwise identified, refer to the appropriate clause within the same Section in which such reference occurs.  References to specific sections of the Term Loan Credit Agreement contained in the definitions of Term Loan Debt Cap shall refer to such sections as in effect on the date hereof, without giving effect to subsequent amendments thereof; provided that the foregoing will not prevent (and the definitions of Term Loan Debt Cap will give effect to) amendments or modifications to the component defined terms and financial definitions utilized in such sections provided that such amendments or modifications are not entered into solely for the purpose of modifying such sections in order to increase the Term Loan Debt Cap (and no other purpose).

Section 2.  Lien Priorities.

2.1Relative Priorities.

(a)(i)   Notwithstanding (A) the time, manner, order or method of grant, creation, attachment or perfection of any Liens securing the ABL Obligations granted on the Collateral, or of any Liens securing the Term Loan Obligations granted on the Collateral, (B) the validity or enforceability (or lack thereof, including without limitation, due to an absence or failure of, or delay (including any Permitted Delay) in, the execution and filing of a mortgage with respect to real property, the execution and delivery of a control agreement, or otherwise obtaining perfection or priority) of the security interests and Liens granted in favor of any Security Agent or any Secured Party on any of the Collateral, (C) the date on which any ABL Obligations or any Term Loan Obligations are incurred or extended, (D) any provision of the UCC or any other applicable law, including any rule for determining priority thereunder or under any other law or rule governing the relative priorities of secured creditors, including with respect to real property or fixtures, (E) any provision set forth in any ABL Document or any Term Loan Document (in each case, other than this Agreement), (F) the possession or control by any Security Agent or any Secured Party or any bailee of all or any part of any Collateral as of the date hereof or otherwise, (G) any failure by any Security Agent or any Secured Party to perfect its security interests in any of the Collateral, or (H) any other circumstance whatsoever, each Security Agent, on behalf of itself and its respective Secured Parties, hereby agrees that:

(1)any Lien on the Term Loan Priority Collateral securing any Term Loan Obligations, now or hereafter held by or on behalf of the Term Loan Security Agent or any Term Loan Secured Parties or any agent or trustee therefor, in each case, regardless of how

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acquired, whether by grant, possession, statute, operation of law, subrogation or otherwise, shall be senior in all respects and prior to any Lien on the Term Loan Priority Collateral securing any of the ABL Obligations;

(2)any Lien on the Term Loan Priority Collateral securing any of the ABL Obligations now or hereafter held by or on behalf of the ABL Agent or any ABL Secured Parties or any agent or trustee therefor, regardless of how acquired, whether by grant, possession, statute, operation of law or court order, subrogation or otherwise, shall be junior and subordinate in all respects to all Liens on the Term Loan Priority Collateral securing any Term Loan Obligations;

(3)any Lien on the ABL Priority Collateral securing any ABL Obligations now or hereafter held by or on behalf of the ABL Agent or any ABL Secured Parties or any agent or trustee therefor, regardless of how acquired, whether by grant, possession, statute, operation of law, subrogation or otherwise, in each case, shall be senior in all respects and prior to any Lien on the ABL Priority Collateral securing any Term Loan Obligations; and

(4)any Lien on the ABL Priority Collateral securing any Term Loan Obligations, now or hereafter held by or on behalf of the Term Loan Security Agent or any Term Loan Secured Parties or any agent or trustee therefor, regardless of how acquired, whether by grant, possession, statute, operation of law or court order, subrogation or otherwise, in each case, shall be junior and subordinate in all respects to all Liens on the ABL Priority Collateral securing any ABL Obligations.

(ii)Relative Priorities — Subordination.  The priority and subordination provisions set forth in clauses (1) through (4) above with respect to the Liens on the Collateral securing all or any portion of the ABL Obligations or the Term Loan Obligations are intended to be effective whether or not such Liens are subordinated to any Lien securing any other obligation of the Company, any other Grantor or any other Person.  The parties hereto acknowledge and agree that it is their intent that each of the ABL Obligations (and the security therefor) and the Term Loan Obligations (and the security therefor) constitute a separate and distinct class of obligations (and separate and distinct claims) from each other.

(b)Prohibition on Contesting Liens.  Each of the ABL Agent, on behalf of itself and each ABL Secured Party, and the Term Loan Security Agent, on behalf of itself and each Term Loan Secured Party for which it is acting as agent or representative, agrees that it shall not (and hereby waives any right to) contest or support any other Person in contesting, in any proceeding (including any Insolvency or Liquidation Proceeding), (i) the priority, validity, extent, perfection or enforceability of a Lien held by or on behalf of any of the Term Loan Secured Parties or the ABL Secured Parties in either the Term Loan Priority Collateral or the ABL Priority Collateral, as the case may be, (ii) the validity or enforceability of any ABL Security Document (or any ABL Obligations thereunder) or any Term Loan Security Document (or any Term Loan Obligations thereunder), or (iii) the relative rights and duties of the holders of the ABL Obligations and the Term Loan Obligations granted and/or established in this Agreement; provided that nothing in this Agreement shall be construed to prevent or impair the rights of any of the Security Agents or any Secured Party to enforce this Agreement, including the priority of the Liens on the Term Loan Priority Collateral or ABL Priority Collateral, as the case may be, securing the Term Loan Obligations and the ABL Obligations as provided in Sections 2.1(a)(i) and 2.1(a)(ii).

(c)(i) No New Liens - Term Loan Obligations.  So long as the Discharge of Term Loan Obligations has not occurred, except as contemplated by Section 5.4(a), the parties hereto agree that neither the Company nor any other Grantor shall grant or permit any additional Liens on any asset or

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property of any Grantor to secure any ABL Obligations unless it has granted or contemporaneously grants (A) a First Priority Lien on such asset or property to secure the Term Loan Obligations if such asset or property constitutes Term Loan Priority Collateral or (B) a Second Priority Lien on such asset or property to secure the Term Loan Obligations if such asset or property constitutes ABL Priority Collateral (other than in the case of any Deposit Account or Securities Account, a grant of any Liens to the ABL Agent in such Deposit Account during the post-closing time period set forth in Schedule 12.21 of the Term Loan Credit Agreement).  To the extent that the provisions of clause (A) in the immediately preceding sentence are not complied with for any reason, without limiting any other rights and remedies available to the Term Loan Security Agent and/or the Term Loan Secured Parties, the ABL Agent, on behalf of ABL Secured Parties, agrees that any amounts received by or distributed to any of them pursuant to or as a result of Liens on the Term Loan Priority Collateral granted in contravention of such clause (A) of this Section 2.1(c) shall be subject to Section 3.3.

(ii)No New Liens — ABL Obligations.  So long as the Discharge of ABL Obligations has not occurred, except as contemplated by Section 5.4(a), the parties hereto agree that neither the Company nor any other Grantor shall grant or permit any additional Liens on any asset or property of any Grantor to secure any Term Loan Obligations unless it has granted or contemporaneously grants (i) a First Priority Lien on such asset or property to secure the ABL Obligations if such asset or property constitutes ABL Priority Collateral or (ii) a Second Priority Lien on such asset or property to secure the ABL Obligations if such asset or property constitutes Term Loan Priority Collateral.  To the extent that the provisions of clause (i) in the immediately preceding sentence are not complied with for any reason, without limiting any other rights and remedies available to the ABL Agent and/or the ABL Secured Parties, the Term Loan Security Agent, on behalf of Term Loan Secured Parties, agrees that any amounts received by or distributed to any of them pursuant to or as a result of Liens on the ABL Priority Collateral granted in contravention of such clause (i) of this Section 2.1(c) shall be subject to Section 3.3.  The ABL Agent, acting on behalf of the ABL Secured Parties (and without any requirement for the consent of any Grantor or Term Loan Agent), may elect to waive and forgo its right to receive a Second Priority mortgage on any Term Loan Priority Collateral assets consisting of real property to secure the ABL Obligations (which election shall be made in the form of a written waiver and notice to the Term Loan Security Agent and the Company, except in the case of the Designated Oklahoma Property, with respect to which notice of such election is given as of the date hereof pursuant to clause (y) below); provided that, notwithstanding anything to the contrary in this clause (ii) or in any other provision of this Agreement, (x) such election shall not in any way nullify, cancel or otherwise limit the rights of the Term Loan Security Agent and Term Loan Secured Parties to receive a mortgage on such real property to the secure the Term Loan Obligations and (y) notice is hereby given of ABL Agent’s election to waive and forgo its right to receive a Second Priority mortgage on the Designated Oklahoma Property.

(d)Effectiveness of Lien Priorities.  Each of the parties hereto acknowledges that the Lien priorities provided for in this Agreement shall not be affected or impaired in any manner whatsoever, including, without limitation, on account of:  (i) the invalidity, irregularity or unenforceability of all or any part of the ABL Documents or the Term Loan Documents; (ii) any amendment, change or modification of any ABL Documents or Term Loan Documents not in contravention of the terms of this Agreement; (iii) any absence or failure of, or delay (including any Permitted Delay) in, the execution and filing of a mortgage with respect to real property, the execution and delivery of a control agreement, or otherwise obtaining perfection or priority, with respect to the security interests and Liens granted in favor of any Security Agent or any Secured Party on any of the Collateral; or (iv) any impairment, modification, change, exchange, release or subordination of or limitation on, any liability of, or stay of actions or lien enforcement proceedings against, Parent or any of its Subsidiaries party to any of the ABL Documents or the Term Loan Documents, its property, or its

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estate in bankruptcy resulting from any bankruptcy, arrangement, readjustment, composition, liquidation, rehabilitation, similar proceeding or otherwise involving or affecting any Secured Party.

(e)Similar Liens and Agreements.  The parties hereto agree that it is their intention that the Collateral securing each of the ABL Obligations and the Term Loan Obligations be the same.  In furtherance of the foregoing and of Section 8.7, each Security Agent and each Secured Party agrees, subject to the other provisions of this Agreement:

(i)upon request by any Security Agent, to cooperate in good faith (and to direct their counsel to cooperate in good faith) from time to time in order to determine the specific items included in the Collateral securing the ABL Obligations or the Term Loan Obligations, as the case may be, and the steps taken to perfect the Liens thereon and the identity of the respective parties obligated under the ABL Documents or the Term Loan Documents, as the case may be;

(ii)that the Term Loan Security Documents and the ABL Security Documents creating Liens on the Term Loan Priority Collateral and the ABL Priority Collateral shall be in all material respects substantially the same forms of documents other than with respect to the First Priority and the Second Priority nature of the Liens created thereunder in such Collateral (it being understood that the Term Loan Security Documents and the ABL Security Documents satisfy this provision as of the date hereof); and

(iii)the guarantees for the ABL Obligations and the Term Loan Obligations shall be substantially in the same form.

(f)Reliance on Debt Caps.  Each of the parties hereto acknowledges and agrees that any Indebtedness funded in good faith by the applicable lenders or investors in reliance on a certificate of an authorized officer of the Company that such Indebtedness is permitted pursuant to the ABL Credit Agreement and the Term Loan Credit Agreement, and the applicable ABL Debt Cap and Term Loan Debt Cap (which certificate may be addressed to the appropriate agent or trustee for the Secured Parties providing such Indebtedness) shall for all purposes hereunder constitute ABL Priority Obligations (and not Excess ABL Obligations), or Term Loan Priority Obligations (and not Excess Term Loan Obligations), as applicable, based on such good faith reliance, notwithstanding any subsequent determination that the conditions to such incurrence were not satisfied, or that such Indebtedness is not permitted pursuant to the ABL Credit Agreement and the Term Loan Credit Agreement, or within the ABL Cap or the Term Loan Debt Cap, as applicable, due to an error in financial calculations or otherwise.

Section 3.  Term Loan Priority Collateral.

3.1Exercise of Remedies — Prior to Discharge of Term Loan Obligations.

(a)So long as the Discharge of Term Loan Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor:

(i)none of the ABL Agent or any of the ABL Secured Parties (x) will exercise or seek to exercise any rights or remedies (including, without limitation, set off) with respect to any Term Loan Priority Collateral (including, without limitation, the exercise of any right under any lockbox agreement, account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement in respect of Term Loan Priority Collateral to which the ABL Agent or any ABL Secured Party is a party) or institute or commence, or join with any Person (other than the Term Loan Security Agent and the Term Loan Secured Parties) in commencing any action or

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proceeding with respect to such rights or remedies (including any action of foreclosure, enforcement, collection or execution); provided, however, that the ABL Agent may exercise any or all such rights in accordance with the ABL Documents after the passage of a period of 120 days from the date of delivery of a notice in writing (the “ABL Notice”) to the Term Loan Security Agent of the ABL Security Agent’s intention to exercise its right to take such actions (the “ABL Standstill Period”); provided, further, however, notwithstanding anything herein to the contrary, none of the ABL Agent or any ABL Secured Party will exercise any rights or remedies with respect to any Term Loan Priority Collateral if, notwithstanding the expiration of the ABL Standstill Period, the Term Loan Security Agent or Term Loan Secured Parties shall have commenced and be diligently pursuing in good faith the exercise of any of their rights or remedies with respect to a material portion of the Term Loan Priority Collateral (prompt notice of such exercise to be given to the ABL Agent), (y) will contest, protest or object to any foreclosure proceeding or action brought by the Term Loan Security Agent or any Term Loan Secured Party with respect to, or any other exercise by the Term Loan Security Agent or any Term Loan Secured Party of any rights and remedies relating to, the Term Loan Priority Collateral under the Term Loan Documents or otherwise, or (z) subject to its rights under clause (i)(x) above, will object to the forbearance by the Term Loan Security Agent or the Term Loan Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Term Loan Priority Collateral, in each case so long as the ABL Secured Parties attach to the proceeds thereof subject to the relative priorities described in Section 2.1; provided, however, that nothing in this Section 3.1(a) shall be construed to authorize the ABL Agent or any ABL Secured Party to sell any Term Loan Priority Collateral free of the Lien of the Term Loan Security Agent or any Term Loan Secured Party; and provided further, that ABL Notice may be given or issued unless an event of default under the ABL Obligations has occurred and is continuing and the maturity of the ABL Obligations have been accelerated (or the ABL Obligations have not been paid at the final maturity date thereof); and

(ii)subject to Section 6 and clause (i)(x) above, the Term Loan Security Agent and the Term Loan Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including set off and the right to credit bid their debt) and make determinations regarding the disposition of, or restrictions with respect to, the Term Loan Priority Collateral without any consultation with or the consent of the ABL Agent or any ABL Secured Party; provided, that:

(1)in any Insolvency or Liquidation Proceeding commenced by or against the Parent, Holdings, the Company or any other Grantor, the ABL Agent and any ABL Secured Party may file a claim or statement of interest with respect to the Term Loan Obligations;

(2)any of the ABL Agent and any ABL Secured Party may take any action (not adverse to the priority status of the Liens on the Term Loan Priority Collateral securing the Term Loan Obligations, or the rights of any Term Loan Security Agent or the Term Loan Secured Parties to exercise remedies in respect thereof) in accordance with ABL Documents and the terms of this Agreement, as the case may be, in order to preserve or protect its Lien on the Term Loan Priority Collateral;

(3)each of the ABL Secured Parties shall be entitled to file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any Person objecting to or otherwise seeking the disallowance of the claims of the ABL Secured Parties, including without limitation any claims secured by the Term Loan Priority Collateral, if any, in each case in accordance with the terms of this Agreement;

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(4)each of the ABL Secured Parties shall be entitled to file any pleadings, objections, motions or agreements which assert rights or interests available to unsecured creditors of the Grantors arising under either the Bankruptcy Law or applicable non-bankruptcy law, in each case in accordance with the terms of this Agreement and to the extent not prohibited by any other provision of this Agreement;

(5)each of the ABL Secured Parties shall be entitled to vote on any plan of reorganization and file any proof of claim in an Insolvency or Liquidation Proceeding or otherwise and other filings and make any arguments and motions that are, in each case, in accordance with the terms of this Agreement, with respect to the Term Loan Priority Collateral; and

(6)subject to Section 3.2, the ABL Agent or any ABL Secured Party may exercise any of its rights or remedies with respect to the Term Loan Priority Collateral in accordance with the ABL Documents after the termination of the ABL Standstill Period to the extent permitted by clause (i)(x) above.

Subject to Section 6 and clause (i)(x) of this Section 3.1(a), in exercising rights and remedies with respect to the Term Loan Priority Collateral, the Term Loan Security Agent and the Term Loan Secured Parties may enforce the provisions of the Term Loan Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion.  Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Term Loan Priority Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC of any applicable jurisdiction and of a secured creditor under any other applicable law.

(b)The ABL Agent, on behalf of itself and the ABL Secured Parties, agrees that it will not take or receive any Term Loan Priority Collateral or any proceeds of Term Loan Priority Collateral in connection with the exercise of any right or remedy (including set off) with respect to any Term Loan Priority Collateral unless and until the Discharge of Term Loan Obligations has occurred, except as expressly provided in the first proviso in clause (i)(x) of Section 3.1(a) or in the proviso in clause (ii) of Section 3.1(a) or in Section 6.  Without limiting the generality of the foregoing, unless and until the Discharge of Term Loan Obligations has occurred, except as expressly provided in the first proviso in clause (i)(x) of Section 3.1(a) or in the proviso in clause (ii) of Section 3.1(a) or in Section 6, the sole right of the ABL Agent and the ABL Secured Parties with respect to the Term Loan Priority Collateral is to hold a Lien on the Term Loan Priority Collateral pursuant to the ABL Documents for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Term Loan Obligations has occurred in accordance with the terms hereof, the Term Loan Documents and applicable law.

(c)Subject to the first proviso in clause (i)(x) of Section 3.1(a) and Section 6:

(i)the ABL Agent, on behalf of itself and the ABL Secured Parties, agrees that the ABL Agent and the ABL Secured Parties will not take any action that would hinder, delay, limit or prohibit any exercise of remedies under the Term Loan Documents with respect to the Term Loan Priority Collateral, including any collection, sale, lease, exchange, transfer or other disposition of the Term Loan Priority Collateral, whether by foreclosure or otherwise, or that would limit, invalidate, avoid or set aside any Lien or Term Loan Security Document with respect to the Term Loan Priority Collateral or subordinate the priority of the Term Loan Obligations to the ABL Obligations with respect to the Term Loan Priority Collateral or grant the Liens with respect to the Term Loan Priority Collateral securing the ABL Obligations equal ranking to the

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Liens with respect to the Term Loan Priority Collateral securing the Term Loan Obligations; and

(ii)the ABL Agent, on behalf of itself and the ABL Secured Parties, hereby waives any and all rights it or the ABL Secured Parties may have as junior lien creditors with respect to the Term Loan Priority Collateral or otherwise to object to the manner in which the Term Loan Security Agent or the Term Loan Secured Parties seek to enforce or collect the Term Loan Obligations or the Liens granted in any of the Term Loan Priority Collateral, in any such case except to the extent such enforcement or collection is in violation of the terms of this Agreement, regardless of whether any action or failure to act by or on behalf of the Term Loan Security Agent or Term Loan Secured Parties is adverse to the interest of the ABL Secured Parties; and

(d)The ABL Agent, on behalf of itself and the ABL Secured Parties hereby acknowledges and agrees that no covenant, agreement or restriction contained in any ABL Document (other than this Agreement to the extent expressly set forth herein) shall be deemed to restrict in any way the rights and remedies of the Term Loan Security Agent or the Term Loan Secured Parties with respect to the Term Loan Priority Collateral as set forth in this Agreement and the Term Loan Documents.

3.2Exercise of Remedies — After Discharge of Term Loan Obligations.  After the Discharge of Term Loan Obligations has occurred and so long as the Discharge of ABL Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, the ABL Security Agent and the ABL Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including set off and the right to credit bid their debt) and make determinations regarding the disposition of, or restrictions with respect to, the Term Loan Priority Collateral.  In exercising rights and remedies with respect to the Term Loan Priority Collateral following the Discharge of Term Loan Obligations, the ABL Security Agent and the ABL Secured Parties may enforce the provisions of the ABL Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion.  Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Term Loan Priority Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC of any applicable jurisdiction and of a secured creditor under any other applicable law.

3.3Payments Over.  So long as the Discharge of Term Loan Obligations has not occurred, any Term Loan Priority Collateral, Cash Proceeds thereof or non-Cash Proceeds constituting Term Loan Priority Collateral (or any distribution in respect of the Term Loan Priority Collateral, whether or not expressly characterized as such) received by the ABL Agent or any ABL Secured Parties in connection with the exercise of any right or remedy (including set off) relating to the Term Loan Priority Collateral or otherwise that is inconsistent with this Agreement shall be segregated and held in trust and forthwith paid over to Term Loan Security Agent, for the benefit of the Term Loan Secured Parties, for application in accordance with Section 7.1 below, in the same form as received, with any necessary endorsements or as a court of competent jurisdiction may otherwise direct.  The Term Loan Security Agent is hereby authorized to make any such endorsements as agent for the ABL Agent and any such ABL Secured Parties, as the case may be.  This authorization is coupled with an interest and is irrevocable until the Discharge of Term Loan Obligations.

3.4Other Agreements.

(a)Releases — Term Loan Obligations.

(i)If, in connection with:

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(1)the exercise of any of the Term Loan Security Agent’s remedies in respect of the Term Loan Priority Collateral provided for in Section 3.1(a) (with the proceeds thereof being applied to the Term Loan Priority Obligations), including any sale, lease, exchange, transfer or other disposition of any such Term Loan Priority Collateral; or

(2)any sale, lease, exchange, transfer or other disposition of any Term Loan Priority Collateral permitted under the terms of the Term Loan Documents and the ABL Documents other than (A) in connection with the Discharge of Term Loan Obligations and (B) after the occurrence and during the continuance of any event of default under the ABL Credit Agreement,

the Term Loan Security Agent, on behalf of itself and the Term Loan Secured Parties, releases any of its Liens on any part of the Term Loan Priority Collateral, then the Liens, if any, of the ABL Agent, for itself and for the benefit of the ABL Secured Parties, on such Term Loan Priority Collateral (but not the Proceeds thereof, which shall be subject to the priorities set forth in this Agreement) shall be automatically, unconditionally and simultaneously released and the ABL Agent, for itself and on behalf of the ABL Secured Parties, promptly shall execute and deliver to the Term Loan Security Agent or such Grantor (at the expense of such Grantor) such termination statements, releases and other documents as the Term Loan Security Agent or such Grantor may reasonably request to effectively confirm such release.

(ii)Until the Discharge of Term Loan Obligations occurs, the ABL Agent, for itself and on behalf of the ABL Secured Parties, hereby irrevocably constitutes and appoints the Term Loan Security Agent and any officer or agent of the Term Loan Security Agent, with full power of substitution, as its true and lawful attorney in fact with full irrevocable power and authority in the place and stead of the ABL Agent, as the case may be, or such Secured Party or in the Term Loan Security Agent’s own name, from time to time in the Term Loan Security Agent’s discretion, for the purpose of carrying out the terms of this Section 3.4(a) with respect to Term Loan Priority Collateral, to take any and all appropriate action and to execute any and all documents and instruments which may be necessary to accomplish the purposes of this Section 3.4(a) with respect to Term Loan Priority Collateral, including any endorsements or other instruments of transfer or release.

(iii)Until the Discharge of Term Loan Obligations occurs, to the extent that the Term Loan Secured Parties (A) have released any Lien on Term Loan Priority Collateral and any such Lien is later reinstated or (B) obtain any new First Priority Liens on assets constituting Term Loan Priority Collateral from Grantors, then the ABL Secured Parties shall be granted a Second Priority Lien on any such Term Loan Priority Collateral.

(iv)If, prior to the Discharge of Term Loan Obligations, a subordination of the Term Loan Security Agent’s Lien on any Term Loan Priority Collateral is permitted under the Term Loan Credit Agreement and the ABL Credit Agreement to another Lien permitted under the Term Loan Credit Agreement and the ABL Credit Agreement (a “Term Loan Collateral Priority Lien”), then (x) the Term Loan Security Agent is authorized to execute and deliver a subordination agreement with respect thereto in form and substance satisfactory to it, and (y) the ABL Agent, on behalf of itself and the ABL Secured Parties, shall promptly execute and deliver to the Term Loan Security Agent an identical subordination agreement subordinating the Liens of the ABL Agent, for the benefit of (and on behalf of) the ABL Secured Parties to such Term Loan Collateral Priority Lien.

(b)[Reserved].

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(c)Insurance — Prior to Discharge of Term Loan Obligations.  Unless and until the Discharge of Term Loan Obligations has occurred, the Term Loan Security Agent and the Term Loan Secured Parties shall have the sole and exclusive right, subject to the rights of the Grantors under the Term Loan Documents, to adjust settlement for any insurance policy covering the Term Loan Priority Collateral in the event of any loss thereunder and to approve any award granted in any condemnation or similar proceeding (or any deed in lieu of condemnation) in respect of the Term Loan Priority Collateral.  If the ABL Agent or any ABL Secured Party shall, at any time, receive any proceeds of any such insurance policy or any such award or payment in contravention of this Section 3.4(c), it shall pay such proceeds over to the Term Loan Security Agent in accordance with the terms of Section 7.2(c).

(d)Insurance — After Discharge of Term Loan Obligations.  After the Discharge of Term Loan Obligations has occurred, and unless and until the Discharge of ABL Obligations has occurred, the ABL Security Agent and the ABL Secured Parties shall have the sole and exclusive right, subject to the rights of the Grantors under the ABL Documents, to adjust settlement for any insurance policy covering the Term Loan Priority Collateral in the event of any loss thereunder and to approve any award granted in any condemnation or similar proceeding (or any deed in lieu of condemnation) in respect of the Term Loan Priority Collateral.

(e)Rights as Unsecured Creditors.

(i)Except as otherwise expressly set forth in this Agreement, the ABL Agent and the ABL Secured Parties may exercise rights and remedies as unsecured creditors against the Company or any other Grantor in accordance with the terms of the ABL Documents to which the ABL Agent or such ABL Secured Parties are party and applicable law.  Except as otherwise set forth in this Agreement, nothing in this Agreement shall prohibit the receipt by the ABL Agent or any ABL Secured Parties of the required payments of interest, principal and other amounts in respect of the ABL Obligations so long as such receipt is not the direct or indirect result of the exercise by the ABL Agent or any ABL Secured Party of rights or remedies as a secured creditor (including set off) in respect of the Term Loan Priority Collateral in contravention of this Agreement or enforcement in contravention of this Agreement of any Lien held by any of them.  In the event the ABL Agent or any other ABL Secured Party becomes a judgment lien creditor in respect of Term Loan Priority Collateral as a result of its enforcement of its rights as an unsecured creditor, such judgment lien shall be subordinated to the Liens securing Term Loan Obligations, on the same basis as the other Liens on the Term Loan Priority Collateral securing the ABL Obligations are so subordinated to such Term Loan Obligations under this Agreement.

(ii)Except as otherwise set forth in this Agreement, nothing in this Agreement impairs or otherwise adversely affects any rights or remedies the Term Loan Security Agent or the other Term Loan Secured Parties may have with respect to the Term Loan Priority Collateral.

(f)Bailee for Perfection — Term Loan Security Agent.

(i)The Term Loan Security Agent agrees to hold or control that part of the Term Loan Priority Collateral that is in its possession or control (or in the possession or control of its agents or bailees) to the extent that possession or control thereof is taken to perfect a Lien thereon under the UCC or other applicable law (such Term Loan Priority Collateral being the “Pledged Term Loan Priority Collateral”) as security agent for the Term Loan Secured Parties and as bailee for and, with respect to any Term Loan Priority Collateral that cannot be perfected in such manner, as agent for the ABL Agent, on behalf of itself and the ABL Secured Parties, and any assignee thereof solely for the purpose of perfecting the security interest granted under the Term Loan Documents and the ABL Documents, respectively, subject to the terms and conditions of

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this Section 3.4(f).

(ii)Subject to the terms of this Agreement, until the Discharge of Term Loan Obligations has occurred, the Term Loan Security Agent shall be entitled to deal with the Pledged Term Loan Priority Collateral in accordance with the terms of the Term Loan Documents as if the Liens of the ABL Agent under the ABL Security Documents did not exist.  The rights of the ABL Agent and the ABL Secured Parties shall at all times be subject to the terms of this Agreement and to the Term Loan Security Agent’s rights under the Term Loan Documents.

(iii)The Term Loan Security Agent shall have no obligation whatsoever to any Term Loan Secured Party, the ABL Agent or any ABL Secured Party to ensure that the Pledged Term Loan Priority Collateral is genuine or owned by any of the Grantors or to preserve rights or benefits of any Person except as expressly set forth in this Section 3.4(f).  The duties or responsibilities of the Term Loan Security Agent under this Section 3.4(f) shall be limited solely to holding the Pledged Term Loan Priority Collateral as bailee or agent in accordance with this Section 3.4(f).

(iv)The Term Loan Security Agent acting pursuant to this Section 3.4(f) shall not have by reason of the Term Loan Security Documents, the ABL Documents, this Agreement or any other document a fiduciary relationship in respect of any Term Loan Secured Party, the ABL Agent or any ABL Secured Party.

(v)Upon the Discharge of Term Loan Obligations, the Term Loan Security Agent shall deliver or cause to be delivered the remaining Pledged Term Loan Priority Collateral (if any) in its possession or in the possession of its agents or bailees, together with any necessary endorsements, (A) first, to the ABL Agent to the extent ABL Obligations remain outstanding and (B) second, to the applicable Grantor to the extent no Term Loan Obligations or ABL Obligations remain outstanding (in each case, so as to allow such Person to obtain control of such Pledged Term Loan Priority Collateral) and will cooperate with the ABL Agent or such Grantor, as the case may be, in assigning (without recourse to or warranty by the Term Loan Security Agent or any Term Loan Secured Party or agent or bailee thereof) control over any other Pledged Term Loan Priority Collateral under its control.  The Term Loan Security Agent further agrees to take all other action reasonably requested by such Person (at the sole cost and expense of the Grantors) in connection with such Person obtaining a first priority interest in the Pledged Term Loan Priority Collateral or as a court of competent jurisdiction may otherwise direct.

(vi)Notwithstanding anything to the contrary herein if, for any reason, any ABL Obligations remain outstanding upon the Discharge of Term Loan Obligations, all rights of the Term Loan Security Agent hereunder and under the Term Loan Security Documents (1) with respect to the delivery and control of any part of the Term Loan Priority Collateral, and (2) to direct, instruct, vote upon or otherwise influence the maintenance or disposition of such Term Loan Priority Collateral, shall immediately, and (to the extent permitted by law) without further action on the part of the ABL Agent or the Term Loan Security Agent, pass to the ABL Agent, who shall thereafter hold such rights for the benefit of the ABL Secured Parties.  Each of the Term Loan Security Agent and the Grantors agrees that it will, if any ABL Obligations remain outstanding upon the Discharge of Term Loan Obligations, take any other action required by any applicable domestic law or reasonably requested by the ABL Agent (at the sole cost and expense of the Grantors) in connection with the ABL Agent’s establishment and perfection of a First Priority security interest in the Term Loan Priority Collateral to the extent required by the ABL Documents.

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(vii)Notwithstanding anything to the contrary contained herein, if for any reason, prior to the Discharge of ABL Obligations, the Term Loan Security Agent acquires possession of any Pledged ABL Priority Collateral, the Term Loan Security Agent shall hold same as bailee and/or agent to the same extent as is provided in preceding clause (i) with respect to Pledged Term Loan Priority Collateral, provided that as soon as is practicable the Term Loan Security Agent shall deliver or cause to be delivered such Pledged ABL Priority Collateral to the ABL Agent in a manner otherwise consistent with the requirements of preceding clause (v).

(g)[Reserved].

(h)When Discharge of Term Loan Obligations Deemed to Not Have Occurred.  Notwithstanding anything to the contrary herein, if concurrently with (or immediately after) the Discharge of Term Loan Obligations, the Company or any other Grantor enters into any Permitted Refinancing of any Term Loan Priority Obligations and provides the notice referred to in the following sentence, then such Discharge of Term Loan Obligations shall automatically be deemed not to have occurred for all purposes of this Agreement, and the obligations under the Permitted Refinancing shall automatically be treated as Term Loan Priority Obligations (together with the Term Loan Secured Hedging Agreements on the basis provided in the definition of “Term Loan Documents” contained herein) for all purposes of this Agreement, including for purposes of the Lien priorities and rights in respect of Collateral set forth herein, the term “Term Loan Credit Agreement” shall be deemed appropriately modified to refer to such Permitted Refinancing and the Term Loan Security Agent under such Term Loan Documents shall be a Term Loan Security Agent for all purposes hereof and the new secured parties under such Term Loan Documents shall automatically be treated as Term Loan Secured Parties for all purposes of this Agreement.  Upon receipt of a notice from the Company stating that the Company or any other Grantor has entered into a new Term Loan Document in respect of a Permitted Refinancing of Term Loan Obligations (which notice shall include the identity of the new security agent, such agent, the “New Term Loan Agent”), and delivery by the New Term Loan Agent of an Intercreditor Agreement Joinder, the ABL Agent shall promptly (i) enter into such documents and agreements (including amendments or supplements to this Agreement) as the Company or such New Term Loan Agent shall reasonably request in order to provide to the New Term Loan Agent the rights contemplated hereby, in each case consistent in all material respects with the terms of this Agreement and (ii) deliver to the New Term Loan Agent any Pledged Term Loan Priority Collateral held by the ABL Agent, together with any necessary endorsements (or otherwise allow the New Term Loan Agent to obtain control of such Pledged Term Loan Priority Collateral), in each case, at the sole cost and expense of the Company.  The New Term Loan Agent shall agree to be bound by the terms of this Agreement.  If the new Term Loan Priority Obligations under the new Term Loan Documents are secured by assets of the Grantors of the type constituting Term Loan Priority Collateral that do not also secure the ABL Priority Obligations, then the ABL Priority Obligations shall be secured at such time by a Second Priority Lien on such assets to the same extent provided in the ABL Security Documents with respect to the other Term Loan Priority Collateral.  If the new Term Loan Priority Obligations under the new Term Loan Documents are secured by assets of the Grantors of the type constituting ABL Priority Collateral that do not also secure the ABL Priority Obligations, then the ABL Priority Obligations shall be secured at such time by a First Priority Lien on such assets to the same extent provided in the ABL Security Documents with respect to the other ABL Priority Collateral.

3.5Insolvency or Liquidation Proceedings.

(a)Finance and Sale Issues — Term Loan Obligations.  Until the Discharge of Term Loan Obligations has occurred, if the Company or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding and the Term Loan Security Agent shall desire to permit the use of cash collateral (as such term is defined in Section 363(a) of the Bankruptcy Code) constituting Term Loan Priority

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Collateral or to permit the Company or any other Grantor to obtain financing, whether from the Term Loan Secured Parties or any other entity under Section 364 of the Bankruptcy Code or any similar Bankruptcy Law that is secured by a lien that is (i) senior or pari passu with the liens on the Term Loan Priority Collateral securing the Term Loan Priority Obligations, and (ii) junior to the liens on the ABL Priority Collateral securing the ABL Priority Obligations (each, a “Term Loan DIP Financing”), then the ABL Agent, on behalf of itself and the ABL Secured Parties, agrees that it will not oppose or raise any objection to or contest (or join with or support any third party opposing, objecting or contesting) such use of cash collateral constituting Term Loan Priority Collateral or to the fact that such Term Loan DIP Financing may be granted Liens on the Collateral and will not request adequate protection or any other relief in connection therewith (except as expressly agreed by the Term Loan Security Agent or to the extent permitted by Section 3.5(c) and 5.4(a)) and the ABL Agent will subordinate its Liens in the Term Loan Priority Collateral to the Liens securing such Term Loan DIP Financing (and all interest and other obligations relating thereto); provided that (i) the ABL Agent and the other ABL Secured Parties retain a Lien on the Collateral to secure the ABL Priority Obligations, and, with respect to the ABL Priority Collateral only, with the same priority as existed prior to the commencement of the Insolvency or Liquidation Proceeding, (ii) to the extent that the Term Loan Security Agent is granted adequate protection in the form of a Lien and/or a superpriority administrative claim the ABL Agent are permitted to seek (without objection from the Term Loan Security Agent or any Term Loan Secured Party) a Lien on Collateral arising after the commencement of the Insolvency or Liquidation Proceeding and/or a superpriority administrative claim, as applicable (so long as, with respect to Term Loan Priority Collateral, such Lien is junior to the Liens securing such Term Loan DIP Financing and the Term Loan Priority Obligations and such superpriority administrative claim is junior to the superpriority administrative claim granted to the Term Loan Security Agent), (iii) the terms of such Term Loan DIP Financing or use of cash collateral do not require any Grantor to seek approval for any Plan of Reorganization that is inconsistent with this Agreement and (iv) the aggregate principal amount of such Term Loan DIP Financing (exclusive of any Interest Rate Protection Agreement or Other Hedging Agreement, to the extent constituting principal) does not exceed the Maximum Exposure Amount.  The ABL Agent, on behalf of the ABL Secured Parties, agrees that it will not raise any objection or oppose a sale or other disposition of any Term Loan Priority Collateral free and clear of its Liens (subject to attachment of proceeds with respect to the Second Priority Lien on the Term Loan Priority Collateral in favor of the ABL Agent in the same order and manner as otherwise set forth herein) or other claims under Section 363 of the Bankruptcy Code, except for any objection or opposition that could be asserted by any ABL Secured Party as an unsecured creditor in any such Insolvency or Liquidation Proceeding, if the Term Loan Secured Parties have consented to such sale or disposition of such assets; provided that the ABL Agent and the other ABL Secured Parties shall be entitled to seek and exercise Credit Bid Rights in respect of any such sale or disposition.

(b)Relief from the Automatic Stay.  Until the Discharge of Term Loan Obligations has occurred, the ABL Agent, on behalf of itself and the ABL Secured Parties, agrees that none of them shall seek (or support any other person seeking) relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding in respect of the Term Loan Priority Collateral without the prior written consent of the Term Loan Security Agent.

(c)Adequate Protection.  The ABL Agent, on behalf of itself and the ABL Secured Parties, agrees that none of them shall contest (or support any other Person contesting) (i) any request by the Term Loan Security Agent or the Term Loan Secured Parties for adequate protection with respect to any Term Loan Priority Collateral, (ii) so long as the request of adequate protection is in the form of a replacement lien on the ABL Priority Collateral that is junior to the liens on the ABL Priority Collateral securing the ABL Priority Obligations, any request by the Term Loan Security Agent or the Term Loan Secured Parties for adequate protection with respect to any ABL Priority Collateral, or (iii) any objection by the Term Loan Security Agent or the Term Loan Secured Parties to any motion, relief, action or

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proceeding based on the Term Loan Security Agent or the Term Loan Secured Parties claiming a lack of adequate protection with respect to the Term Loan Priority Collateral.  Notwithstanding the foregoing provisions in this Section 3.5(c), in any Insolvency or Liquidation Proceeding, (A) if the Term Loan Secured Parties (or any subset thereof) are granted adequate protection in the form of additional collateral in the nature of assets constituting Term Loan Priority Collateral and/or a superpriority administrative claim in connection with any Term Loan DIP Financing or use of cash collateral constituting Term Loan Priority Collateral, then the ABL Agent, on behalf of itself or any of the ABL Secured Parties may seek or request adequate protection in the form of a Lien on such additional collateral and/or a superpriority administrative claim (as applicable), which Lien and/or claim will be subordinated to the Liens securing the Term Loan Obligations and such Term Loan DIP Financing (and all obligations relating thereto) or superpriority claim granted to the Term Loan Security Agent on the same basis as the other Liens on, or claims with respect to, Term Loan Priority Collateral securing the ABL Obligations, as the case may be, are so subordinated to the Term Loan Obligations under this Agreement, and (B) in the event the ABL Agent, on behalf of itself and the ABL Secured Parties, seeks or requests adequate protection in respect of Term Loan Priority Collateral securing ABL Obligations and such adequate protection is granted in the form of additional collateral in the nature of assets constituting Term Loan Priority Collateral and/or a superpriority administrative claim, then the ABL Agent, on behalf of itself and the ABL Secured Parties, agrees that the Term Loan Security Agent shall also be granted a senior Lien on such additional collateral as security for the Term Loan Obligations and for any such Term Loan DIP Financing and/or a superpriority administrative claim (as applicable) and that any Lien on such additional collateral securing the ABL Obligations and/or superpriority claim, as the case may be, shall be subordinated to the Liens on such collateral securing the Term Loan Obligations, and any such Term Loan DIP Financing (and all obligations relating thereto) and to any other Liens and superpriority claims granted to the Term Loan Secured Parties, as adequate protection on the same basis as the other Liens on, and claims with respect to, Term Loan Priority Collateral securing the ABL Obligations are so subordinated to such Term Loan Obligations under this Agreement.

Section 4.  ABL Priority Collateral.

4.1Exercise of Remedies — Prior to Discharge of ABL Obligations.

(a)So long as the Discharge of ABL Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor:

(i)none of the Term Loan Security Agent or any of the Term Loan Secured Parties (x) will exercise or seek to exercise any rights or remedies (including, without limitation, set off) with respect to any ABL Priority Collateral (including, without limitation, the exercise of any right under any lockbox agreement, account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement in respect of ABL Priority Collateral to which the Term Loan Security Agent or any Term Loan Secured Party, as the case may be, is a party) or institute or commence or join with any Person (other than the ABL Agent and the ABL Secured Parties) in commencing any action or proceeding with respect to such rights or remedies (including any action of foreclosure, enforcement, collection or execution); provided, however, that the Term Loan Security Agent may exercise any or all such rights in accordance with the Term Loan Documents after the passage of a period of 120 days from the date of delivery of a notice in writing (the “Term Loan/ABL Notice”) to the ABL Agent of the Term Loan Security Agent’s intention to exercise its right to take such actions (the “Term Loan Standstill Period”); provided, further, however, notwithstanding anything herein to the contrary, none of the Term Loan Security Agent or any Term Loan Secured Party will exercise any rights or remedies with respect to any ABL Priority Collateral if, notwithstanding the expiration of the Term Loan Standstill

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Period, the ABL Agent or ABL Secured Parties shall have commenced and be diligently pursuing in good faith the exercise of any of their rights or remedies with respect to a material portion of the ABL Priority Collateral (prompt notice of such exercise to be given to the Term Loan Security Agent), (y) will contest, protest or object to any foreclosure proceeding or action brought by the ABL Agent or any ABL Secured Party with respect to, or any other exercise by the ABL Agent or any ABL Secured Party of any rights and remedies relating to, the ABL Priority Collateral under the ABL Documents or otherwise, and (z) subject to their rights under clause (i)(x) above, will object to the forbearance by the ABL Agent or the ABL Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the ABL Priority Collateral, in each case so long as the respective interests of the Term Loan Secured Parties attach to the proceeds thereof subject to the relative priorities described in Section 2; provided, however, that nothing in this Section 4.1(a) shall be construed to authorize the Term Loan Security Agent or any Term Loan Secured Party, as the case may be, to sell any ABL Priority Collateral free of the Lien of the ABL Agent or any ABL Secured Party; and provided further, that no Term Loan/ABL Notice may be given or issued unless an event of default under the Term Loan Obligations has occurred and is continuing and the maturity of the Term Loan Obligations has been accelerated (or the Term Loan Obligations have not been paid at the final maturity date thereof); and

(ii)subject to clause (i)(x) above, the ABL Agent and the ABL Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including set off and the right to credit bid their debt) and make determinations regarding the disposition of, or restrictions with respect to, the ABL Priority Collateral without any consultation with or the consent of the Term Loan Security Agent or any Term Loan Secured Party; provided, that:

(1)in any Insolvency or Liquidation Proceeding commenced by or against Parent, Holdings, the Company or any other Grantor, the Term Loan Security Agent and any Term Loan Secured Party may file a claim or statement of interest with respect to the ABL Obligations;

(2)any of the Term Loan Security Agent and any Term Loan Secured Party may take any action (not adverse to the priority status of the Liens on the ABL Priority Collateral securing the ABL Obligations, or the rights of any ABL Agent or the ABL Secured Parties to exercise remedies in respect thereof) in accordance with the Term Loan Documents, in order to preserve or protect its Lien on the ABL Priority Collateral;

(3)each of the Term Loan Secured Parties shall be entitled to file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any Person objecting to or otherwise seeking the disallowance of the claims of the Term Loan Secured Parties, including without limitation any claims secured by the ABL Priority Collateral, if any, in each case in accordance with the terms of this Agreement;

(4)each of the Term Loan Secured Parties shall be entitled to file any pleadings, objections, motions or agreements which assert rights or interests available to unsecured creditors of the Grantors arising under either the Bankruptcy Law or applicable non-bankruptcy law, in each case in accordance with the terms of this Agreement and to the extent not prohibited by any other provision of this Agreement;

(5)each of the Term Loan Secured Parties shall be entitled to vote on any plan of reorganization and file any proof of claim in an Insolvency or Liquidation Proceeding or

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otherwise and other filings and make any arguments and motions that are, in each case, in accordance with the terms of this Agreement, with respect to the ABL Priority Collateral; and

(6)each of the Term Loan Security Agent or any Term Loan Secured Party may exercise any of its rights or remedies with respect to the ABL Priority Collateral in accordance with the Term Loan Documents after the termination of the Term Loan Standstill Period to the extent permitted by clause (i)(x) above.

Subject to clause (i)(x) above, in exercising rights and remedies with respect to the ABL Priority Collateral, the ABL Agent and the ABL Secured Parties may enforce the provisions of the ABL Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion.  Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of ABL Priority Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC of any applicable jurisdiction and of a secured creditor under any other applicable law.

(b)The Term Loan Security Agent, on behalf of itself and the Term Loan Secured Parties, agrees that it will not take or receive any ABL Priority Collateral or any proceeds of ABL Priority Collateral in connection with the exercise of any right or remedy (including set off) with respect to any ABL Priority Collateral unless and until the Discharge of ABL Obligations has occurred, except as expressly provided in the first proviso in clause (i)(x) of Section 4.1(a) or in the proviso in clause (ii) of Section 4.1(a).  Without limiting the generality of the foregoing, unless and until the Discharge of ABL Obligations has occurred, except as expressly provided in the first proviso in clause (i)(x) of Section 4.1(a) or in the proviso in clause (ii) of Section 4.1(a), the sole right of the Term Loan Security Agent and the Term Loan Secured Parties with respect to the ABL Priority Collateral is to hold a Lien on the ABL Priority Collateral pursuant to the Term Loan Documents for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of ABL Obligations has occurred in accordance with the terms hereof, the ABL Documents and applicable domestic law.

(c)Subject to the first proviso in clause (i)(x) of Section 4.1(a), and the proviso in clause (ii) of Section 4.1(a):

(i)the Term Loan Security Agent, on behalf of itself and the Term Loan Secured Parties, agrees that the Term Loan Security Agent and the Term Loan Secured Parties will not take any action that would hinder, delay, limit or prohibit any exercise of remedies under the ABL Documents with respect to the ABL Priority Collateral, including any collection, sale, lease, exchange, transfer or other disposition of the ABL Priority Collateral, whether by foreclosure or otherwise, or that would limit, invalidate, avoid or set aside any Lien or ABL Security Document with respect to the ABL Priority Collateral or subordinate the priority of the ABL Obligations to the Term Loan Obligations with respect to the ABL Priority Collateral or grant the Liens with respect to the ABL Priority Collateral securing the Term Loan Obligations equal ranking to the Liens with respect to the ABL Priority Collateral securing the ABL Obligations; and

(ii)the Term Loan Security Agent, on behalf of itself and the Term Loan Secured Parties, hereby waives any and all rights it or the Term Loan Secured Parties may have as junior lien creditors with respect to the ABL Priority Collateral or otherwise to object to the manner in which the ABL Agent or the ABL Secured Parties seek to enforce or collect the ABL Obligations or the Liens granted in any of the ABL Priority Collateral in any such case except to the extent such enforcement or collection is in violation of the terms of this Agreement, regardless of whether any action or failure to act by or on behalf of the ABL Agent or ABL Secured Parties is

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adverse to the interest of the Term Loan Secured Parties.

(d)The Term Loan Security Agent, for itself and on behalf of the Term Loan Secured Parties, hereby acknowledges and agrees that no covenant, agreement or restriction contained in any Term Loan Document (other than this Agreement to the extent expressly set forth herein) shall be deemed to restrict in any way the rights and remedies of the ABL Agent or the ABL Secured Parties with respect to the ABL Priority Collateral as set forth in this Agreement and the ABL Documents.

4.2Exercise of Remedies — After Discharge of ABL Obligations.  After the Discharge of ABL Obligations has occurred and so long as the Discharge of Term Loan Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, the Term Loan Security Agent and the Term Loan Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including set off and the right to credit bid their debt) and make determinations regarding the disposition of, or restrictions with respect to, the ABL Priority Collateral.  In exercising rights and remedies with respect to the ABL Priority Collateral, the Term Loan Security Agent and the Term Loan Secured Parties may enforce the provisions of the Term Loan Documents and exercise remedies thereunder, all in such order and in such manner as it may determine in the exercise of its sole discretion.  Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of ABL Priority Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC of any applicable jurisdiction and of a secured creditor under any other applicable law.

4.3Payments Over.  So long as the Discharge of ABL Obligations has not occurred, any ABL Priority Collateral, Cash Proceeds thereof or non-Cash Proceeds constituting ABL Priority Collateral (or any distribution in respect of the ABL Priority Collateral, whether or not expressly characterized as such) received by the Term Loan Security Agent or any Term Loan Secured Parties in connection with the exercise of any right or remedy (including set off) relating to the ABL Priority Collateral or otherwise that is inconsistent with this Agreement shall be segregated and held in trust and forthwith paid over to the ABL Agent, for the benefit of the ABL Secured Parties, for application in accordance with Section 7.2 below, in the same form as received, with any necessary endorsements or as a court of competent jurisdiction may otherwise direct.  The ABL Agent is hereby authorized to make any such endorsements as agent for the Term Loan Security Agent or any such Term Loan Secured Parties.  This authorization is coupled with an interest and is irrevocable until the Discharge of ABL Obligations.

4.4Other Agreements.

(a)Releases — ABL Obligations.

(i)If, in connection with:

(1)the exercise of any of the ABL Agent’s remedies in respect of the ABL Priority Collateral provided for in Section 4.1(a) (with the proceeds thereof being applied to the ABL Priority Obligations), including any sale, lease, exchange, transfer or other disposition of any such ABL Priority Collateral; or

(2)any sale, lease, exchange, transfer or other disposition of any ABL Priority Collateral permitted under the terms of the ABL Documents, the Term Loan Documents (other than (A) in connection with the Discharge of ABL Obligations and (B) after the occurrence and during the continuance of any event of default under the Term Loan Credit Agreement),

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the ABL Agent, on behalf of itself and the ABL Secured Parties, releases any of its Liens on any part of the ABL Priority Collateral, then the Liens, if any, of the Term Loan Security Agent, for itself and on behalf of the Term Loan Secured Parties, on such ABL Priority Collateral (but not the Proceeds thereof, which shall be subject to the priorities set forth in this Agreement) shall be automatically, unconditionally and simultaneously released and the Term Loan Security Agent, for itself and on behalf of the Term Loan Secured Parties, promptly shall execute and deliver to the ABL Agent or such Grantor such termination statements, releases and other documents (at such Grantor’s expense) as the ABL Agent or such Grantor may reasonably request to effectively confirm such release.

(ii)Until the Discharge of ABL Obligations occurs, the Term Loan Security Agent, on behalf of itself and the Term Loan Secured Parties, hereby irrevocably constitutes and appoints the ABL Agent and any officer or agent of the ABL Agent, with full power of substitution, as its true and lawful attorney in fact with full irrevocable power and authority in the place and stead of the Term Loan Security Agent or such Term Loan Secured Party, as the case may be, or in the ABL Agent’s own name, from time to time in the ABL Agent’s discretion, for the purpose of carrying out the terms of this Section 4.4(a) with respect to ABL Priority Collateral, to take any and all appropriate action and to execute any and all documents and instruments which may be necessary to accomplish the purposes of this Section 4.4(a) with respect to ABL Priority Collateral, including any endorsements or other instruments of transfer or release.

(iii)Until the Discharge of ABL Obligations occurs, to the extent that the ABL Secured Parties (a) have released any Lien on ABL Priority Collateral and any such Lien is later reinstated or (b) obtain any new First Priority Liens on assets constituting ABL Priority Collateral from Grantors, then the Term Loan Secured Parties shall be granted a Second Priority Lien on any such ABL Priority Collateral.

(iv)If, prior to the Discharge of ABL Obligations, a subordination of the ABL Agent’s Lien on any ABL Priority Collateral is permitted under the ABL Credit Agreement and the Term Loan Credit Agreement to another Lien permitted under the ABL Credit Agreement and the Term Loan Credit Agreement (for purposes of this clause (iv), an “ABL Collateral Priority Lien”), then the ABL Agent is authorized to execute and deliver a subordination agreement with respect thereto in form and substance satisfactory to it, and the Term Loan Security Agent, on behalf of itself and the Term Loan Secured Parties, shall promptly execute and deliver to the ABL Agent an identical subordination agreement subordinating the Liens of the Term Loan Security Agent, for itself and for the benefit of the Term Loan Secured Parties, respectively, to such ABL Collateral Priority Lien.

(b)[Reserved].

(c)Insurance — Prior to Discharge of ABL Obligations.  Unless and until the Discharge of ABL Obligations has occurred, the ABL Agent and the ABL Secured Parties shall have the sole and exclusive right, subject to the rights of the Grantors under the ABL Documents, to adjust settlement for any insurance policy covering the ABL Priority Collateral in the event of any loss thereunder and to approve any award granted in any condemnation or similar proceeding (or any deed in lieu of condemnation) in respect of the ABL Priority Collateral.  If the Term Loan Security Agent or any Term Loan Secured Party shall, at any time, receive any proceeds of any such insurance policy or any such award or payment in contravention of this Section 4.4(c), it shall pay such proceeds over to the ABL Agent in accordance with the terms of Section 7.1(c).

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(d)Insurance — After Discharge of ABL Obligations.  After the  Discharge of ABL Obligations has occurred, and unless and until the Discharge of Term Loan Obligations has occurred, the Term Loan Security Agent and the Term Loan Secured Parties shall have the sole and exclusive right, subject to the rights of the Grantors under the Term Loan Documents, to adjust settlement for any insurance policy covering the ABL Priority Collateral in the event of any loss thereunder and to approve any award granted in any condemnation or similar proceeding (or any deed in lieu of condemnation) in respect of the ABL Priority Collateral.

(e)Rights As Unsecured Creditors.

(i)Except as otherwise set forth in this Agreement, the Term Loan Security Agent and the Term Loan Secured Parties may exercise rights and remedies as unsecured creditors against the Company or any other Grantor in accordance with the terms of the Term Loan Documents to which it is a party and applicable law.  Except as otherwise set forth in this Agreement, nothing in this Agreement shall prohibit the receipt by the Term Loan Security Agent or any Term Loan Secured Parties of the required payments of interest, principal and other amounts in respect of the Term Loan Obligations so long as such receipt is not the direct or indirect result of the exercise by the Term Loan Security Agent or any Term Loan Secured Parties of rights or remedies as a secured creditor (including set off) in respect of the ABL Priority Collateral in contravention of this Agreement or enforcement in contravention of this Agreement of any Lien held by any of them.  In the event the Term Loan Security Agent or any other Term Loan Secured Party becomes a judgment lien creditor in respect of ABL Priority Collateral as a result of its enforcement of its rights as an unsecured creditor, such judgment lien shall be subordinated to the Liens securing ABL Obligations on the same basis as the other Liens on the ABL Priority Collateral securing the Term Loan Obligations are so subordinated to such ABL Obligations under this Agreement.

(ii)Nothing in this Agreement impairs or otherwise adversely affects any rights or remedies the ABL Agent or the other ABL Secured Parties may have with respect to the ABL Priority Collateral.

(f)Bailee for Perfection — ABL Agent.

(i)The ABL Agent agrees to hold or control that part of the ABL Priority Collateral that is in its possession or control (or in the possession or control of its agents or bailees) to the extent that possession or control thereof is taken to perfect a Lien thereon under the UCC or other applicable law (such ABL Priority Collateral being the “Pledged ABL Priority Collateral”) as security agent for the ABL Secured Parties and as bailee for and, with respect to any ABL Priority Collateral that cannot be perfected in such manner, as agent for, the Term Loan Security Agent (for itself and on behalf of the Term Loan Secured Parties) and any assignee thereof solely for the purpose of perfecting the security interest granted under the ABL Credit Documents and the Term Loan Documents, respectively, subject to the terms and conditions of this Section 4.4(f).

(ii)Subject to the terms of this Agreement, until the Discharge of ABL Obligations has occurred, the ABL Agent shall be entitled to deal with the Pledged ABL Priority Collateral in accordance with the terms of the ABL Documents as if the Liens of the Term Loan Security Agent under the Term Loan Security Documents did not exist.  The rights of the Term Loan Security Agent and the Term Loan Secured Parties shall at all times be subject to the terms of this Agreement and to the ABL Agent’s rights under the ABL Documents.

(iii)The ABL Agent shall have no obligation whatsoever to any ABL Secured Party,

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the Term Loan Security Agent or any Term Loan Secured Party to ensure that the Pledged ABL Priority Collateral is genuine or owned by any of the Grantors or to preserve rights or benefits of any Person except as expressly set forth in this Section 4.4(f).  The duties or responsibilities of the ABL Agent under this Section 4.4(f) shall be limited solely to holding the Pledged ABL Priority Collateral as bailee or agent in accordance with this Section 4.4(f).

(iv)The ABL Agent acting pursuant to this Section 4.4(f) shall not have by reason of the ABL Security Documents, the Term Loan Security Documents, this Agreement or any other document a fiduciary relationship in respect of any ABL Secured Party, the Term Loan Security Agent or any Term Loan Secured Party.

(v)Upon the Discharge of ABL Obligations, the ABL Agent shall deliver or cause to be delivered the remaining Pledged ABL Priority Collateral (if any) in its possession or in possession of its agents or bailees, together with any necessary endorsements, (A) first, to the Term Loan Security Agent to the extent Term Loan Obligations remain outstanding, and (B) second, to the applicable Grantor to the extent no ABL Obligations or Term Loan Obligations remain outstanding (in each case, so as to allow such Person to obtain control of such Pledged ABL Priority Collateral) and will cooperate with the Term Loan Security Agent or such Grantor, as the case may be, in assigning (without recourse to or warranty by the ABL Agent or any ABL Secured Party or agent or bailee thereof) control over any other Pledged ABL Priority Collateral under its control.  The ABL Agent further agrees to take all other action reasonably requested by such Person (at the sole cost and expense of the Grantors or such Person) in connection with such Person obtaining a first priority interest in the Pledged ABL Priority Collateral or as a court of competent jurisdiction may otherwise direct.

(vi)Notwithstanding anything to the contrary herein, following the Discharge of ABL Obligations, if, for any reason, any Term Loan Obligations remain outstanding, all rights of the ABL Agent hereunder and under the ABL Security Documents (1) with respect to the delivery and control of any part of the ABL Priority Collateral, and (2) to direct, instruct, vote upon or otherwise influence the maintenance or disposition of such ABL Priority Collateral, shall immediately, and (to the extent permitted by law) without further action on the part of either of the Term Loan Security Agent or the ABL Agent, pass to the Term Loan Security Agent, who shall thereafter hold such rights for the benefit of the Term Loan Secured Parties.  Each of the ABL Agent and the Grantors agrees that, following the Discharge of ABL Obligations, it will, if any Term Loan Obligations remain outstanding, take any other action required by any applicable domestic law or reasonably requested by the Term Loan Security Agent (at the sole cost and expense of Grantors), in connection with the Term Loan Security Agent’s establishment and perfection of a First Priority security interest in the ABL Priority Collateral to the extent required by the Term Loan Documents.

(vii)Notwithstanding anything to the contrary contained herein, if for any reason, prior to the Discharge of Term Loan Obligations, the ABL Agent acquires possession of any Pledged Term Loan Priority Collateral, the ABL Agent shall hold same as bailee and/or agent to the same extent as is provided in the preceding clause (i) with respect to Pledged ABL Priority Collateral, provided that as soon as is practicable the ABL Agent shall deliver or cause to be delivered such Pledged Term Loan Priority Collateral to the Term Loan Security Agent in a manner otherwise consistent with the requirements of preceding clause (v).

(g)Bailee for Perfection — Term Loan Security Agent.

(i)Subject to the terms of this Agreement, after the Discharge of ABL Obligations

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has occurred and until the Discharge of Term Loan Obligations has occurred, the Term Loan Security Agent shall be entitled to deal with the Pledged ABL Priority Collateral in accordance with the terms of the Term Loan Documents.

(ii)The Term Loan Security Agent shall have no obligation whatsoever to any Term Loan Secured Party to ensure that the Pledged ABL Priority Collateral is genuine or owned by any of the Grantors or to preserve rights or benefits of any Person except as expressly set forth in this Section 4.4(g).  The duties or responsibilities of the Term Loan Security Agent under this Section 4.4(g) shall be limited solely to holding the Pledged ABL Priority Collateral as bailee or agent in accordance with this Section 4.4(g).

(iii)The Term Loan Security Agent acting pursuant to this Section 4.4(g) shall not have by reason of the Term Loan Security Documents, this Agreement or any other document a fiduciary relationship in respect of any Term Loan Secured Party.

(iv)Following the Discharge of ABL Obligations and the Discharge of Term Loan Obligations, the Term Loan Security Agent shall deliver or cause to be delivered the remaining Pledged ABL Priority Collateral (if any) in its possession or in possession of its agents or bailees, together with any necessary endorsements, to the applicable Grantor to the extent no Term Loan Obligations remain outstanding (so as to allow such Person to obtain control of such Pledged ABL Priority Collateral) and will cooperate with such Grantor in assigning (without recourse to or warranty by the Term Loan Security Agent or any Term Loan Secured Party or agent or bailee thereof) control over any other Pledged ABL Priority Collateral under its control.  The Term Loan Agent further agrees to take all other action reasonably requested by such Person (at the sole cost and expense of the Grantors or such Person) in connection with such Person obtaining a first priority interest in the Pledged ABL Priority Collateral or as a court of competent jurisdiction may otherwise direct.

(h)When Discharge of ABL Obligations Deemed to Not Have Occurred.  Notwithstanding anything to the contrary herein, if concurrently with (or immediately after) the Discharge of ABL Obligations, the Company or any other Grantor enters into any Permitted Refinancing of any ABL Obligations and provides the notice referred to in the following sentence, then such Discharge of ABL Obligations shall automatically be deemed not to have occurred for all purposes of this Agreement, and the obligations under the Permitted Refinancing shall automatically be treated as ABL Obligations (together with the ABL Bank Product Agreements on the basis provided in the definition of “ABL Loan Documents” contained herein) for all purposes of this Agreement, including for purposes of the Lien priorities and rights in respect of Collateral set forth herein, the term “ABL Credit Agreement” shall be deemed appropriately modified to refer to such Permitted Refinancing and the ABL Agent under such ABL Documents shall be an ABL Agent for all purposes hereof and the new secured parties under such ABL Documents (together with the ABL Bank Product Creditors as provided herein) shall automatically be treated as ABL Secured Parties for all purposes of this Agreement.  Upon receipt of a notice from the Company stating that the Company or any other Grantor has entered into a new ABL Document in respect of a Permitted Refinancing of ABL Obligations (which notice shall include the identity of the new agent, such agent, the “New ABL Agent”), and delivery by the New ABL Agent of an Intercreditor Agreement Joinder, the Term Loan Security Agent shall promptly (i) enter into such documents and agreements (including amendments or supplements to this Agreement) as the Company and/or any Grantor or such New ABL Agent shall reasonably request in order to provide to the New ABL Agent the rights contemplated hereby, in each case consistent in all material respects with the terms of this Agreement and (ii) deliver to the New ABL Agent any Pledged ABL Priority Collateral held by the Term Loan Security Agent, together with any necessary endorsements (or otherwise allow the New ABL Agent to obtain control of such Pledged ABL Priority Collateral).  The New ABL Agent shall agree to be bound

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by the terms of this Agreement.  If the new ABL Priority Obligations under the new ABL Documents are secured by assets of the Grantors of the type constituting ABL Priority Collateral that do not also secure each of the Term Loan Priority Obligations, then each of the Term Loan Priority Obligations shall be secured at such time by a Second Priority Lien on such assets to the same extent provided in the Term Loan Security Documents with respect to the other ABL Priority Collateral.  If the new ABL Priority Obligations under the new ABL Documents are secured by assets of the Grantors of the type constituting Term Loan Priority Collateral that do not also secure each of the Term Loan Priority Obligations, then each of the Term Loan Priority Obligations shall be secured at such time by a First Priority Lien and Second Priority Lien, respectively, on such assets to the same extent provided in the Term Loan Security Documents with respect to the other Term Loan Priority Collateral.

4.5Insolvency or Liquidation Proceedings.

(a)Finance and Sale Issues — ABL Obligations.  Until the Discharge of ABL Obligations has occurred, if the Company or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding and the ABL Agent shall desire to permit the use of cash collateral (as such term is defined in Section 363(a) of the Bankruptcy Code) constituting ABL Priority Collateral or to permit the Company or any other Grantor to obtain a financing, whether from the ABL Secured Parties or any other entity under Section 364 of the Bankruptcy Code or any similar Bankruptcy Law, that is secured by a lien that is (i) senior or pari passu with the liens on the ABL Priority Collateral securing the ABL Priority Obligations and (ii) junior to the liens on the Term Loan Priority Collateral securing the Term Loan Priority Obligations (each, an “ABL DIP Financing”), then the Term Loan Security Agent, on behalf of itself and the Term Loan Secured Parties, agrees that it will not oppose or raise any objection to or contest (or join with or support any third party opposing, objecting or contesting) such use of cash collateral constituting ABL Priority Collateral or to the fact that such ABL DIP Financing may be granted Liens on the Collateral and will not request adequate protection or any other relief in connection therewith (except as expressly agreed by the ABL Agent or to the extent permitted by Section 4.5(d)), and the Term Loan Security Agent will subordinate its Liens in the ABL Priority Collateral to the Liens securing such ABL DIP Financing (and all interest and other obligations relating thereto); provided that (i) each of the Term Loan Security Agent and the other Term Loan Secured Parties retain a Lien on the Collateral to secure the Term Loan Priority Obligations, and, with respect to the Term Loan Priority Collateral only, with the same priority as existed prior to the commencement of the Insolvency or Liquidation Proceeding, (ii) to the extent that the ABL Agent is granted adequate protection in the form of a Lien and/or a superpriority administrative claim, the Term Loan Security Agent is permitted to seek (without objection from the ABL Agent or any ABL Secured Party) a Lien on Collateral arising after the commencement of the Insolvency or Liquidation Proceeding and/or a superpriority administrative claim (so long as, with respect to ABL Priority Collateral, such Lien is junior to the Liens securing such ABL DIP Financing and the ABL Priority Obligations and such superpriority administrative claim is junior to the superpriority administrative claim granted to the ABL Agent), (iii) the terms of such ABL DIP Financing or use of cash collateral do not require any Grantor to seek approval for any Plan of Reorganization that is inconsistent with this Agreement and (iv) the aggregate principal amount of the ABL DIP Financing (exclusive of ABL Bank Product Agreements, Interest Rate Protection Agreements and Other Hedging Agreements, to the extent constituting principal) shall not exceed the Maximum Exposure Amount.  The Term Loan Security Agent, on behalf of the Term Loan Secured Parties, agrees that it will not raise any objection or oppose a sale or other disposition of any ABL Priority Collateral free and clear of its Liens (subject to attachment of proceeds with respect to the Second Priority Lien on the ABL Priority Collateral in favor of the Term Loan Security Agent, in the same order and manner as otherwise set forth herein) or other claims under Section 363 of the Bankruptcy Code, except for any objection or opposition that could be asserted by any Term Loan Secured Party as an unsecured creditor in any such Insolvency or Liquidation Proceeding if the Term Loan Secured Parties have consented to such sale or disposition of such assets; provided that any of the Term Loan Security Agent or the other Term Loan Secured Parties shall be

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entitled to seek and exercise Credit Bid Rights in respect of any such sale or disposition.

(b)[Reserved].

(c)Relief from the Automatic Stay.  Until the Discharge of ABL Obligations has occurred, the Term Loan Security Agent, on behalf of itself and the Term Loan Secured Parties, agrees that none of them shall seek (or support any other Person seeking) relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding in respect of the ABL Priority Collateral without the prior written consent of the ABL Agent.

(d)Adequate Protection.  The Term Loan Security Agent, on behalf of itself and the Term Loan Secured Parties, agrees that none of them shall contest (or support any other Person contesting) (A) any request by the ABL Agent or the ABL Secured Parties for adequate protection with respect to any ABL Priority Collateral, (B) so long as the request of adequate protection is in the form of a replacement lien on the Term Loan Priority Collateral that is junior to the liens on the Term Loan Priority Collateral securing the Term Loan Priority Obligations, any request by the ABL Agent or the ABL Secured Parties for adequate protection with respect to any Term Loan Priority Collateral or (C) any objection by the ABL Agent or the ABL Secured Parties to any motion, relief, action or proceeding based on the ABL Agent or the ABL Secured Parties claiming a lack of adequate protection with respect to the ABL Priority Collateral.  Notwithstanding the foregoing provisions in this Section 4.5(d), in any Insolvency or Liquidation Proceeding, (x) if the ABL Secured Parties (or any subset thereof) are granted adequate protection in the form of additional collateral in the nature of assets constituting ABL Priority Collateral in connection with any ABL DIP Financing or use of cash collateral constituting ABL Priority Collateral and/or a superpriority administrative claim, then the Term Loan Security Agent, on behalf of itself or any of the Term Loan Secured Parties, may seek or request adequate protection in the form of a Lien on such additional collateral and/or a superpriority administrative claim (as applicable), which Lien and/or claim will be subordinated to the Liens securing the ABL Obligations and such ABL DIP Financing (and all obligations relating thereto) and/or superpriority claim granted to the ABL Agent on the same basis as the other Liens on, or claims with respect to, ABL Priority Collateral securing the Term Loan Obligations are so subordinated to the ABL Obligations under this Agreement, and (y) in the event the Term Loan Security Agent, on behalf of itself and the Term Loan Secured Parties, seeks or requests adequate protection in respect of ABL Priority Collateral securing Term Loan Obligations, and such adequate protection is granted in the form of additional collateral in the nature of assets constituting ABL Priority Collateral and/or a superpriority administrative claim, then the Term Loan Security Agent, on behalf of itself or any of the Term Loan Secured Parties, agrees that the ABL Agent shall also be granted a senior Lien on such additional collateral as security for the ABL Obligations and for any such ABL DIP Financing and/or a superpriority claim and that any Lien on such additional collateral securing the Term Loan Obligations and/or superpriority claim, as the case may be, shall be subordinated to the Liens on such collateral securing the ABL Obligations and any such ABL DIP Financing (and all obligations relating thereto) and to any other Liens and superpriority claims granted to the ABL Secured Parties as adequate protection on the same basis as the other Liens, and claims with respect to, on ABL Priority Collateral securing the Term Loan Obligations are so subordinated to such ABL Obligations under this Agreement.

Section 5.  General.

5.1Amendments; Refinancings.

(a)(i) Amendments to, and Refinancing of, Term Loan Documents.

The Term Loan Documents may be amended, restated, amended and restated,

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supplemented or otherwise modified in accordance with their terms and any Term Loan Obligations may be Refinanced, in each case, without notice to, or the consent of, the ABL Agent or the ABL Secured Parties, all without affecting the lien subordination or other provisions of this Agreement; provided, however, that any such amendment, restatement, amendment and restatement, supplement, modification or Refinancing of the Term Loan Documents shall not, without the consent of the ABL Agent:

(1)increase the maximum aggregate principal of loans or notes constituting Term Loan Obligations thereunder to an amount in excess of the Term Loan Debt Cap;

(2)change the final stated maturity date of Term Loan Obligations to a date earlier than the then applicable earliest final stated maturity date;

(3)change the scheduled amortization under the Term Loan Credit Agreement on the date hereof if the effect thereof is to increase the scheduled amortization in excess of that applicable to the loans under the Term Loan Credit Agreement (as in effect on the date hereof), other than as a result of amortization applicable to additional loans made under the Term Loan Credit Agreement after the date hereof; or

(4)contravene the provisions of this Agreement.

Subject to the provisions of the ABL Documents, the Term Loan Obligations may be Refinanced in whole or in part to the extent the terms and conditions of such Refinancing debt constituting Term Loan Obligations (or intended to constitute Term Loan Obligations after giving effect to a new intercreditor agreement pursuant to Section 8.3) meet the requirements of this Section 5.1(a) and either (x) the holders (or other agent or representative) of such Refinancing debt constituting Term Loan Obligations or intended to constitute Term Loan Obligations after giving effect to a new intercreditor agreement pursuant to Section 8.3 bind themselves in a writing addressed to the ABL Agent and the ABL Secured Parties to the terms of this Agreement (or to the extent such holders (or their agent or representative) are already bound by this Agreement by virtue of such Refinancing debt being effectuated under existing Term Loan Documents) or (y) at the request of the Company, the holders of such Refinancing debt (or their agent or representative), the ABL Agent, the Term Loan Agents (if other Term Loan Obligations remain outstanding) shall enter into a new intercreditor agreement pursuant to Section 8.3.

(ii)In the event the Term Loan Security Agent or the Term Loan Secured Parties and the relevant Grantor enter into any amendment, waiver or consent in respect of any of the Term Loan Security Documents for the purpose of adding to, or deleting from, or waiving or consenting to any departures from any provisions of, any Term Loan Security Document or changing in any manner the rights of the Term Loan Security Agent, such Term Loan Secured Parties, the Company or any other Grantor thereunder, in each case with respect to or relating to the Term Loan Priority Collateral, then such amendment, waiver or consent shall apply automatically to any comparable provision of the Comparable ABL Security Document without the consent of the ABL Agent and the ABL Secured Parties and without any action by the ABL Agent, the Company or any other Grantor; provided that (A) no such amendment, waiver or consent shall have the effect of (i) removing assets that constitute Term Loan Priority Collateral subject to the Lien of the ABL Security Documents, except to the extent that a release of such Lien is permitted or required by Section 3.4(a) and provided that there is a corresponding release of the Lien of the Term Loan Security Agent on such Term Loan Priority Collateral securing the Term Loan Obligations, (ii) imposing duties on the ABL Agent without its consent or (iii) permitting other liens on the Term Loan Priority Collateral not permitted under the terms of

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the ABL Documents or Section 3.5 and (B) notice of such amendment, waiver or consent shall have been given to the ABL Agent within ten (10) Business Days after the effective date of such amendment, waiver or consent.

(b)[Reserved].

(c)Amendments to, and Refinancing of, ABL Documents.

(i)The ABL Documents may be amended, restated, amended and restated, supplemented or otherwise modified in accordance with their terms and any ABL Obligations may be Refinanced, in each case, without notice to, or the consent of, the Term Loan Security Agent or the other Term Loan Secured Parties, all without affecting the lien subordination or other provisions of this Agreement; provided, however, that any such amendment, restatement, amendment and restatement, supplement, modification or Refinancing of the ABL Documents shall not, without the consent of the Term Loan Security Agent:

(1)increase the maximum aggregate principal of advances or loans and the aggregate stated amount of letters of credit thereunder to an amount in excess of the ABL Debt Cap; or

(2)contravene the provisions of this Agreement.

Subject to the provisions of the Term Loan Documents, the ABL Obligations may be Refinanced in whole or in part to the extent the terms and conditions of such Refinancing debt constituting ABL Obligations (or intended to constitute ABL Obligations after giving effect to a new intercreditor agreement pursuant to Section 8.3) meet the requirements of this Section 5.1(c) and either (x) the holders (or other agents or representatives) of such Refinancing debt constituting ABL Obligations (or intended to constitute ABL Obligations after giving effect to a new intercreditor agreement pursuant to Section 8.3) bind themselves in a writing addressed to the Term Loan Security Agent and the Term Loan Secured Parties to the terms of this Agreement (or to the extent such holders (or their agents or representatives) are already bound by this Agreement by virtue of such Refinancing debt being effectuated under existing ABL Documents) or (y) at the request of the Company, the holders of such Refinancing debt (or other agent or representative), the ABL Agent and the Term Loan Agents shall enter into a new intercreditor agreement pursuant to Section 8.3.

(ii)In the event the ABL Agent or the ABL Secured Parties and the relevant Grantor enter into any amendment, waiver or consent in respect of any of the ABL Security Documents for the purpose of adding to, or deleting from, or waiving or consenting to any departures from any provisions of, any ABL Security Document or changing in any manner the rights of the ABL Agent, such ABL Secured Parties, the Company or any other Grantor thereunder, in each case with respect to or relating to the ABL Priority Collateral, then such amendment, waiver or consent shall apply automatically to any comparable provision of the Comparable Term Loan Security Document without the consent of the Term Loan Security Agent or the Term Loan Secured Parties and without any action by the Term Loan Security Agent or the Term Loan Secured Parties, or the Company or any other Grantor, provided, that (A) no such amendment, waiver or consent shall have the effect of (i) removing assets that constitute ABL Priority Collateral subject to the Lien of the Term Loan Security Documents, except to the extent that a release of such Lien is permitted or required by Section 4.4(a) and provided that there is a corresponding release of the Lien of the ABL Agent on such ABL Priority Collateral securing the ABL Obligations, (ii) imposing duties on the Term Loan Security Agent without its consent or

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(iii) permitting other liens on the ABL Priority Collateral not permitted under the terms of the Term Loan Documents or Section 4.5 and (B) notice of such amendment, waiver or consent shall have been given to the Term Loan Security Agent within ten (10) Business Days after the effective date of such amendment, waiver or consent.

Each of the ABL Agent and the Term Loan Security Agent shall endeavor to give prompt notice of any amendment, waiver or consent of an ABL Document or a Term Loan Document, as the case may be, to the other Security Agent after the effective date of such amendment, waiver or consent; provided, that the failure of the ABL Agent or the Term Loan Security Agent, as the case may be, to give any such notice shall not affect the priority of the ABL Agent’s Liens or the Term Loan Security Agent’s Liens, as the case may be, on the Collateral as provided herein or the validity or effectiveness of any such notice as against the Grantors or any of their Subsidiaries.

5.2Legends.  Each Security Document that grants a Lien that is entered into on or after the date hereof shall include the following language (with any necessary modifications to give effect to applicable definitions) (or language to similar effect approved by the Security Agents):

“Notwithstanding anything herein to the contrary, the relative priorities of the liens and security interests granted to the [ABL Agent][Term Loan Security Agent] pursuant to this Agreement in any Collateral and the exercise of any right or remedy by the [ABL Agent][Term Loan Security Agent] with respect to any Collateral hereunder are subject to, and governed by, the terms of the Intercreditor Agreement, dated as of June 2, 2016 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Intercreditor Agreement”), among Wells Fargo Capital Finance, LLC, as ABL Agent, Morgan Stanley Senior Funding, Inc., as Term Loan Administrative Agent and as Term Loan Security Agent, and certain other Persons party to, or that may become party thereto from time to time, and acknowledged by AdvancePierre Foods Holdings, Inc., a Delaware corporation, Pierre Holdco, Inc., a Delaware corporation, AdvancePierre Foods, Inc., a Delaware corporation, and certain other Grantors.  In the event of any conflict between the terms hereof and the terms of the Intercreditor Agreement, the provisions of the Intercreditor Agreement shall control at any time that the Intercreditor Agreement remains in effect[, except with respect to the scope of the assets included in Section [granting clause] hereof].”

5.3Options to Purchase Obligations

(a)Option to Purchase Term Loan Obligations.  (i)  Without prejudice to the enforcement of remedies by the Term Loan Security Agent and the Term Loan Secured Parties, any Person or Persons (in each case who must meet all eligibility standards contained in all relevant Term Loan Documents) at any time or from time to time designated by the holders of more than 50% in aggregate outstanding principal amount of the ABL Obligations under the ABL Credit Agreement (an “Eligible ABL Purchaser”) shall have the right to purchase by way of assignment (and shall thereby also assume all commitments and duties of the Term Loan Secured Parties), at any time during the exercise period described in clause (iii) below of this Section 5.3(a), all, but not less than all, of the Term Loan Obligations (other than Excess Term Loan Obligations (unless such Eligible ABL Purchaser so elects in its sole discretion) and the Term Loan Obligations of a Defaulting Term Loan Secured Party), including all principal of and accrued and unpaid interest and fees on and all prepayment or acceleration penalties and premiums in respect of all such Term Loan Obligations outstanding at the time of purchase; provided that at the time of (and as a condition to) any purchase pursuant to this Section 5.3(a), all commitments pursuant to any then outstanding Term Loan Credit Agreement shall have terminated and all Term Loan Secured Hedging Agreements also shall have been terminated in accordance with their terms.  Any

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purchase pursuant to this Section 5.3(a)(i) shall be made as follows:

(1)for a purchase price equal to the sum of (A) in the case of all loans, advances or other similar extensions of credit that constitute Term Loan Obligations (other than Excess Term Loan Obligations, subject to the election of the Eligible ABL Purchaser), 100% of the principal amount thereof and all accrued and unpaid interest thereon through the date of purchase (without regard, however, to any acceleration prepayment penalties or premiums other than customary breakage costs), (B) in the case of any Term Loan Secured Hedging Agreement, the aggregate amount then owing to each Term Loan Hedging Creditor (which is a Term Loan Secured Party) thereunder pursuant to the terms of the respective Term Loan Secured Hedging Agreement, including, without limitation, all amounts owing to such Term Loan Hedging Creditor as a result of the termination (or early termination) thereof (in each case, to the extent of its interest as a Term Loan Secured Party) and (C) all accrued and unpaid fees, expenses, indemnities and other amounts (other than any prepayment penalties or premiums or similar fees or any contingent indemnification or expense reimbursement obligations) through the date of purchase;

(2)with the purchase price described in preceding clause (i)(1) payable in cash on the date of purchase against transfer to the respective Eligible ABL Purchaser or Eligible ABL Purchasers, as the case may be, (without recourse and without any representations or warranties whatsoever, whether as to the enforceability of any Term Loan Obligation or the validity, enforceability, perfection, priority or sufficiency of any Lien securing, or guarantee or other supporting obligation for, any Term Loan Obligation or as to any other matter whatsoever, except the representations and warranties (1) that the transferor owns free and clear of all Liens and encumbrances (other than participation interests not prohibited by the Term Loan Credit Agreement, in which case the purchase price described in preceding clause (i)(1) shall be appropriately adjusted so that the Eligible ABL Purchaser or Eligible ABL Purchasers, as the case may be, do not pay amounts represented by any participation interest which remains in effect), and has the right to convey, whatever claims and interests it may have in respect of the Term Loan Obligations and (2) as to the amount of its portion of the Term Loan Obligations being acquired);

(3)with the purchase price described in preceding clause (i)(1) accompanied by a waiver by the ABL Agent, on behalf of itself and the ABL Secured Parties, of all claims arising out of this Agreement and the transactions contemplated hereby as a result of exercising the purchase option contemplated by this Section 5.3(a);

(4)with all amounts payable to the various Term Loan Secured Parties in respect of the assignments described above to be distributed to them by the Term Loan Security Agent in accordance with their respective holdings of the various Term Loan Obligations; and

(5)with such purchase to be made pursuant to assignment documentation in form and substance reasonably satisfactory to, and prepared by counsel for, the Term Loan Security Agent (with the cost of such counsel to be paid by the Grantors or, if the Grantors do not make such payment, by the respective Eligible ABL Purchaser or Eligible ABL Purchasers, as the case may be, who shall have the right to obtain reimbursement of same from the Grantors) which shall also be in form and substance reasonably satisfactory to the Eligible ABL Purchasers; it being understood and agreed that the Term Loan Security Agent and each other Term Loan Secured Party shall retain all rights to indemnification as provided in the relevant Term Loan Documents for all periods prior to any assignment by them

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pursuant to the provisions of this Section 5.3(a).

(ii)The right to exercise the purchase option described in Section 5.3(a)(i) above shall be exercisable and legally enforceable upon at least ten (10) Business Days’ prior written notice of exercise (which notice, once given, (A) shall be irrevocable and fully binding on the respective Eligible ABL Purchaser or Eligible ABL Purchasers, as the case may be, except as provided in clause (iii) below and (B) shall specify a date of purchase not less than five (5) Business Days, nor more than 30 calendar days, after the date of the receipt by the Term Loan Security Agent of such notice) given to the Term Loan Security Agent by an Eligible ABL Purchaser.  Neither the Term Loan Security Agent nor any Term Loan Secured Party shall have any disclosure obligation to any Eligible ABL Purchaser, the ABL Agent or any ABL Secured Party in connection with any exercise of such purchase option.

(iii)The right to purchase the Term Loan Obligations as described in this Section 5.3(a) may be exercised (by giving the irrevocable written notice described in the preceding clause (ii)) during the period that (1) begins on the date occurring three (3) Business Days after the first to occur of (x) the date of the acceleration of the final maturity of the loans under the Term Loan Credit Agreement, (y) the occurrence of the final maturity of the loans under the Term Loan Credit Agreement or (z) the occurrence of an Insolvency or Liquidation Proceeding with respect to the Company or any other Grantor which constitutes an event of default under the Term Loan Credit Agreement (in each case, so long as the acceleration, failure to pay amounts due at final maturity or such Insolvency or Liquidation Proceeding constituting an event of default has not been rescinded or cured within ten (10) Business Days after any such event, and so long as any unpaid amounts constituting Term Loan Obligations remain owing); provided that if there is any failure to meet the condition described in the proviso of preceding clause (i) hereof, the aforementioned date shall be extended until the first date upon which such condition is satisfied, and (2) ends on the 120th day after the start of the period described in clause (1) above.

(iv)The obligations of the Term Loan Secured Parties to sell their respective Term Loan Obligations under this Section 5.3(a) are several and are not joint and several.  To the extent any Term Loan Secured Party breaches its obligation to sell its Term Loan Obligations under this Section 5.3(a) (a “Defaulting Term Loan Secured Party”), nothing in this Section 5.3(a) shall be deemed to require the Term Loan Security Agent or any Term Loan Secured Party to purchase such Defaulting Term Loan Secured Party’s Term Loan Obligations for resale to the holders of the ABL Obligations, and in all cases, the Term Loan Security Agent and each Term Loan Secured Party complying with the terms of this Section 5.3(a) shall not be deemed to be in default of this Agreement or otherwise be deemed liable for any action or inaction of any Defaulting Term Loan Secured Party; provided that nothing in this clause (iv) shall require any Eligible ABL Purchaser to purchase less than all of the Term Loan Obligations.

(v)Each Grantor irrevocably consents to any assignment effected to one or more Eligible ABL Purchasers pursuant to this Section 5.3(a) (so long as they meet all eligibility standards contained in all relevant Term Loan Documents, other than obtaining the consent of any Grantor to an assignment to the extent required by such Term Loan Documents) for purposes of all Term Loan Documents and hereby agrees that no further consent to any such assignment pursuant to this Section 5.3(a) from such Grantor shall be required.

(b)Option to Purchase ABL Obligations.

(i)Without prejudice to the enforcement of remedies by the ABL Agent and the

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ABL Secured Parties, any Person or Persons (in each case who must meet all eligibility standards contained in all relevant ABL Documents) at any time or from time to time designated by the holders of more than 50% in aggregate outstanding principal amount of the Term Loan Obligations under the Term Loan Credit Agreement (an “Eligible Term Loan Purchaser”) (provided that, in the case of this Section 5.3(b), a Person meeting all eligibility standards contained in all relevant ABL Documents shall constitute an Eligible Term Loan Purchaser irrespective of whether such Person meets the eligibility standards contained in the Term Loan Documents), in each case, shall have the right to purchase by way of assignment (and shall thereby also assume all commitments and duties of the ABL Secured Parties other than in respect of services giving rise to ABL Bank Product Obligations), at any time during the exercise period described in clause (iii) below of this Section 5.3(b), all, but not less than all, of the ABL Obligations (other than Excess ABL Obligations (unless such Eligible Term Loan Purchaser so elects in its sole discretion) and the ABL Obligations of a Defaulting ABL Secured Party), including all principal of and accrued and unpaid interest and fees on and all prepayment or acceleration penalties and premiums in respect of all ABL Priority Obligations outstanding at the time of purchase; provided that at the time of (and as a condition to) any purchase pursuant to this Section 5.3(b), all commitments pursuant to any then outstanding ABL Credit Agreement shall have terminated.  Any purchase pursuant to this Section 5.3(b)(i) shall be made as follows:

(1)for (x) a purchase price equal to the sum of (A) in the case of all loans, advances or other similar extensions of credit that constitute ABL Obligations (other than Excess ABL Obligations, subject to the election of the Eligible Term Loan Purchaser and including unreimbursed amounts drawn in respect of letters of credit, but excluding the undrawn amount of then outstanding letters of credit and excluding ABL Bank Product Obligations), 100% of the principal amount thereof and all accrued and unpaid interest thereon through the date of purchase (without regard, however, to any acceleration or other prepayment penalties or premiums other than customary breakage costs), (B) in the case of any ABL Bank Product Obligations, cash collateral in such amounts as the ABL Agent reasonably determines is necessary to secure the ABL Agent and the other ABL Secured Parties in connection with such ABL Bank Product Obligations, (C) in the case of the undrawn amount of then outstanding letters of credit, cash collateral in the amount of 105% of the aggregate undrawn amount of such letters of credit, and (D) all accrued and unpaid fees, expenses, indemnities and other amounts (other than any prepayment penalties or premiums or similar fees) through the date of purchase; and (y) an obligation on the part of the respective Eligible Term Loan Purchasers (which shall be expressly provided in the assignment documentation described below) to reimburse each issuing lender (or any ABL Secured Party required to pay same) for all amounts thereafter drawn with respect to any letters of credit constituting ABL Obligations which remain outstanding after the date of any purchase pursuant to this Section 5.3(b), together with all facing fees and other amounts which may at any future time be owing to the respective issuing lender with respect to such letters of credit; it being understood and agreed that (x) if at any time those amounts (if any) then on deposit with the ABL Agent as described in clause (C) above exceed 105% of the sum of the aggregate undrawn amount of all then outstanding letters of credit, such excess shall be returned to the respective Eligible Term Loan Purchaser or Eligible Term Loan Purchasers, as the case may be, (as their interests appear), (y) at such time as all letters of credit have been cancelled, expired or been fully drawn, as the case may be, any excess cash collateral deposited as described above in clause (C) (and not previously applied or released as provided above) shall be returned to the respective Eligible Term Loan Purchaser or Eligible Term Loan Purchasers, as the case may be, as their interests appear and (z) at such time as all ABL Bank Product Agreements have been terminated, any excess cash collateral deposited as described above in clause (B) (and not previously applied or released as

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provided above) shall be returned to the respective Eligible Term Loan Purchaser or Eligible Term Loan Purchasers, as the case may be, as their interests appear;

(2)with the purchase price described in the preceding clause (i)(1)(x) payable in cash on the date of purchase against transfer to the respective Eligible Term Loan Purchaser or Eligible Term Loan Purchasers, as the case may be (without recourse and without any representations or warranties whatsoever, whether as to the enforceability of any ABL Obligation or the validity, enforceability, perfection, priority or sufficiency of any Lien securing, or guarantee or other supporting obligation for, any ABL Obligation or as to any other matter whatsoever, except the representations and warranties (1) that the transferor owns free and clear of all Liens and encumbrances (other than participation interests not prohibited by the ABL Credit Agreement, in which case the purchase price described in the preceding clause (i)(1)(x) shall be appropriately adjusted so that the Eligible Term Loan Purchaser or Eligible Term Loan Purchasers, as the case may be, do not pay amounts represented by any participation interest which remains in effect), and has the right to convey, whatever claims and interests it may have in respect of the ABL Obligations and (2) as to the amount of its portion of the ABL Obligations being acquired; provided that the purchase price in respect of any outstanding letter of credit that remains undrawn on the date of purchase shall be payable in cash as and when such letter of credit is drawn upon (i) first, from the cash collateral account described in clause (i)(1)(x)(C) above, until the amounts contained therein have been exhausted, and (ii) thereafter, directly by the respective Eligible Term Loan Purchaser or Eligible Term Loan Purchasers, as the case may be;

(3)with the purchase price described in the preceding clause (i)(1)(x) accompanied by a waiver by the Term Loan Security Agent, on behalf of itself and the other Term Loan Secured Parties, of all claims arising out of this Agreement and the transactions contemplated hereby as a result of exercising the purchase option contemplated by this Section 5.3(b);

(4)with all amounts payable to the various ABL Secured Parties in respect of the assignments described above to be distributed to them by the ABL Agent in accordance with their respective holdings of the various ABL Obligations; and

(5)with such purchase to be made pursuant to assignment documentation in form and substance reasonably satisfactory to, and prepared by counsel for, the ABL Agent (with the cost of such counsel to be paid by the Grantors or, if the Grantors do not make such payment, by the respective Eligible Term Loan Purchaser or Eligible Term Loan Purchasers, as the case may be, who shall have the right to obtain reimbursement of same from the Grantors), which shall also be in form and substance reasonably satisfactory to the Eligible Term Loan Purchasers; it being understood and agreed that the ABL Agent and each other ABL Secured Party shall retain all rights to indemnification as provided in the relevant ABL Documents for all periods prior to any assignment by them pursuant to the provisions of this Section 5.3(b).

(ii)The right to exercise the purchase option described in Section 5.3(b)(i) above shall be exercisable and legally enforceable upon at least five (5) Business Days’ prior written notice of exercise (which notice, once given, (A) shall be irrevocable and fully binding on the respective Eligible Term Loan Purchaser or Eligible Term Loan Purchasers, as the case may be, except as provided in clause (iii) below and (B) shall specify a date of purchase not less than five (5) Business Days, nor more than 30 calendar days, after the date of the receipt by the ABL Agent of such notice) given to the ABL Agent by an Eligible Term Loan Purchaser.  Neither the ABL

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Agent nor any ABL Secured Party shall have any disclosure obligation to any Eligible Term Loan Purchaser, the Term Loan Security Agent or any Term Loan Secured Party in connection with any exercise of such purchase option.

(iii)The right to purchase the ABL Obligations as described in this Section 5.3(b) may be exercised (by giving the irrevocable written notice described in the preceding clause (ii)) during the period that (1) begins on the date occurring three (3) Business Days after the first to occur of (x) the date of the acceleration of the final maturity of the loans under the ABL Credit Agreement, (y) the occurrence of the final maturity of the loans under the ABL Credit Agreement or (z) the occurrence of an Insolvency or Liquidation Proceeding with respect to the Company or any Grantor which constitutes an event of default under the ABL Credit Agreement (in each case, so long as the acceleration, failure to pay amounts due at final maturity or such Insolvency or Liquidation Proceeding constituting an event of default has not been rescinded or cured within 10 Business Days after any such event, and so long as any unpaid amounts constituting ABL Obligations remain owing); provided that if there is any failure to meet the condition described in the proviso of preceding clause (i) hereof, the aforementioned date shall be extended until the first date upon which such condition is satisfied, and (2) ends on the 120th day after the start of the period described in clause (1) above.

(iv)The obligations of the ABL Secured Parties to sell their respective ABL Obligations under this Section 5.3(b) are several and not joint and several.  To the extent any ABL Secured Party breaches its obligation to sell its ABL Obligations under this Section 5.3(b) (a “Defaulting ABL Secured Party”), nothing in this Section 5.3(b) shall be deemed to require the ABL Agent or any other ABL Secured Party to purchase such Defaulting ABL Secured Party’s ABL Obligations for resale to the holders of Term Loan Obligations, and in all cases, the ABL Agent and each ABL Secured Party complying with the terms of this Section 5.3(b) shall not be deemed to be in default of this Agreement or otherwise be deemed liable for any action or inaction of any Defaulting ABL Secured Party; provided that nothing in this clause (iv) shall require any Eligible Term Loan Purchaser to purchase less than all of the ABL Obligations.

(v)Each Grantor irrevocably consents to any assignment effected to one or more Eligible Term Loan Purchasers pursuant to this Section 5.3(b) (so long as they meet all eligibility standards contained in all relevant ABL Documents other than obtaining the consent of any Grantor to an assignment to the extent required by such ABL Documents) for purposes of all ABL Documents hereby agrees that no further consent to any such assignment pursuant to this Section 5.3(b) from such Grantor shall be required.

5.4Insolvency or Liquidation Proceedings Generally.

(a)No Waiver.

(i)Subject to the proviso in clause (ii) of Section 3.1(a), nothing contained herein shall prohibit or in any way limit the Term Loan Security Agent or any Term Loan Secured Party from objecting in any Insolvency or Liquidation Proceeding or otherwise to any action taken by the ABL Agent or any ABL Secured Party in respect of the Term Loan Priority Collateral, including the seeking by the ABL Agent or any ABL Secured Party of adequate protection in respect thereof or the asserting by the ABL Agent or any ABL Secured Party of any of its rights and remedies under the ABL Documents, or otherwise in respect thereof.

(ii)[Reserved].

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(iii)Subject to the proviso in clause (ii) of Section 4.1(a), nothing contained herein shall prohibit or in any way limit the ABL Agent or any ABL Secured Party from objecting in any Insolvency or Liquidation Proceeding or otherwise to any action taken by the Term Loan Security Agent or any Term Loan Secured Parties in respect of the ABL Priority Collateral, including the seeking by the Term Loan Security Agent, or any Term Loan Secured Parties, of adequate protection in respect thereof or the asserting by the Term Loan Security Agent or any Term Loan Secured Parties of any of its rights and remedies under the Term Loan Documents or otherwise in respect thereof.

(iv)Nothing contained herein shall prohibit or in any way limit the Term Loan Security Agent or any Term Loan Secured Party, or the ABL Agent or any ABL Secured Party from seeking in any Insolvency or Liquidation Proceeding the allowance or payment of current incurred fees and expenses (as adequate protection or otherwise).

(b)Reorganization Securities.  If, in any Insolvency or Liquidation Proceeding, debt obligations of the reorganized debtor secured by Liens upon any property of the reorganized debtor are distributed, pursuant to a plan of reorganization or similar dispositive restructuring plan, on account of any two or more of the Term Loan Obligations and the ABL Obligations, then, to the extent the debt obligations distributed on account of such Term Loan Obligations or such ABL Obligations are secured by Liens upon the same property, the provisions of this Agreement will survive the distribution of such debt obligations pursuant to such plan and will apply with like effect to the Liens securing such debt obligations.

(c)Post-Petition Interest.

(i)None of the ABL Agent or any ABL Secured Party shall oppose or seek to challenge any claim by the Term Loan Security Agent or any Term Loan Secured Party for allowance in any Insolvency or Liquidation Proceeding of Term Loan Obligations consisting of post-petition interest, fees or expenses to the extent of the value of the Term Loan Secured Party’s Lien on the Term Loan Priority Collateral (without regard to the existence of the junior Liens of the ABL Agent, on behalf of the ABL Secured Parties on the Term Loan Priority Collateral) or the ABL Priority Collateral (after taking into account the existence of the senior Liens on the ABL Priority Collateral of the ABL Agent, on behalf of the ABL Secured Parties, on the ABL Priority Collateral).

(ii)None of the Term Loan Security Agent or any Term Loan Secured Party shall oppose or seek to challenge any claim by the ABL Agent or any ABL Secured Party for allowance in any Insolvency or Liquidation Proceeding of ABL Obligations consisting of post-petition interest, fees or expenses to the extent of the value of the ABL Secured Party’s Lien on the Term Loan Priority Collateral (after taking into account the existence of the senior Liens of the Term Loan Security Agent, on behalf of the Term Loan Secured Parties on the Term Loan Priority Collateral) or the ABL Priority Collateral (without regard to the existence of the junior Liens of the Term Loan Security Agent, on behalf of the Term Loan Secured Parties on the ABL Priority Collateral).

(d)Waiver.

(i)The ABL Agent, on behalf of itself and the ABL Secured Parties, waives any claim it may hereafter have against any Term Loan Secured Party arising out of the election of such Term Loan Secured Party, of the application of Section 1111(b)(2) of the Bankruptcy Code, and/or out of any cash collateral or financing arrangement or out of any grant of a security

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interest in connection with the Term Loan Priority Collateral in any Insolvency or Liquidation Proceeding.

(ii)The Term Loan Security Agent, on behalf of itself and the Term Loan Secured Parties, waives any claim it may hereafter have against any ABL Secured Party arising out of the election of such ABL Secured Party of the application of Section 1111(b)(2) of the Bankruptcy Code, and/or out of any cash collateral or financing arrangement or out of any grant of a security interest in connection with the ABL Priority Collateral in any Insolvency or Liquidation Proceeding.

5.5Reliance; Waivers; Etc.

(a)Reliance.

(i)Other than any reliance on the terms of this Agreement, the ABL Agent, on behalf of itself and the ABL Secured Parties, acknowledges that it and such ABL Secured Parties have, independently and without reliance on the Term Loan Security Agent or any Term Loan Secured Parties, and based on documents and information deemed by them appropriate, made their own credit analysis and decision to enter into the ABL Documents and be bound by the terms of this Agreement and they will continue to make their own credit decision in taking or not taking any action under the ABL Credit Agreement or this Agreement.

(ii)Other than any reliance on the terms of this Agreement, the Term Loan Security Agent, on behalf of itself and the Term Loan Secured Parties, acknowledges that it and such Term Loan Secured Parties have, independently and without reliance on the ABL Agent or any ABL Secured Parties, and based on documents and information deemed by them appropriate, made their own credit analysis and decision to enter into the Term Loan Documents and be bound by the terms of this Agreement and they will continue to make their own credit decision in taking or not taking any action under the Term Loan Credit Agreement or this Agreement.

(b)No Warranties or Liability.

(i)Each of the Term Loan Security Agent, on behalf of itself and the Term Loan Secured Parties, acknowledges and agrees that the ABL Agent and the ABL Secured Parties have made no express or implied representation or warranty, including with respect to the execution, validity, legality, completeness, collectability or enforceability of any of the ABL Documents, the ownership of any Collateral or the perfection or priority of any Liens thereon.  The ABL Secured Parties will be entitled to manage and supervise their respective loans and extensions of credit under their respective ABL Documents in accordance with law and as they may otherwise, in their sole discretion, deem appropriate.  The ABL Agent and the ABL Secured Parties shall have no duty to the Term Loan Security Agent or any of the Term Loan Secured Parties to act or refrain from acting in a manner which allows, or results in, the occurrence or continuance of an event of default or default under any agreements with the Company or any other Grantor (including the ABL Documents and the Term Loan Documents), regardless of any knowledge thereof which they may have or be charged with.

(ii)Each of the ABL Agent, on behalf of itself and the ABL Secured Parties, acknowledges and agrees that the Term Loan Security Agent and the Term Loan Secured Parties have made no express or implied representation or warranty, including with respect to the execution, validity, legality, completeness, collectability or enforceability of any of the Term Loan Documents, the ownership of any Collateral or the perfection or priority of any Liens

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thereon.  The Term Loan Secured Parties will be entitled to manage and supervise their respective loans and extensions of credit under their respective Term Loan Documents in accordance with law and as they may otherwise, in their sole discretion, deem appropriate.  The Term Loan Security Agent and the Term Loan Secured Parties shall have no duty to the ABL Agent or any of the ABL Secured Parties to act or refrain from acting in a manner which allows, or results in, the occurrence or continuance of an event of default or default under any agreements with the Company or any other Grantor (including the ABL Documents and the Term Loan Documents), regardless of any knowledge thereof which they may have or be charged with.

(c)No Waiver of Lien Priorities — ABL Obligations.

(i)No right of the ABL Secured Parties, the ABL Agent or any of them to enforce any provision of this Agreement or any ABL Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor or by any act or failure to act by any ABL Secured Party or the ABL Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the ABL Documents or any of the Term Loan Documents, regardless of any knowledge thereof which the ABL Agent or the ABL Secured Parties, or any of them, may have or be otherwise charged with.

(ii)Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company and the other Grantors under the ABL Documents and subject to the provisions of Sections 4.5(d) and 5.1(c)), the ABL Secured Parties, the ABL Agent or any of them may, at any time and from time to time in accordance with the ABL Documents and/or applicable law, without the consent of, or notice to, the Term Loan Security Agent or any Term Loan Secured Party, without incurring any liabilities to the Term Loan Security Agent or any Term Loan Secured Parties and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Term Loan Security Agent or any Term Loan Secured Party is affected, impaired or extinguished thereby) do any one or more of the following:

(A)Subject to the ABL Debt Cap (but excluding, for the avoidance of doubt, any ABL DIP Financing provided by the ABL Secured Parties), make loans and advances to any Grantor or issue, guaranty or obtain letters of credit for account of any Grantor or otherwise extend credit to any Grantor, in any amount and on any terms, whether pursuant to a commitment or as a discretionary advance and whether or not any default or event of default or failure of condition is then continuing;

(B)change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter the terms of, any of the ABL Obligations or any Lien on any ABL Priority Collateral or guaranty thereof or any liability of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the ABL Obligations, without any restriction as to the amount, tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens on the ABL Priority Collateral held by the ABL Agent or any of the ABL Secured Parties, the ABL Obligations or any of the ABL Documents;

(C)sell, exchange, realize upon, enforce or otherwise deal with in any manner (subject to the terms hereof) and in any order any part of the ABL Priority Collateral or any liability of the Company or any other Grantor to the ABL Secured Parties or the ABL Agent, or

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any liability incurred directly or indirectly in respect thereof;

(D)settle or compromise any ABL Obligation or any other liability of the Company or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof; and

(E)exercise or delay in or refrain from exercising any right or remedy against the Company or any other Grantor or any other Person, elect any remedy and otherwise deal freely with the Company, any other Grantor or any ABL Priority Collateral and any security and any guarantor or any liability of the Company or any other Grantor to the ABL Secured Parties or any liability incurred directly or indirectly in respect thereof.

(iii)The Term Loan Security Agent, on behalf of itself and the Term Loan Secured Parties, also agrees that the ABL Secured Parties and the ABL Agent shall have no liability to the Term Loan Security Agent or any Term Loan Secured Party and the Term Loan Security Agent, on behalf of itself and the Term Loan Secured Parties, hereby waives any claim against any ABL Secured Party or the ABL Agent, arising out of any and all actions which the ABL Secured Parties or the ABL Agent may take or permit or omit to take with respect to:

(A)the ABL Documents (other than this Agreement);

(B)the collection of the ABL Obligations; or

(C)the foreclosure upon, or sale, liquidation or other disposition of, any ABL Priority Collateral.

The Term Loan Security Agent, on behalf of itself and the Term Loan Secured Parties, agrees that the ABL Secured Parties and the ABL Agent have no duty to the Term Loan Security Agent or the Term Loan Secured Parties in respect of the maintenance or preservation of the ABL Priority Collateral, the ABL Obligations or otherwise.

(d)No Waiver of Lien Priorities — Term Loan Obligations.

(i)No right of the Term Loan Secured Parties, the Term Loan Security Agent or any of them to enforce any provision of this Agreement or any Term Loan Document, shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor or by any act or failure to act by any Term Loan Secured Party or the Term Loan Security Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the Term Loan Documents or any of the ABL Documents, regardless of any knowledge thereof which the Term Loan Security Agent or the Term Loan Secured Parties, or any of them, may have or be otherwise charged with.

(ii)Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company and the other Grantors under the Term Loan Documents and subject to the provisions of Sections 3.5(c) and 5.1(a)), the Term Loan Secured Parties, the Term Loan Security Agent or any of them may, at any time and from time to time in accordance with the Term Loan Documents and/or applicable law, without the consent of, or notice to, the ABL Agent or any ABL Secured Party, without incurring any liabilities to the ABL Agent or any ABL Secured Party and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the ABL Agent or any ABL Secured Party is affected, impaired or extinguished thereby) do any one or more of the

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following:

(1)subject to the Term Loan Debt Cap (but excluding, for the avoidance of doubt, any Term Loan DIP Financing provided by the Term Loan Secured Parties), make loans and advances to any Grantor or issue, guaranty or obtain letters of credit for account of any Grantor or otherwise extend credit to any Grantor, in any amount and on any terms, whether pursuant to a commitment or as a discretionary advance and whether or not any default or event of default or failure of condition is then continuing;

(2)change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the Term Loan Obligations or any Term Loan Lien on any Term Loan Priority Collateral or, after Discharge of the ABL Obligations, any ABL Priority Collateral, or guaranty thereof or any liability of any of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the Term Loan Obligations, without any restriction as to the amount, tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Term Loan Lien on the Term Loan Priority Collateral or, after Discharge of ABL Obligations, the ABL Priority Collateral, held by the Term Loan Security Agent or any of the Term Loan Secured Parties, the Term Loan Obligations or any of the Term Loan Documents;

(3)sell, exchange, realize upon, enforce or otherwise deal with in any manner (subject to the terms hereof) and in any order any part of the Term Loan Priority Collateral, or, after Discharge of ABL Obligations, the ABL Priority Collateral, or any liability of the Company or any other Grantor to the Term Loan Secured Parties or the Term Loan Security Agent, or any liability incurred directly or indirectly in respect thereof;

(4)settle or compromise any Term Loan Obligation or any other liability of the Company or any other Grantor or any security therefor or any liability, in each case, incurred directly or indirectly in respect thereof; and

(5)exercise, or delay in, or refrain from, exercising any right or remedy against the Company or any other Grantor or any other Person, elect any remedy and otherwise deal freely with the Company, any other Grantor or any Term Loan Priority Collateral, or, after Discharge of ABL Obligations, the ABL Priority Collateral, and any security and any guarantor or any liability of the Company or any other Grantor to the Term Loan Secured Parties or any liability incurred directly or indirectly in respect thereof.

(iii)The ABL Agent, on behalf of itself and the ABL Secured Parties, also agrees that the Term Loan Secured Parties and the Term Loan Security Agent shall have no liability to the ABL Agent or any ABL Secured Party, and the ABL Agent, on behalf of itself and the ABL Secured Parties, hereby waives any claim against any Term Loan Secured Party or the Term Loan Security Agent, arising out of any and all actions which the Term Loan Secured Parties or the Term Loan Security Agent may take or permit or omit to take with respect to:

(1)the Term Loan Documents (other than this Agreement);

(2)the collection of the Term Loan Obligations; or

(3)the foreclosure upon, or sale, liquidation or other disposition of, any Term Loan Priority Collateral or, after Discharge of ABL Obligations, the ABL Priority Collateral.

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Except as otherwise required by this Agreement, each of the ABL Agent, on behalf of itself and the ABL Secured Parties, agrees that the Term Loan Secured Parties and the Term Loan Security Agent have no duty to the ABL Agent or the ABL Secured Parties in respect of the maintenance or preservation of the Term Loan Priority Collateral or, after Discharge of ABL Obligations, the ABL Priority Collateral, the Term Loan Obligations or otherwise.

(iv)The ABL Agent, on behalf of itself and the ABL Secured Parties, agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of, any marshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Term Loan Priority Collateral, or, after Discharge of ABL Obligations, the ABL Priority Collateral, or any other similar rights a junior secured creditor may have under applicable law.

(e)[Reserved].

(f)Obligations Unconditional.  All rights, interests, agreements and obligations of the ABL Agent and the ABL Secured Parties, and the Term Loan Security Agent and the Term Loan Secured Parties, respectively, hereunder shall remain in full force and effect irrespective of:

(i)any lack of validity or enforceability of any ABL Document or any Term Loan Document;

(ii)except as otherwise set forth in this Agreement, any change permitted hereunder in the time, manner or place of payment of, or in any other terms of, all or any of the ABL Obligations or Term Loan Obligations, or any amendment or waiver or other modification permitted hereunder, whether by course of conduct or otherwise, of the terms of any ABL Document or any Term Loan Document;

(iii)except as otherwise set forth in this Agreement, any exchange of any security interest in any ABL Priority Collateral or any Term Loan Priority Collateral or any amendment, waiver or other modification permitted hereunder, whether in writing or by course of conduct or otherwise, of all or any of the ABL Obligations or Term Loan Obligations;

(iv)the commencement of any Insolvency or Liquidation Proceeding in respect of the Company or any other Grantor; or

(v)any other circumstances which otherwise might constitute a defense available to, or a discharge of, the Company or any other Grantor in respect of the ABL Obligations, or of the Term Loan Security Agent or any Term Loan Secured Party in respect of this Agreement.

Section 6.  Cooperation with Respect to ABL Priority Collateral.

6.1Consent to License to Use Intellectual Property.  The Term Loan Security Agent (and any purchaser, assignee or transferee of assets as provided in Section 6.3) (a) consents (without any representation, warranty or obligation whatsoever) to the grant by any Grantor to the ABL Agent of a non-exclusive royalty-free license to use for a period not to exceed 120 days (commencing with the initiation of any enforcement of Liens by the Term Loan Security Agent (provided that the ABL Agent has received notice thereof) or by the ABL Agent) any Patent, Trademark or proprietary information of such Grantor that is subject to a Lien held by the Term Loan Security Agent (or any Patent, Trademark or proprietary information acquired by such purchaser, assignee or transferee from any Grantor, as the case may be) and (b) grants, in its capacity as a secured party (or as a purchaser, assignee or transferee, as the

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case may be), to the ABL Agent a non-exclusive royalty-free license to use for a period not to exceed 120 days (commencing with (x) the initiation of any enforcement of Liens by the Term Loan Security Agent (provided that the ABL Agent has received notice thereof) or by the ABL Agent or (y) the purchase, assignment or transfer, as the case may be) any Patent, Trademark or proprietary information that is subject to a Lien held by the Term Loan Security Agent (or subject to such purchase, assignment or transfer, as the case may be), in each case in connection with the enforcement of any Lien held by the ABL Agent upon any Inventory or other ABL Priority Collateral of any Grantor and to the extent the use of such Patent, Trademark or proprietary information is necessary or appropriate, in the good faith opinion of the ABL Agent, to process, ship, produce, store, complete, supply, lease, sell or otherwise dispose of any such inventory in any lawful manner.  The 120 day license periods shall be tolled during the pendency of any Insolvency or Liquidation Proceeding of any Grantor pursuant to which the ABL Agent is effectively stayed from enforcing its rights and remedies with respect to the ABL Priority Collateral.

6.2Access to Information.  If the Term Loan Security Agent takes actual possession of any documentation of a Grantor (whether such documentation is in the form of a writing or is stored in any data equipment or data record in the physical possession of the Term Loan Security Agent), then upon the reasonable request of the ABL Agent and reasonable advance notice, the Term Loan Security Agent will permit the ABL Agent or its representative to inspect and copy such documentation.

6.3Access to Property to Process and Sell Inventory.  (a)  (i)  If the ABL Agent commences any action or proceeding with respect to any of its rights or remedies (including, but not limited to, any action of foreclosure), enforcement, collection or execution with respect to the ABL Priority Collateral (“ABL Priority Collateral Enforcement Actions”) or if of the Term Loan Security Agent commences any action or proceeding with respect to any of its rights or remedies (including any action of foreclosure), enforcement, collection or execution with respect to the Term Loan Priority Collateral and the Term Loan Security Agent (or a purchaser at a foreclosure sale conducted in foreclosure of any Term Loan Security Agent’s Liens) takes actual or constructive possession of Term Loan Priority Collateral of any Grantor (“Term Loan Priority Collateral Enforcement Actions”), then the Term Loan Secured Parties and the Term Loan Security Agent shall (subject to, in the case of any Term Loan Priority Collateral Enforcement Action, a prior written request by the ABL Agent to the Term Loan Security Agent (the “Term Loan Priority Collateral Enforcement Action Notice”)) (x) cooperate with the ABL Agent (and with its officers, employees, representatives and agents) in its efforts to conduct ABL Priority Collateral Enforcement Actions in the ABL Priority Collateral and to finish any work-in-process and process, ship, produce, store, complete, supply, lease, sell or otherwise handle, deal with, assemble or dispose of, in any lawful manner, the ABL Priority Collateral, (y) not hinder or restrict in any respect the ABL Agent from conducting ABL Priority Collateral Enforcement Actions in the ABL Priority Collateral or from finishing any work-in-process or processing, shipping, producing, storing, completing, supplying, leasing, selling or otherwise handling, dealing with, assembling or disposing of, in any lawful manner, the ABL Priority Collateral, and (z) permit the ABL Agent, its employees, agents, advisers and representatives, at the cost and expense of the ABL Secured Parties (but with the Grantors’ reimbursement and indemnity obligation with respect thereto), to enter upon and use the Term Loan Priority Collateral (including, without limitation, equipment, processors, computers and other machinery related to the storage or processing of records, documents or files and intellectual property), for a period commencing on (I) the date of the initial ABL Priority Collateral Enforcement Action or the date of delivery of the Term Loan Priority Collateral Enforcement Action Notice, as the case may be, and (II) ending on the earlier of the date occurring 120 days thereafter and the date on which all ABL Priority Collateral (other than ABL Priority Collateral abandoned by the ABL Agent in writing) has been removed from the Term Loan Priority Collateral (such period, the “ABL Priority Collateral Processing and Sale Period”), for purposes of:

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(A)assembling and storing the ABL Priority Collateral and completing the processing of and turning into finished goods any ABL Priority Collateral consisting of work-in-process;

(B)selling any or all of the ABL Priority Collateral located in or on such Term Loan Priority Collateral, whether in bulk, in lots or to customers in the ordinary course of business or otherwise;

(C)removing and transporting any or all of the ABL Priority Collateral located in or on such Term Loan Priority Collateral;

(D)otherwise processing, shipping, producing, storing, completing, supplying, leasing, selling or otherwise handling, dealing with, assembling or disposing of, in any lawful manner, the ABL Priority Collateral; and/or

(E)taking reasonable actions to protect, secure and otherwise enforce the rights or remedies of the ABL Secured Parties and/or the ABL Agent (including with respect to any ABL Priority Collateral Enforcement Actions) in and to the ABL Priority Collateral;

provided, however, that nothing contained in this Agreement shall restrict the rights of the Term Loan Security Agent from selling, assigning or otherwise transferring any Term Loan Priority Collateral prior to the expiration of such ABL Priority Collateral Processing and Sale Period if the purchaser, assignee or transferee thereof agrees in writing (for the benefit of the ABL Agent and the ABL Secured Parties) to be bound by the provisions of this Section 6.  If any stay or other order prohibiting the exercise of remedies with respect to the ABL Priority Collateral has been entered by a court of competent jurisdiction, such ABL Priority Collateral Processing and Sale Period shall be tolled during the pendency of any such stay or other order.

(ii)During the period of actual occupation, use and/or control by the ABL Secured Parties and/or the ABL Agent (or their respective employees, agents, advisers and representatives) of any Term Loan Priority Collateral, the ABL Secured Parties and the ABL Agent shall be obligated to repair at their expense any physical damage to such Term Loan Priority Collateral resulting from such occupancy, use or control, and to leave such Term Loan Priority Collateral in substantially the same condition as it was at the commencement of such occupancy, use or control, ordinary wear and tear excepted.  Notwithstanding the foregoing, in no event shall the ABL Secured Parties or the ABL Agent have any liability to the Term Loan Secured Parties and/or the Term Loan Security Agent pursuant to this Section 6.3(a) as a result of any condition (including any environmental condition, claim or liability) on or with respect to the Term Loan Priority Collateral existing prior to the date of the exercise by the ABL Secured Parties (or the ABL Agent, as the case may be) of their rights under this Section 6.3(a) and the ABL Secured Parties shall have no duty or liability to maintain the Term Loan Priority Collateral in a condition or manner better than that in which it was maintained prior to the use thereof by the ABL Secured Parties, or for any diminution in the value of the Term Loan Priority Collateral that results from ordinary wear and tear resulting from the use of the Term Loan Priority Collateral by the ABL Secured Parties in the manner and for the time periods specified under this Section 6.3(a).  Without limiting the rights granted in this Section 6.3(a), the ABL Secured Parties and the ABL Agent shall cooperate with the Term Loan Secured Parties and/or the Term Loan Security Agent in connection with any efforts made by the Term Loan Secured Parties and/or the Term Loan Security Agent to sell the Term Loan Priority Collateral.

(b)The ABL Secured Parties shall (i) use the Term Loan Priority Collateral in

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accordance with applicable law; (ii) obtain insurance for damage to property and liability to persons, including property and liability insurance, substantially similar to the insurance maintained by Grantors, naming the Term Loan Security Agent as mortgagee, loss payee and additional insured, at no cost to the Term Loan Secured Parties, but only to the extent such insurance is not otherwise in effect; and (iii) indemnify each of the Term Loan Secured Parties from any claim, loss, damage, cost or liability arising out of any claim asserted by any third party as a result of any acts or omissions by the ABL Agent, or any of its agents or representatives, in connection with the exercise by the ABL Secured Parties of their rights of access set forth in this Section 6.3.  In no event shall any ABL Secured Party have any liability to the Term Loan Secured pursuant to this Section 6.3(b) or otherwise as a result of any condition on or with respect to the Term Loan Priority Collateral existing prior to the date of the exercise by the ABL Secured Parties of their access rights under this Section 6.3(b), and the ABL Secured Parties shall have no duty or liability to maintain the Term Loan Priority Collateral in a condition or manner better than that in which it was maintained prior to the access and/or use thereof by the ABL Secured Parties.

(c)The Term Loan Security Agent (x) shall, at the request of the ABL Agent, provide reasonable cooperation to the ABL Agent in connection with the manufacture, production, completion, handling, removal and sale of any ABL Priority Collateral by the ABL Agent as provided above and (y) shall be entitled to receive, from the ABL Agent, fair compensation and reimbursement for their reasonable costs and expenses incurred in connection with such cooperation, support and assistance to the ABL Agent.  The Term Loan Security Agent and/or any such purchaser (or its transferee or successor) shall not otherwise be required to manufacture, produce, complete, remove, insure, protect, store, safeguard, sell or deliver any inventory subject to any First Priority Lien held by the ABL Agent or to provide any support, assistance or cooperation to the ABL Agent in respect thereof.

Section 7.  Application of Proceeds.

7.1Application of Proceeds in Distributions by the Term Loan Security Agent.

(a)The Term Loan Security Agent will apply the proceeds of any collection, sale, foreclosure or other realization upon any Term Loan Priority Collateral, and, after the Discharge of ABL Obligations, the proceeds of any collection, sale, foreclosure or other realization of any ABL Priority Collateral by Term Loan Security Agent, and, in each case the proceeds of any title insurance policy covering any Term Loan Priority Collateral (or, after the Discharge of ABL Obligations, any ABL Priority Collateral) required and actually obtained under any Term Loan Document, in the following order of application:

First, to the payment of all amounts payable under the Term Loan Documents on account of the Term Loan Security Agent’s fees and any reasonable legal fees, costs and expenses or other liabilities of any kind incurred by the Term Loan Security Agent or any co-trustee or agent of the Term Loan Security Agent in connection with any Term Loan Document;

Second, to the Term Loan Administrative Agent for application to the payment of all outstanding Term Loan Priority Obligations that are then due and payable in such order as may be provided in the Term Loan Documents in an amount sufficient to pay in full in cash all outstanding Term Loan Priority Obligations that are then due and payable (including all interest accrued thereon after the commencement of any Insolvency or Liquidation Proceeding at the rate, and including any applicable post-default rate, specified in the Term Loan Documents, even if such interest is not enforceable, allowable or allowed as a claim in such proceeding);

Third, to the payment of all amounts payable under the ABL Documents on account of the ABL

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Agent’s fees and any reasonable legal fees, costs and expenses or other liabilities of any kind incurred by the ABL Agent or any co-trustee or agent of the ABL Agent in connection with any ABL Document;

Fourth, to the ABL Agent for application to the payment of all outstanding ABL Priority Obligations that are then due and payable in such order as may be provided in the ABL Documents in an amount sufficient to pay in full in cash all outstanding ABL Priority Obligations that are then due and payable (including all interest accrued thereon after the commencement of any Insolvency or Liquidation Proceeding at the rate, including any applicable post-default rate, specified in the ABL Documents, even if such interest is not enforceable, allowable or allowed as a claim in such proceeding, and including the discharge or cash collateralization (at 105% of the aggregate undrawn amount) of all outstanding letters of credit and ABL Bank Product Obligations, if any, constituting ABL Priority Obligations);

Fifth, to the Term Loan Administrative Agent for application to the payment of all outstanding Excess Term Loan Obligations that are then due and payable in such order as may be provided in the Term Loan Documents in an amount sufficient to pay in full in cash all outstanding Excess Term Loan Obligations that are then due and payable;

Sixth, to the ABL Agent for application to the payment of all outstanding Excess ABL Obligations that are then due and payable in such order as may be provided in the Term Loan Documents in an amount sufficient to pay in full in cash all outstanding Excess ABL Obligations that are then due and payable; and

Seventh, any surplus remaining after the payment in full in cash of the amounts described in the preceding clauses will be paid to the Company or the applicable Grantor, as the case may be, its successors or assigns, or as a court of competent jurisdiction may direct.

(b)In connection with the application of proceeds pursuant to Section 7.1(a), except as otherwise directed by the “Required Lenders” under, and as defined in, the Term Loan Documents, the Term Loan Security Agent may sell any non-Cash Proceeds for cash prior to the application of the proceeds thereof.

(c)If the Term Loan Security Agent or any Term Loan Secured Party collects or receives any proceeds of such foreclosure, collection or other enforcement that should have been applied to the payment of the ABL Obligations in accordance with Section 7.2(a) below, whether after the commencement of an Insolvency or Liquidation Proceeding or otherwise, such Term Loan Secured Party will forthwith deliver the same to the ABL Agent, for the account of the holders of the ABL Obligations, to be applied in accordance with Section 7.2(a).  Until so delivered, such proceeds will be held by that Term Loan Secured Party for the benefit of the holders of the ABL Obligations.

7.2Application of Proceeds in Distributions by the ABL Agent.

(a)The ABL Agent will apply the proceeds of any collection, sale, foreclosure or other realization upon any ABL Priority Collateral and, after the Discharge of Term Loan Obligations, the proceeds of any collection, sale, foreclosure or other realization of any Term Loan Priority Collateral by the ABL Agent, and the proceeds of any title insurance policy covering any ABL Priority Collateral (and, after the Discharge of Term Loan Obligations, any title insurance policy covering any Term Loan Priority Collateral) required and actually obtained under any ABL Document permitted to be received by it, in the following order of application:

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First, to the payment of all amounts payable under the ABL Documents on account of the ABL Agent’s fees and any reasonable legal fees, costs and expenses or other liabilities of any kind incurred by the ABL Agent or any co-trustee or agent of the ABL Agent in connection with any ABL Document;

Second, to the ABL Agent for application to the payment of all outstanding ABL Priority Obligations that are then due and payable in such order as may be provided in the ABL Documents in an amount sufficient to pay in full in cash all outstanding ABL Priority Obligations that are then due and payable (including all interest accrued thereon after the commencement of any Insolvency or Liquidation Proceeding at the rate, and including any applicable post-default rate, specified in the ABL Documents, even if such interest is not enforceable, allowable or allowed as a claim in such proceeding and including the discharge or cash collateralization of all outstanding letters of credit (at 105% of the aggregate undrawn amount) and ABL Bank Product Obligations (in such amount as the ABL Agent reasonably determines is necessary to secure the ABL Bank Product Obligations), if any, constituting ABL Priority Obligations);

Third, to the payment of all amounts payable under the Term Loan Documents on account of the Term Loan Security Agent’s fees and any reasonable legal fees, costs and expenses or other liabilities of any kind incurred by the Term Loan Security Agent or any co-trustee or agent of the Term Loan Security Agent in connection with any Term Loan Document;

Fourth, to the Term Loan Administrative Agent for application to the payment of all outstanding Term Loan Priority Obligations that are then due and payable in such order as may be provided in the Term Loan Documents in an amount sufficient to pay in full in cash all outstanding Term Loan Priority Obligations that are then due and payable (including all interest accrued thereon after the commencement of any Insolvency or Liquidation Proceeding at the rate, and including any applicable post-default rate, specified in the Term Loan Documents, even if such interest is not enforceable, allowable or allowed as a claim in such proceeding and including the discharge or cash collateralization);

Fifth, to the ABL Agent for application to the payment of all outstanding Excess ABL Obligations that are then due and payable in such order as may be provided in the ABL Documents in an amount sufficient to pay in full in cash all outstanding Excess ABL Obligations that are then due and payable; and

Sixth, to the Term Loan Administrative Agent for application to the payment of all outstanding Excess Term Loan Obligations that are then due and payable in such order as may be provided in the Term Loan Documents in an amount sufficient to pay in full in cash all outstanding Excess Term Loan Obligations that are then due and payable; and

Seventh, any surplus remaining after the payment in full in cash of the amounts described in the preceding clauses will be paid to the Company or the other applicable Grantor, as the case may be, its successors or assigns, or as a court of competent jurisdiction may direct.

(b)In connection with the application of proceeds pursuant to Section 7.2(a), except as otherwise directed by the “Required Lenders” under, and as defined in, the ABL Documents, the ABL Agent may sell any non-Cash Proceeds for cash prior to the application of the proceeds thereof.

(c)If the ABL Agent or any ABL Secured Party collects or receives any proceeds of such foreclosure, collection or other enforcement that should have been applied to the payment of the

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Term Loan Obligations in accordance with Section 7.1(a) above, whether after the commencement of an Insolvency or Liquidation Proceeding or otherwise, such ABL Secured Party will forthwith deliver the same to the Term Loan Security Agent for the account of the holders of the Term Loan Obligations  to be applied in accordance with Section 7.1(a).  Until so delivered, such proceeds will be held by that ABL Secured Party for the benefit of the holders of the Term Loan Obligations.

7.3Mixed Collateral Proceeds.  Notwithstanding anything to the contrary contained above or in the definition of the ABL Priority Collateral or Term Loan Priority Collateral, in the event that proceeds of Collateral are received from (or are otherwise attributable to the value of) a sale or other disposition of Collateral that involves a combination of ABL Priority Collateral and Term Loan Priority Collateral, the portion of such proceeds that shall be allocated as proceeds of ABL Priority Collateral for purposes of this Agreement shall be an amount equal to the net book value of such ABL Priority Collateral (except in the case of Accounts which amount shall be equal to the face amount of such Accounts).  In addition, notwithstanding anything to the contrary contained above or in the definition of the ABL Priority Collateral or Term Loan Priority Collateral, to the extent proceeds of Collateral are proceeds received from (or are otherwise attributable to the value of) the sale or disposition of all or substantially all of the Capital Stock of any of the Subsidiaries of Parent which is a Grantor or all or substantially all of the assets of any such Subsidiary, such proceeds shall constitute (1) first, in an amount equal to the face amount of the Accounts (as described in clause (i) of the definition of ABL Priority Collateral, and excluding any Accounts to the extent excluded pursuant to said clause (i)) and the net book value of the Inventory owned by such Subsidiary at the time of such sale, ABL Priority Collateral and (2) second, to the extent in excess of the amounts described in the preceding clause (1), Term Loan Priority Collateral.

7.4Tracing of Proceeds in Deposit Accounts.  The Term Loan Security Agent, for itself and/or on behalf of the Term Loan Secured Parties, hereby agree that all funds deposited under a Deposit Account (other than an Asset Sale Proceeds Account) and then applied to the ABL Obligations will be treated as ABL Priority Collateral, unless prior to the application of such funds, the ABL Agent has actual knowledge, or any Term Loan Agent or any Grantor has delivered written notice to the ABL Agent indicating, that any such funds are the identifiable Proceeds of Term Loan Priority Collateral that have been deposited under such Deposit Agreements.

Section 8.  Miscellaneous.

8.1Conflicts.  In the event of any conflict between the provisions of this Agreement and the provisions of the Term Loan Documents or the ABL Documents, the provisions of this Agreement shall govern and control, except with respect to the scope of the assets included in the respective “granting clauses” in the various Term Loan Security Documents and ABL Security Documents.  Each Secured Party acknowledges and agrees that the terms and provisions of this Agreement do not violate any term or provision of its respective Term Loan Documents or ABL Documents.

8.2Effectiveness; Continuing Nature of this Agreement; Amendment and Restatement; Severability.  (a) This Agreement shall become effective when executed and delivered by the parties hereto.  Each Security Agent, on behalf of itself and the applicable Secured Parties, hereby waives any right it may have under applicable law to revoke this Agreement or any of the provisions of this Agreement.  The terms of this Agreement shall survive, and shall continue in full force and effect, in any Insolvency or Liquidation Proceeding.  Without limiting the generality of the foregoing, this Agreement is intended to constitute and shall be deemed to constitute a “subordination agreement” within the meaning of Section 510(a) of the Bankruptcy Code and is intended to be and shall be interpreted to be enforceable to the maximum extent permitted pursuant to applicable non-bankruptcy law.  Any provision

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of this Agreement which is prohibited or unenforceable in any jurisdiction shall not invalidate the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.  All references to the Company or any other Grantor shall include the Company or such Grantor as debtor and debtor in possession and any receiver or trustee for the Company or any other Grantor (as the case may be) in any Insolvency or Liquidation Proceeding.

(b)This Agreement amends and restates, replaces and supersedes the Prior Intercreditor Agreement in its entirety.  This Agreement is the “Intercreditor Agreement”, as such term is used in the ABL Documents and in the Term Loan Documents.

(c)This Agreement shall terminate and be of no further force and effect:

(i)with respect to the ABL Agent, the ABL Secured Parties and the ABL Obligations, upon the Discharge of ABL Obligations, subject to the rights of the ABL Secured Parties under Section 8.17; and

(ii)with respect to the Term Loan Security Agent, the Term Loan Secured Parties and the Term Loan Obligations, upon the Discharge of Term Loan Obligations, subject to the rights of the Term Loan Secured Parties under Section 8.17.

8.3Amendments; Waivers.  (a)  No amendment, modification or waiver of any of the provisions of this Agreement by any Security Agent shall be deemed to be made unless the same shall be in writing signed on behalf of each party hereto or its authorized agent; provided that additional Grantors may acknowledge this Agreement in accordance with the provisions of Section 8.16; provided, further that each of the ABL Agent and the Term Loan Agent and the  Security Agents shall be obligated to enter into amendments and modifications to this Agreement on their own behalf and on behalf of their respective Secured Parties to the extent requested by the Company in accordance with Section 8.3(b) below.  Each waiver of the terms of this Agreement, if any, shall be a waiver only with respect to the specific instance involved and shall in no way impair the rights of the parties making such waiver or the obligations of the other parties to such party in any other respect or at any other time.  Notwithstanding the foregoing, the Company or any other Grantor shall not have any right to consent to or approve any amendment, modification or waiver of any provision of this Agreement, except to the extent its rights are directly affected (which includes any amendment to the Grantors’ ability to cause additional obligations to constitute Term Loan Obligations or ABL Obligations as the Company and/or any other Grantor may designate).

(b)It is understood and agreed that the ABL Agent, the Term Loan Security Agent and the Term Loan Agent, without the consent of any other ABL Secured Party or Term Loan Secured Party, shall, upon request of the Company, enter into a supplemental agreement (which may take the form of an amendment or amendment and restatement of this Agreement) within 10 business days of such request (or such shorter or longer period as reasonably agreed to by the Security Agents and the Company) (i) to have additional indebtedness or other obligations of any of the Grantors incorporated herein as ABL Obligations or Term Loan Obligations, as the case may be, under this Agreement, (ii) to give effect to any amendments contemplated by Sections 3.4(h) or 4.4(h) in connection with a Permitted Refinancing of Term Loan Obligations and ABL Obligations, respectively or (iii) to effectuate the priority of the Liens permitted pursuant to clauses (a), (q) and (r) of the definition of “Permitted Liens” in the ABL Credit Agreement (or any Permitted Refinancing thereof) or Sections 9.01(d), (t), (u) or (v) of the Term Loan Credit Agreement (or any Permitted Refinancing thereof) (including allowing the Additional Debt secured by such Liens to share in the benefits of this Agreement on a basis consistent with the existing Term Loan Obligations (to the extent such Additional Debt is intended to consist of

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Term Loan Obligations) or the existing ABL Obligations (to the extent such Additional Debt is intended to consist of ABL Obligations), in relation  to (x) the Liens on the Term Loan Priority Collateral securing the ABL Obligations and  the Term Loan Obligations and (y) the Liens on the ABL Priority Collateral securing ABL Obligations and the Term Loan Obligations (the indebtedness or other obligations described in clauses (i) and (iii) above, “Additional Debt”), which supplemental agreement shall specify whether such Additional Debt constitutes ABL Obligations or Term Loan Obligations; provided that such Additional Debt is permitted to be incurred under the each of the ABL Credit Agreement and the Term Loan Credit Agreement then extant in accordance with the terms thereof, and each of the ABL Agent and the Term Loan Security Agent (and the Term Loan Agent)  shall execute and deliver such supplemental agreement at the other’s request (or upon the request of the Company) and such supplemental agreement may contain additional intercreditor terms applicable solely to the holders of such Additional Debt and  the holders of the relevant obligations hereunder, which are intended to share priority in the Collateral on a pari passu basis with such Additional Debt.

8.4Information Concerning Financial Condition of the Company and its Subsidiaries.  The Term Loan Security Agent and the Term Loan Secured Parties, and the ABL Agent and the ABL Secured Parties, shall each separately be responsible for keeping themselves informed of (a) the financial condition of the Company and its Subsidiaries and all endorsers and/or guarantors of the Term Loan Obligations or the ABL Obligations and (b) all other circumstances bearing upon the risk of nonpayment of the ABL Obligations or the Term Loan Obligations.  No Security Agent or its respective Secured Parties shall have any duty to advise any other Security Agent or that other Security Agent’s respective Secured Parties of information known to it or them regarding such condition or any such circumstances or otherwise.  In the event that any of the Term Loan Security Agent or any of the Term Loan Secured Parties, or the ABL Agent or any of the ABL Secured Parties, respectively, in its or their sole discretion, undertakes at any time or from time to time to provide any such information to any other party hereto, it or they shall be under no obligation (w) to make, and such informing party shall not make, any express or implied representation or warranty, including with respect to the accuracy, completeness, truthfulness or validity of any such information so provided, (x) to provide any additional information or to provide any such information on any subsequent occasion, (y) to undertake any investigation or (z) to disclose any information which, pursuant to accepted or reasonable commercial finance practices, such party wishes to maintain confidential or is otherwise required to maintain confidential.

8.5Submission to Jurisdiction; Waivers.  (a)  ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY PARTY HERETO ARISING OUT OF OR RELATING HERETO SHALL BE BROUGHT EXCLUSIVELY IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE, COUNTY AND CITY OF NEW YORK, BOROUGH OF MANHATTAN.  BY EXECUTING AND DELIVERING THIS AGREEMENT, EACH PARTY HERETO, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (i) ACCEPTS GENERALLY AND UNCONDITIONALLY THE EXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS; (ii) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; (iii) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE APPLICABLE PARTY AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 8.6; AND (iv) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (iii) ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE APPLICABLE PARTY IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT.

(b)EACH OF THE PARTIES HERETO HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER.  THE SCOPE OF THIS WAIVER IS INTENDED TO BE

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ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER HEREOF, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.  EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS.  EACH PARTY HERETO FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.  THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 8.5(b) AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO.  IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.

8.6Notices.  All notices to the ABL Secured Parties and the Term Loan Secured Parties permitted or required under this Agreement shall also be sent to the ABL Agent and the Term Loan Security Agent, respectively.  Unless otherwise specifically provided herein, any notice hereunder shall be in writing and may be personally served, telexed or sent by telefacsimile or United States mail or courier service and shall be deemed to have been given when delivered in person or by courier service and signed for against receipt thereof, upon receipt of telefacsimile, or three Business Days after depositing it in the United States mail with postage prepaid and properly addressed.  For the purposes hereof, the addresses of the parties hereto shall be as set forth below each party’s name on the signature pages hereto, or, as to each party, at such other address as may be designated by such party in a written notice to all of the other parties.

8.7Further Assurances.  The Term Loan Security Agent, on behalf of itself and the Term Loan Secured Parties, and the ABL Agent, on behalf of itself and the ABL Secured Parties, and each Grantor, agrees that each of them shall take such further action and shall execute (without recourse or warranty) and deliver such additional documents and instruments (in recordable form, if requested) as the Term Loan Security Agent or the ABL Agent (or in the circumstances set forth in Section 8.3, the Company) may reasonably request to effectuate the terms of and the lien priorities contemplated by this Agreement (including with respect to Additional Debt).

8.8APPLICABLE LAW.  THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

8.9Binding on Successors and Assigns.  This Agreement shall be binding upon the parties hereto, the Term Loan Secured Parties, the ABL Secured Parties, and their respective successors and assigns.

8.10Specific Performance.  Each of the Term Loan Security Agent and the ABL Agent may demand specific performance of this Agreement.  The Term Loan Security Agent, on behalf of itself and the Term Loan Secured Parties, and the ABL Agent, on behalf of itself and the ABL Secured Parties, hereby irrevocably waives any defense based on the adequacy of a remedy at law and any other

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defense which might be asserted to bar the remedy of specific performance in any action which may be brought by the Term Loan Security Agent or the ABL Agent, as the case may be.

8.11Headings.  Section headings in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose or be given any substantive effect.

8.12Counterparts.  This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall be deemed an original, but all of which when taken together shall constitute a single contract.  Delivery of an executed counterpart of a signature page of this Agreement or any document or instrument delivered in connection herewith by telecopy or other electronic transmission shall be effective as delivery of a manually executed counterpart of this Agreement or such other document or instrument, as the case may be.

8.13Authorization; No Conflict.  Each of the parties hereto represents and warrants to all other parties hereto that the execution, delivery and performance by or on behalf of such party to this Agreement has been duly authorized by all necessary action, corporate or otherwise, does not violate any provision of law, governmental regulation, or any agreement or instrument by which such party is bound, and requires no governmental or other consent that has not been obtained and is not in full force and effect.

8.14No Third Party Beneficiaries.  This Agreement and the rights and benefits hereof shall inure to the benefit of the Term Loan Secured Parties, the ABL Secured Parties and each of their respective successors and assigns.  No other Person shall have or be entitled to assert rights or benefits hereunder, other than the specific rights of the Grantors under Section 8.3.

8.15Provisions Solely to Define Relative Rights.  (a)  The provisions of this Agreement are, and are intended solely for the purpose of, defining the relative rights and remedies of the Term Loan Secured Parties and the ABL Secured Parties, respectively.  None of the Company, any other Grantor or any other creditor thereof shall have any rights hereunder (except as provided in Section 8.3).  Nothing in this Agreement is intended to or shall impair the obligations of the Company or any other Grantor, which are absolute and unconditional, to pay the Term Loan Obligations and the ABL Obligations as and when the same shall become due and payable in accordance with their terms.

(b)Nothing in this Agreement shall relieve the Company or any other Grantor from the performance of any term, covenant, condition or agreement on the Company’s or such Grantor’s part to be performed or observed under or in respect of any of the Collateral pledged by it or from any liability to any Person under or in respect of any of such Collateral, or impose any obligation on any Security Agent to perform or observe any such term, covenant, condition or agreement on the Company’s or such other Grantor’s part to be so performed or observed, or impose any liability on any Security Agent for any act or omission on the part of the Company or such other Grantor relative thereto or for any breach of any representation or warranty on the part of the Company or such other Grantor contained in this Agreement or any ABL Document or any Term Loan Document, or in respect of the Collateral pledged by it.  The obligations of the Company and each other Grantor contained in this paragraph shall survive the termination of this Agreement and the discharge of the Company’s or such other Grantor’s other obligations hereunder.

(c)Each of the Security Agents acknowledges and agrees that it has not made any representation or warranty with respect to the execution, validity, legality, completeness, collectability or enforceability of any other ABL Document or any Term Loan Document.  Except as otherwise provided in this Agreement, each of the Security Agents and the Administrative Agents will be entitled to manage

65

and supervise their respective extensions of credit to the Company or any of its Subsidiaries in accordance with law and their usual practices, modified from time to time as they deem appropriate.

8.16Additional Grantors.  The Company will cause each Person that becomes a Grantor or is a Wholly-Owned Subsidiary which is a Domestic Subsidiary (other than an Excluded Subsidiary) required by any Term Loan Document or any ABL Document to acknowledge this Agreement by causing such Person to execute and deliver to the parties hereto an Intercreditor Agreement Acknowledgement in substantially the form attached hereto as Exhibit B, whereupon such Person will be deemed to have acknowledged and consented to the terms hereof to the same extent as if it had executed and delivered an Intercreditor Agreement Acknowledgement as of the date hereof.  The Company shall promptly provide each Security Agent with a copy of an Intercreditor Agreement Acknowledgement executed and delivered pursuant to this Section 8.16.

8.17Avoidance Issues.  If any ABL Secured Party or any Term Loan Secured Party is required in any Insolvency or Liquidation Proceeding or otherwise to turn over or otherwise pay to the estate of the Company or any other Grantor any amount (a “Recovery”), then such ABL Secured Party or Term Loan Secured Party, as the case may be, shall be entitled to a reinstatement of ABL Obligations or Term Loan Obligations, as the case may be, with respect to all such recovered amounts.  If this Agreement shall have been terminated prior to such Recovery, this Agreement shall be reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise affect the obligations of the parties hereto from such date of reinstatement.  To the extent the ABL Debt Cap was decreased in connection with such payment of the ABL Obligations, the ABL Debt Cap shall be increased to such extent, and to the extent the Term Loan Debt Cap was decreased in connection with such payment of the Term Loan Obligations, the Term Loan Debt Cap shall be increased to such extent.

8.18Subrogation.  (a)  Subject to the Discharge of Term Loan Obligations, with respect to the value of any payments or distributions in cash, property or other assets that the ABL Secured Parties or ABL Agent pay over to the Term Loan Security Agent or any of the other Term Loan Secured Parties under the terms of this Agreement with respect to any Term Loan Priority Collateral, the ABL Secured Parties and the ABL Agent shall be subrogated to the rights of the Term Loan Security Agent and such other Term Loan Secured Parties; provided that, the ABL Agent, on behalf of itself and the ABL Secured Parties, hereby agrees not to assert or enforce all such rights of subrogation it may acquire as a result of any payment hereunder until the Discharge of Term Loan Obligations has occurred.  Each of the Company and each other Grantor acknowledges and agrees that the value of any payments or distributions in cash, property or other assets received by the ABL Agent or any other ABL Secured Parties and paid over to the Term Loan Security Agent or the other Term Loan Secured Parties pursuant to, and applied in accordance with, this Agreement, shall not relieve or reduce any of the Term Loan Obligations owed by the Company or any other Grantor under the Term Loan Documents.

(b)Subject to the Discharge of ABL Obligations, with respect to the value of any payments or distributions in cash, property or other assets that (i) the Term Loan Secured Parties or Term Loan Security Agent pay over to the ABL Agent or any of the other ABL Secured Parties under the terms of this Agreement with respect to the ABL Priority Collateral, the Term Loan Secured Parties and the Term Loan Security Agent shall be subrogated to the rights of the ABL Agent and the other ABL Secured Parties; provided that each of the Term Loan Security Agent, on behalf of itself and the Term Loan Secured Parties  hereby agrees not to assert or enforce all such rights of subrogation it may acquire as a result of any payment hereunder until the Discharge of ABL Obligations has occurred.  Each of the Company and each other Grantor acknowledges and agrees that the value of any payments or distributions in cash, property or other assets received by the Term Loan Security Agent or any other Term Loan Secured Parties and paid over to the ABL Agent or the other ABL Secured Parties pursuant to, and applied in accordance with, this Agreement, shall not relieve or reduce any of the ABL

66

Obligations owed by the Company or any other Grantor under the ABL Documents, as the case may be (but rather shall relieve or reduce the Term Loan Obligations).

8.19Effectiveness in Insolvency or Liquidation Proceedings.  This Agreement shall be applicable both before and after the commencement of any Insolvency or Liquidation Proceeding and all converted or succeeding cases in respect thereof.  The relative rights of the Secured Parties in or to any distributions from or in respect of any Collateral or proceeds of any Collateral, shall continue after the commencement of any Insolvency or Liquidation Proceeding.  Accordingly, the provisions of this Agreement are intended to be and shall be enforceable as a subordination agreement within the meaning of Section 510 of the Bankruptcy Code.

[SIGNATURE PAGES FOLLOW]

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IN WITNESS WHEREOF, the parties hereto have caused this Amended and Restated Intercreditor Agreement to be executed by their respective officers or representatives as of the day and year first above written.

Address:	WELLS FARGO CAPITAL FINANCE, LLC,
	as ABL Agent
Wells Fargo Capital Finance, LLC
2450 Colorado Avenue
Suite 3000 West
Santa Monica, CA 90404	By:
Attn: Loan Portfolio Manager		Name:
Fax No.: (866) 350-1924		Title:

[SIGNATURE PAGE]

Address:	MORGAN STANLEY SENIOR FUNDING, INC.,
	as Term Loan Administrative Agent and as Term Loan Security Agent
Morgan Stanley Senior Funding, Inc.
1585 Broadway
New York, New York 10036
Attention: Agency Team	By:
Telecopier No.: (212) 507-6680		Name:
Telephone: (917) 260-0588		Title:

[SIGNATURE PAGE]

INTERCREDITOR AGREEMENT ACKNOWLEDGEMENT

Each Grantor hereby acknowledges that it has received a copy of this Agreement, as in effect on the date first written above, and each such Grantor hereby (i) consents thereto, (ii) agrees to recognize all rights granted thereby to the ABL Agent, the ABL Secured Parties, the Term Loan Agents and the Term Loan Secured Parties, (iii) waives the provisions of Section 9-615(a) of the UCC in connection with the application of proceeds of Collateral in accordance with the provisions of this Agreement, (iv) acknowledges and agrees that neither any Term Loan Agent nor any holder of Term Loan Obligations shall ever be accountable or liable for any actions taken or omitted by the ABL Agent or any ABL Secured Party or its or any of their officers, employees, agents, successors or assigns in connection therewith or incidental thereto or in consequence thereof, including any improper use or disclosure of any proprietary information or other intellectual property by the ABL Agent or any ABL Secured Party or its or any of their officers, employees, agents, successors or assigns or any other damage to or misuse or loss of any property of the Grantors as a result of any action taken or omitted by the ABL Agent or its officers, employees, agents, successors or assigns, (v) acknowledges and agrees that neither the ABL Agent nor any holder of ABL Obligations shall ever be accountable or liable for any actions taken or omitted by any Term Loan Agent or any Term Loan Secured Party or its or any of their officers, employees, agents, successors or assigns in connection therewith or incidental thereto or in consequence thereof, including any improper use or disclosure of any proprietary information or other intellectual property by any Term Loan Agent or any Term Loan Secured Party or its or any of their officers, employees, agents, successors or assigns or any other damage to or misuse or loss of any property of the Grantors as a result of any action taken or omitted by any Term Loan Agent or its officers, employees, agents, successors or assigns, and (vi) agrees that it will not do any act or perform any obligation which is not in accordance with the agreements set forth in this Agreement as in effect on the date hereof.  Each Grantor further acknowledges and agrees that, other than as provided in Section 8.3 of this Agreement (pursuant to Section 8.15(a) of this Agreement), it is not an intended beneficiary or third party beneficiary under this Agreement, as amended, restated, supplemented, or otherwise modified hereafter.

[SIGNATURE PAGES FOLLOW]

[INTERCREDITOR AGREEMENT ACKNOWLEDGEMENT]

IN WITNESS WHEREOF, the parties hereto have caused this Intercreditor Agreement Acknowledgement to be executed by their respective officers or representatives as of June    , 2016.

ADVANCEPIERRE FOODS, INC.,
as a Grantor
By:
	Name:
	Title:
ADVANCEPIERRE FOODS HOLDINGS, INC.,
as a Grantor
By:
	Name:
	Title:
PIERRE HOLDCO, INC.,
as Grantor
By:
	Name:
	Title:
CHEFS PANTRY, LLC,
as a Grantor
By:
	Name:
	Title:

[SIGNATURE PAGE — INTERCREDITOR AGREEMENT ACKNOWLEDGEMENT]

CLOVERVALE FARMS, LLC,
as a Grantor
By:
	Name:
	Title:
ADVANCE FOOD COMPANY, LLC,
as a Subsidiary Guarantor
By:
	Name:
	Title:
APF LEGACY SUBS, LLC,
as a Grantor
By:
	Name:
	Title:
BARBER FOODS, LLC,
as a Grantor
By:
	Name:
	Title:

[SIGNATURE PAGE — INTERCREDITOR AGREEMENT ACKNOWLEDGEMENT]

EXHIBIT A
to Intercreditor Agreement

FORM OF
INTERCREDITOR AGREEMENT JOINDER

The undersigned,                      , a                , hereby agrees to become party as [an ABL Agent][a Term Loan Security Agent] under the Amended and Restated Intercreditor Agreement, dated as of June 2, 2016 (as amended, restated, amended and restated, supplemented, joined or otherwise modified from time to time, the “Intercreditor Agreement”), made by and among Wells Fargo Capital Finance, LLC (in its individual capacity, and any successor thereto by merger, consolidation or otherwise, “WFCF”), as ABL Agent, and Morgan Stanley Senior Funding, Inc., as Term Loan Administrative Agent and as Term Loan Security Agent, and acknowledged by AdvancePierre Foods Holdings, Inc., a Delaware corporation (“Parent”), Pierre Holdco, Inc., a Delaware corporation (“Holdings”), AdvancePierre Foods, Inc., a Delaware corporation (the “Company”), and certain other Grantors (as defined therein), as such Intercreditor Agreement may be in effect from time to time for all purposes thereof on the terms set forth therein, and to be bound by the terms of the Intercreditor Agreement as fully as if the undersigned had executed and delivered the Intercreditor Agreement as of the date thereof.

The provisions of Section 6 of the Intercreditor Agreement will apply with like effect to this Intercreditor Agreement Joinder.

IN WITNESS WHEREOF, the parties hereto have caused this Intercreditor Agreement Joinder to be executed by their respective officers or representatives as of                    , 20    .

[                                                                              ]
By:
	Name:
	Title:

EXHIBIT B
to Intercreditor Agreement

FORM OF
INTERCREDITOR AGREEMENT ACKNOWLEDGEMENT

The undersigned,                      , a                 (“Grantor”), hereby acknowledges that it has received a copy of the Amended and Restated Intercreditor Agreement, dated as of June 2, 2016 (as amended, restated, amended and restated, supplemented, joined or otherwise modified from time to time, the “Intercreditor Agreement”; capitalized terms used herein but not otherwise defined herein shall have the meanings set forth in the Intercreditor Agreement), made by and among Wells Fargo Capital Finance, LLC (in its individual capacity, and any successor thereto by merger, consolidation or otherwise, “WFCF”), as ABL Agent, and Morgan Stanley Senior Funding, Inc., as Term Loan Administrative Agent and as Term Loan Security Agent, and acknowledged by AdvancePierre Foods Holdings, Inc., a Delaware corporation (“Parent”), Pierre Holdco, Inc. a Delaware corporation (“Holdings”), AdvancePierre Foods, Inc., a Delaware corporation (the “Company”), and certain other Grantors.  Grantor hereby (i) consents to the Intercreditor Agreement, (ii) agrees to recognize all rights granted thereby to the ABL Agent, the ABL Secured Parties, the Term Loan Agents and the Term Loan Secured Parties, (iii) waives the provisions of Section 9-615(a) of the UCC in connection with the application of proceeds of Collateral in accordance with the provisions of the Intercreditor Agreement, (iv) acknowledges and agrees that neither any Term Loan Agent nor any holder of Term Loan Obligations shall ever be accountable or liable for any actions taken or omitted by the ABL Agent or any ABL Secured Party or its or any of their officers, employees, agents, successors or assigns in connection therewith or incidental thereto or in consequence thereof, including any improper use or disclosure of any proprietary information or other intellectual property by the ABL Agent or any ABL Secured Party or its or any of their officers, employees, agents, successors or assigns or any other damage to or misuse or loss of any property of the Grantors as a result of any action taken or omitted by the ABL Agent or its officers, employees, agents, successors or assigns, (v) acknowledges and agrees that neither the ABL Agent nor any holder of ABL Obligations shall ever be accountable or liable for any actions taken or omitted by any Term Loan Agent or any Term Loan Secured Party or its or any of their officers, employees, agents, successors or assigns in connection therewith or incidental thereto or in consequence thereof, including any improper use or disclosure of any proprietary information or other intellectual property by any Term Loan Agent or any Term Loan Secured Party or its or any of their officers, employees, agents, successors or assigns or any other damage to or misuse or loss of any property of the Grantors as a result of any action taken or omitted by any Term Loan Agent or its officers, employees, agents, successors or assigns, and (vi) agrees that it will not do any act or perform any obligation which is not in accordance with the agreements set forth in the Intercreditor Agreement as in effect on the date hereof.  Grantor further acknowledges and agrees that, other than as provided in Section 8.3 of the Intercreditor Agreement (pursuant to Section 8.15(a) of the Intercreditor Agreement), it is not an intended beneficiary or third party beneficiary under the Intercreditor Agreement, as amended, restated, supplemented, or otherwise modified hereafter.

IN WITNESS WHEREOF, the parties hereto have caused this Intercreditor Agreement Acknowledgement to be executed by their respective officers or representatives as of                    , 20    .

[                                                                              ]
By:
	Name:
	Title:

EXHIBIT K-2

FORM OF PARI PASSU INTERCREDITOR AGREEMENT

EXHIBIT K-2

[FORM OF] PARI PASSU INTERCREDITOR AGREEMENT

dated as of [  ],

between

MORGAN STANLEY SENIOR FUNDING, INC.,

as Security Agent for the Term Loan Secured Creditors
and
as Authorized Representative for the Term Loan Secured Creditors,

and

[          ]
as the Initial Additional Authorized Representative,

and

each additional Authorized Representative from time to time party hereto

This PARI PASSU INTERCREDITOR AGREEMENT (as amended, restated, amended and restated, supplemented and/or otherwise modified from time to time, this “Agreement”), dated as of [          ], is made by and among, MORGAN STANLEY SENIOR FUNDING, INC. (“MSSF”), as security agent for the Term Loan Secured Creditors (as defined below) (in such capacity and together with its successors in such capacity, the “Term Loan Security Agent”), as the Term Loan Administrative Agent (as defined below) and as the Authorized Representative for the Term Loan Secured Creditors (as each such term is defined below), [          ], as Authorized Representative for the Initial Additional First-Lien Secured Creditors (as defined below) (in such capacity and together with its successors in such capacity, the “Initial Additional Authorized Representative”), and each additional Authorized Representative from time to time party hereto for the other Additional First-Lien Secured Creditors of the Series (as each such term is defined below) with respect to which it is acting in such capacity, and is acknowledged by ADVANCEPIERRE FOODS HOLDINGS, INC., a Delaware corporation (“Parent”), PIERRE HOLDCO, INC., a Delaware corporation (“Holdings”), ADVANCEPIERRE FOODS, INC., a Delaware corporation (the “Company”), and the other Grantors (as defined below) from time to time party hereto.

RECITALS:

WHEREAS, Parent, Holdings and the Company have entered into that certain Term Loan Credit Agreement, dated as of June 2, 2016 (as amended, supplemented, restated, amended and restated, modified and/or Refinanced from time to time, the “Term Loan Credit Agreement”), among Parent, Holdings, the Company, the lenders from time to time party thereto (the “Term Loan Lenders”), MSSF, as administrative agent (in such capacity and together with its successors and assigns in such capacity, the “Term Loan Administrative Agent”), and the Term Loan Security Agent;

WHEREAS, pursuant to the various Term Loan Documents (as defined below), (i) certain of the Grantors have provided guarantees for the Term Loan Credit Agreement Obligations (as defined below), and (ii) the Grantors have provided security for the Term Loan Credit Agreement Obligations; and

WHEREAS, Parent, Holdings, the Company and the other Grantors may, from time to time, to the extent permitted by this Agreement and the Term Loan Documents, incur additional secured debt which Parent, Holdings, the Company and the Security Agent (as defined below) agree may, subject to the terms and conditions hereof, share a security interest in the Collateral on a pari passu basis with the Term Loan Credit Agreement Obligations in accordance with the Secured Credit Documents (as defined below) in existence at the time of such incurrence;

NOW, THEREFORE, in consideration of the mutual agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Security Agent, the Term Loan Administrative Agent (for itself and on behalf of the Term Loan Secured Creditors), the Initial Additional Authorized Representative (for itself and on behalf of the Initial Additional First-Lien Secured Creditors), and each additional Authorized Representative (each for itself and on behalf of the Additional First-Lien Secured Creditors of the applicable Series) agree as follows:

ARTICLE I

Definitions

SECTION 1.01  Certain Defined Terms.  Capitalized terms used but not otherwise defined herein shall have the meanings set forth in the Term Loan Credit Agreement (as defined below) or, if not defined herein or therein and defined in the UCC, the meanings specified therein.  As used in this Agreement, the following terms have the meanings specified below:

“Additional First-Lien Documents” means, with respect to any Series of Additional First-Lien Obligations, the notes, indentures, credit agreements, security documents and other operative agreements evidencing or governing such indebtedness, including the Initial Additional First-Lien Documents and each other agreement entered into for the purpose of securing any Series of Additional First-Lien Obligations; provided that in each case, the indebtedness thereunder (other than the Initial Additional First-Lien Obligations) has been designated as Additional First-Lien Obligations pursuant to Section 5.13.

“Additional First-Lien Obligations” means all amounts owing to any Additional First-Lien Secured Creditor (including the Initial Additional First-Lien Secured Creditors) pursuant to the terms of any Additional First-Lien Document (including the Initial Additional First-Lien Documents), including, without limitation, all amounts in respect of any principal, premium, interest (including any interest accruing subsequent to the commencement of a Bankruptcy Case at the rate provided for in the respective Additional First-Lien Document, whether or not such interest is an allowed claim under any such proceeding or under applicable state, federal or foreign law), penalties, fees, expenses, indemnifications, reimbursements, damages and other liabilities, and guarantees of the foregoing amounts.

“Additional First-Lien Secured Creditor” means the holders of any Additional First-Lien Obligations and any Authorized Representative with respect thereto, and shall include the Initial Additional First Lien Secured Creditors.

“Agreement” has the meaning assigned to such term in the introductory paragraph of this Agreement.

“Applicable Authorized Representative” means, with respect to any Shared Collateral, (i) until the earlier of (x) the Discharge of Term Loan Credit Agreement Obligations and (y) the Non-Controlling Authorized Representative Enforcement Date, the Term Loan Administrative Agent, and (ii) from and after the earlier of (x) the Discharge of Term Loan Credit Agreement Obligations and (y) the Non-Controlling Authorized Representative Enforcement Date, the Major Non-Controlling Authorized Representative; provided, in each case, that if there shall occur one or more Non-Controlling Authorized Representative Enforcement Dates, the Applicable Authorized Representative shall be the Authorized Representative that is the Major Non-Controlling Authorized Representative in respect of the most recent Non-Controlling Authorized Representative Enforcement Date.

2

“Applicable Security Agent” means, with respect to any Shared Collateral, the Security Agent with respect to the Series of First-Lien Obligations whose Authorized Representative is the Applicable Authorized Representative for such Shared Collateral.

“Authorized Representative” means, at any time, (i) in the case of any Term Loan Credit Agreement Obligations or the Term Loan Secured Creditors, the Term Loan Administrative Agent or the Security Agent (or any similar term) under and as defined in the Term Loan Security Agreement, (ii) in the case of the Initial Additional First-Lien Obligations or the Initial Additional First-Lien Secured Creditors, the Initial Additional Authorized Representative, and (iii) in the case of any other Series of Additional First-Lien Obligations or Additional First-Lien Secured Creditors that become subject to this Agreement after the date hereof, the Authorized Representative named for such Series in the applicable Joinder Agreement.

“Bankruptcy Case” has the meaning assigned to such term in Section 2.05(b).

“Bankruptcy Code” shall mean Title 11 of the United States Code entitled “Bankruptcy,” as now or hereafter in effect, or any successor statute.

“Bankruptcy Law” shall mean the Bankruptcy Code, and any similar federal or state or non-U.S. law or statute for the supervision, administration or relief of debtors, including, without limitation, bankruptcy or insolvency laws.

“Business Day” shall mean any day except Saturday, Sunday and any day which shall be in New York, New York, a legal holiday or a day on which banking institutions are authorized or required by law or other government action to close.

“Collateral” means all assets and properties subject to Liens created pursuant to any First Lien Security Document to secure one or more Series of First Lien Obligations.

“Company” shall have the meaning set forth in the introductory paragraph hereof.

“Controlling Secured Creditors” means, with respect to any Shared Collateral, the Series of First-Lien Secured Creditors whose Authorized Representative is the Applicable Authorized Representative for such Shared Collateral.

“MSSF” shall have the meaning set forth in the introductory paragraph hereof.

“DIP Financing” has the meaning assigned to such term in Section 2.05(b).

“DIP Financing Liens” has the meaning assigned to such term in Section 2.05(b).

“DIP Lenders” has the meaning assigned to such term in Section 2.05(b).

“Discharge” means, with respect to any Shared Collateral and any Series of First-Lien Obligations, the date on which such Series of First-Lien Obligations is no longer secured by such Shared Collateral.  The term “Discharged” shall have a corresponding meaning.

3

“Discharge of Term Loan Credit Agreement Obligations” means, with respect to any Shared Collateral, the Discharge of the Term Loan Credit Agreement Obligations; provided that the Discharge of Term Loan Credit Agreement Obligations shall not be deemed to have occurred in connection with a Refinancing of such Term Loan Credit Agreement Obligations with Additional First-Lien Obligations secured by such Shared Collateral under a First-Lien Security Document which has been designated in writing by the Term Loan Administrative Agent (under the Term Loan Credit Agreement so Refinanced) and the Company to each other Authorized Representative as the “Term Loan Credit Agreement” for purposes of this Agreement.

“Domestic Subsidiary” of any Person shall mean any Subsidiary of such Person incorporated or organized in the United States or any State thereof or the District of Columbia.

“Event of Default” means an “Event of Default” (or similarly defined term) as defined in any Secured Credit Document.

“Excluded Subsidiary” shall have the meaning provided in the Term Loan Credit Agreement (as in effect on the date hereof).

“First-Lien Documents” means, (i) with respect to the Term Loan Credit Agreement Obligations, the Term Loan Documents, (ii) with respect to the Initial Additional First-Lien Obligations, the Initial Additional First-Lien Documents and (iii) with respect to any Additional First-Lien Obligations, the Additional First-Lien Documents.

“First-Lien Obligations” means, collectively, (i) the Term Loan Credit Agreement Obligations and (ii) each Series of Additional First-Lien Obligations (including the Initial Additional First-Lien Obligations).

“First-Lien Secured Creditors” means (i) the Term Loan Credit Agreement Secured Creditors and (ii) the Additional First-Lien Secured Creditors with respect to each Series of Additional First-Lien Obligations and any Authorized Representative thereof.

“First-Lien Security Documents” means the Term Loan Security Agreement, the other “Security Documents” (as defined in the Term Loan Credit Agreement), the Initial Additional Security Agreement and each other agreement entered into in favor of the Security Agent for the purpose of securing any Series of Additional First-Lien Obligations.

“Grantors” shall mean Parent, Holdings, the Company and each of the Company’s Wholly-Owned Subsidiaries that is a Domestic Subsidiary (other than Excluded Subsidiaries) that have executed and delivered, or may, from time to time, hereafter execute and deliver, a First-Lien Security Document.

“Holdings” shall have the meaning set forth in the introductory paragraph hereof.

“Initial Additional Authorized Representative” has the meaning assigned to such term in the introductory paragraph of this Agreement.

4

“Initial Additional Security Agreement” means the [          ], dated as of [          ], among the Grantors party thereto and the Security Agent.

“Initial Additional First-Lien Documents” means the Initial Additional First-Lien Agreement, the notes issued thereunder, the Initial Additional Security Agreement, and any security documents and other operative agreements evidencing or governing the indebtedness thereunder or the liens securing such indebtedness, including any agreement entered into for the purpose of securing the Initial Additional First-Lien Obligations.

“Initial Additional First-Lien Agreement” mean that certain [          ], dated as of [          ], among the [          ] and [          ], as [          ], as amended, restated, amended and restated, supplemented, modified, replaced and/or Refinanced from time to time.

“Initial Additional First-Lien Obligations” means the Additional First-Lien Obligations pursuant to the Initial Additional First-Lien Documents.

“Initial Additional First-Lien Secured Creditors” means the “[Secured Creditors]” as defined in the Initial Additional Security Agreement.

“Insolvency or Liquidation Proceeding” shall mean any of the following:  (i) the filing by any Grantor of a voluntary petition in bankruptcy under any provision of any Bankruptcy Law (including, without limitation, the Bankruptcy Code) or a petition to take advantage of any receivership or insolvency laws, including, without limitation, any petition seeking the dissolution, winding up, total or partial liquidation, reorganization, composition, arrangement, adjustment or readjustment or other relief of such Grantor, such Grantor’s debts or such Grantor’s assets or the appointment of a trustee, receiver, liquidator, custodian or similar official for such Grantor or a material part of such Grantor’s property; (ii) the appointment of a receiver, liquidator, trustee, custodian or other similar official for such Grantor or all or a material part of such Grantor’s assets; (iii) the filing of any petition against such Grantor under any Bankruptcy Law (including, without limitation, the Bankruptcy Code) or other receivership or insolvency law, including, without limitation, any petition seeking the dissolution, winding up, total or partial liquidation, reorganization, composition, arrangement, adjustment or readjustment or other relief of such Grantor, such Grantor’s debts or such Grantor’s assets or the appointment of a trustee, receiver, liquidator, custodian or similar official for such Grantor or a material part of such Grantor’s property; or (iv) the general assignment by such Grantor for the benefit of creditors or any other marshalling of the assets and liabilities of such Grantor.

“Intercreditor Agreement Acknowledgement” shall mean the initial Pari Passu Intercreditor Agreement Acknowledgement delivered by each of the Grantors on the date first written above, and each other Pari Passu Intercreditor Agreement Acknowledgement made following the date first written above in substantially the form of Annex II hereto.

“Joinder Agreement” means a representative supplement to this Agreement in the form of Annex I hereof required to be delivered by an Authorized Representative and the Company to the Applicable Security Agent and the Applicable Authorized Representative pursuant to Section 5.13 hereof in order to establish an additional Series of Additional First-Lien Obligations and become Additional First-Lien Secured Creditors hereunder.

5

“Lenders” shall have the meaning set forth in the recitals hereto.

“Lien” shall mean any mortgage, deed of trust, pledge, hypothecation, assignment, deposit arrangement, security interest, encumbrance, charge, lien (statutory or other), charge, preference, priority or other security agreement of any kind or nature whatsoever (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement, any financing or similar statement or notice filed under the UCC or any similar recording or notice statute or other law, and any lease having substantially the same effect as the foregoing).

“Major Non-Controlling Authorized Representative” means, with respect to any Shared Collateral, the Authorized Representative of the Series of Additional First-Lien Obligations that constitutes the largest outstanding principal amount of any then outstanding Series of First-Lien Obligations with respect to such Shared Collateral; provided, however, that if there are two outstanding Series of Additional First-Lien Obligations which have an equal outstanding principal amount, the Series of Additional First-Lien Obligations with the earlier maturity date shall be considered to have the larger outstanding principal amount for purposes of this definition.

“Non-Controlling Authorized Representative” means, at any time with respect to any Shared Collateral, any Authorized Representative that is not the Applicable Authorized Representative at such time with respect to such Shared Collateral.

“Non-Controlling Authorized Representative Enforcement Date” means, with respect to any Non-Controlling Authorized Representative, the date which is 90 days (throughout which 90-day period such Non-Controlling Authorized Representative was the Major Non-Controlling Authorized Representative) after the occurrence of both (i) an Event of Default (under and as defined in the Additional First-Lien Document under which such Non-Controlling Authorized Representative is the Authorized Representative) and (ii) the Security Agent’s and each other Authorized Representative’s receipt of written notice from such Non-Controlling Authorized Representative certifying that (x) such Non-Controlling Authorized Representative is the Major Non-Controlling Authorized Representative and that an Event of Default (under and as defined in the Additional First-Lien Document under which such Non-Controlling Authorized Representative is the Authorized Representative) has occurred and is continuing and (y) the First-Lien Obligations of the Series with respect to which such Non-Controlling Authorized Representative is the Authorized Representative are currently due and payable in full (whether as a result of acceleration thereof or otherwise) in accordance with the terms of the applicable Additional First-Lien Document; provided that the Non-Controlling Authorized Representative Enforcement Date shall be stayed and shall not occur and shall be deemed not to have occurred with respect to any Shared Collateral (1) at any time the Administrative Agent or the Security Agent has commenced and is diligently pursuing any enforcement action with respect to such Shared Collateral or (2) at any time the Grantor which has granted a security interest in such Shared Collateral is then a debtor under or with respect to (or otherwise subject to) any Insolvency or Liquidation Proceeding.

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“Non-Controlling Secured Creditors” means, with respect to any Shared Collateral, the First-Lien Secured Creditors which are not Controlling Secured Creditors with respect to such Shared Collateral.

“Parent” shall have the meaning set forth in the introductory paragraph hereof.

“Person” shall mean any individual, partnership, joint venture, firm, corporation, limited liability company, association, trust or other enterprise or any government or political subdivision or any agency, department or instrumentality thereof.

“Possessory Collateral” means any Shared Collateral in the possession of the Security Agent (or its agents or bailees), to the extent that possession thereof perfects a Lien thereon under the Uniform Commercial Code of any jurisdiction.  Possessory Collateral includes, without limitation, any Certificated Securities, Promissory Notes, Instruments, and Chattel Paper, in each case, delivered to or in the possession of the Security Agent under the terms of the First-Lien Security Documents.

“Principal Intercreditor Agreement” means the Amended and Restated Intercreditor Agreement, dated as of June 2, 2016, among Wells Fargo Capital Finance, LLC, as the ABL Agent thereunder, MSSF, as Term Loan Administrative Agent and Term Loan Security Agent, and such other Persons as may become party thereto from time to time, and acknowledged by Parent, Holdings and the Company and certain other Grantors, as may be amended, restated, amended and restated, supplemented and/or otherwise modified from time to time.

“Proceeds” means all “proceeds”, as such term is defined in Article 9 of the UCC with respect to any Shared Collateral and, in any event, shall include the proceeds of any sale, collection or other liquidation of any Shared Collateral by any First-Lien Secured Creditor or received by the Applicable Authorized Representative or any First-Lien Secured Creditor pursuant to any such intercreditor agreement (other than this Agreement) with respect to such Shared Collateral and any payment or distribution made in respect of Shared Collateral in a Bankruptcy Case.

“Refinance” shall mean, in respect of any indebtedness, to refinance, extend, renew, retire, defease, amend, modify, supplement, restructure, replace, refund or repay, or to issue other indebtedness, in exchange or replacement for such indebtedness in whole or in part, whether with the same or other holders of indebtedness, arrangers, trustees and/or agents.  “Refinanced” and “Refinancing” shall have correlative meanings.

“Secured Credit Document” means (i) the Term Loan Credit Agreement and each other Term Loan Document, (ii) each Initial Additional First-Lien Document, and (iii) each Additional First-Lien Document.

“Security Agent” shall mean (i) in the case of any Term Loan Credit Agreement Obligations, the Term Loan Security Agent, (ii) in the case of the Initial Additional First-Lien Obligations, the Initial Additional Authorized Representative, and (iii) in the case of any other Series of Additional First-Lien Obligations or Additional First-Lien Secured Creditors that

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become subject to this Agreement after the date hereof, the Authorized Representative named for such Series in the applicable Joinder Agreement.

“Senior Class Debt” has the meaning assigned to such term in Section 5.13.

“Senior Class Debt Parties” has the meaning assigned to such term in Section 5.13.

“Senior Class Debt Representative” has the meaning assigned to such term in Section 5.13.

“Senior Lien” means the Liens on the Collateral in favor of the First-Lien Secured Creditors under the First-Lien Security Documents.

“Series” means (a) with respect to the First-Lien Secured Creditors, each of (i) the Term Loan Secured Creditors (in their capacities as such), (ii) the Initial Additional First-Lien Secured Creditors (in their capacities as such) and (iii) any other Additional First-Lien Secured Creditors that become subject to this Agreement after the date hereof that are represented by a common Authorized Representative (in its capacity as such for such other Additional First-Lien Secured Creditors) and (b) with respect to any First-Lien Obligations, each of (i) the Term Loan Credit Agreement Obligations, (ii) the Initial Additional First-Lien Obligations and (iii) the other Additional First-Lien Obligations incurred pursuant to any Additional First-Lien Document, the holders of which, pursuant to any Joinder Agreement, are to be represented hereunder by a common Authorized Representative (in its capacity as such for such other Additional First-Lien Obligations).

“Shared Collateral” means, at any time, Collateral in which the holders of two or more Series of First-Lien Obligations (or their respective Authorized Representatives or the Security Agent on behalf of such holders) have been granted a Lien which, subject to the Principal Intercreditor Agreement, constitutes Liens securing First Lien Obligations (as defined, for this purpose, in the Principal Intercreditor Agreement).

“Subsidiary” shall mean, with respect to any Person, any corporation, partnership, limited liability company, association, joint venture or other business entity of which more than 50% of the total voting power of shares of stock or other ownership interests entitled (without regard to the occurrence of any contingency) to vote in the election of the Person or Persons (whether directors, managers, trustees or other Persons performing similar functions) having the power to direct or cause the direction of the management and policies thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof; provided, in determining the percentage of ownership interests of any Person controlled by another Person, no ownership interest in the nature of a “qualifying share” of the former Person shall be deemed to be outstanding.

“Term Loan Administrative Agent” has the meaning assigned to such term in the recitals hereto; provided that the administrative agent with respect to any Additional First-Lien Obligations secured by Shared Collateral incurred pursuant to a Refinancing of the Term Loan Credit Agreement Obligations which has been designated in writing by the administrative agent and the security agent (in each case, under the Term Loan Credit Agreement so Refinanced) and

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the Company to each other Authorized Representative shall be the “Term Loan Administrative Agent” for purposes of this Agreement.

“Term Loan Credit Agreement” shall have the meaning set forth in the recitals hereto.

“Term Loan Lenders” shall have the meaning set forth in the recitals hereto.

“Term Loan Credit Agreement Obligations” means all “Secured Obligations” as defined in the Term Loan Security Agreement.

“Term Loan Documents” shall mean (x) the Term Loan Credit Agreement and the other “Credit Documents” (as defined in the Term Loan Credit Agreement), (y) each “Secured Hedging Agreement” (as defined in the Term Loan Credit Agreement) and (z) each of the other agreements, documents and instruments providing for or evidencing any Term Loan Credit Agreement Obligation (including any Refinancing of any Term Loan Credit Agreement Obligation), together with any amendments, replacements, modifications, extensions, renewals or supplements to, or restatements of, any of the foregoing (but excluding, for the avoidance of doubt, any documents agreement entered into in connection with a DIP Financing).

“Term Loan Secured Creditors” means the “Secured Creditors” as defined in the Term Loan Security Agreement.

“Term Loan Security Agent” has the meaning assigned to such term in the introductory paragraph of this Agreement; provided that the Term Loan Security Agent with respect to any Additional First-Lien Obligations secured by Shared Collateral incurred pursuant to a Refinancing of the Term Loan Credit Agreement Obligations which has been designated in writing by the Term Loan Administrative Agent and the Term Loan Security Agent (in each case, under the Term Loan Credit Agreement so Refinanced) and the Company to each other Authorized Representative shall be the “Term Loan Security Agent” for purposes of this Agreement.

“Term Loan Security Agreement” means the “Security Agreement” as defined in the Term Loan Credit Agreement.

“UCC” shall mean the New York Uniform Commercial Code, as in effect from time to time; provided, however, that in the event that, by reason of mandatory provisions of law, any or all of the attachment, perfection, priority, or remedies with respect to any Lien on any Collateral is governed by the Uniform Commercial Code as enacted and in effect in a jurisdiction other than the State of New York, the term “UCC” shall mean the Uniform Commercial Code as enacted and in effect in such other jurisdiction solely for purposes of the provisions thereof relating to such attachment, perfection, priority, or remedies.

“Wholly-Owned Subsidiary” shall mean, as to any Person, (a) any corporation 100% of whose capital stock is at the time owned by such Person and/or one or more Wholly-Owned Subsidiaries of such Person and (b) any partnership, limited liability company, association, joint venture or other entity in which such Person and/or one or more Wholly-Owned Subsidiaries of such Person has a 100% equity interest at such time (other than,

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in the case of a Subsidiary of the Company organized under the laws of a jurisdiction other than the United States or any state thereof, with respect to the preceding clauses (a) and (b), directors’ qualifying shares and/or other nominal amounts of shares required to be held by Persons other than the Company and its Subsidiaries under applicable law).

SECTION 1.02  Terms Generally.  The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.  The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation.”  The word “will” shall be construed to have the same meaning and effect as the word “shall”.  Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument, other document, statute or regulation herein shall be construed as referring to such agreement, instrument, other document, statute or regulation as from time to time amended, restated, amended and restated, supplemented, renewed, extended, refunded, replaced or Refinanced or otherwise modified to the extent not prohibited hereby, (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision of this Agreement, (d) all references herein to Exhibits, Sections and Annexes shall be construed to refer to Exhibits, Sections or Annexes of this Agreement, (e) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights, and (f) references to Sections or clauses shall refer to those portions of this Agreement, and any references to a clause shall, unless otherwise identified, refer to the appropriate clause within the same Section in which such reference occurs.

SECTION 1.03  Impairments.  Each of the parties hereto acknowledges that the Senior Lien priority provided to the First-Lien Secured Creditors of each Series in accordance with this Agreement shall not be affected or impaired in any manner whatsoever, including, without limitation, on account of: (i) the invalidity, irregularity or unenforceability of all or any part of the First-Lien Documents of a Series; (ii) any amendment, change or modification of any First-Lien Documents of a Series not in contravention of the terms of this Agreement; or (iii) any impairment, modification, change, exchange, release or subordination of or limitation on, any liability of, or stay of actions or lien enforcement proceedings against, Parent or any of its Subsidiaries party to any of the First-Lien Documents of a Series, its property, or its estate in bankruptcy resulting from any bankruptcy, arrangement, readjustment, composition, liquidation, rehabilitation, similar proceeding or otherwise involving or affecting any First-Lien Secured Creditor.

ARTICLE II

Priorities and Agreements with Respect to Shared Collateral

SECTION 2.01  Priority of Claims.  (a)  Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding, if an Event of Default has occurred and is continuing, and the Applicable Security Agent is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared

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Collateral in any Bankruptcy Case of the Company or any other Grantor or any First-Lien Secured Creditor receives any payment pursuant to any intercreditor agreement (other than this Agreement (to the extent such payment represents an application of Proceeds made pursuant to this Section 2.01)) with respect to any Shared Collateral, the Proceeds of any such Shared Collateral or of any distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-Lien Obligations are entitled under any intercreditor agreement (other than this Agreement (to the extent such distribution represents an application of Proceeds made pursuant to this Section 2.01)), shall be applied (i) FIRST, to the payment of all amounts owing to each Security Agent (in its capacity as such) pursuant to the terms of any Secured Credit Document, (ii) SECOND, to the payment in full of the First-Lien Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First-Lien Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents and (iii) THIRD, after payment of all First-Lien Obligations, to the Company and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct.

(b)It is acknowledged that the First-Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Secured Creditors of any Series.

(c)Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code as in effect from time to time in any applicable jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Obligations of any Series or any other circumstance whatsoever, each First-Lien Secured Creditor hereby agrees that the Liens securing each Series of First-Lien Obligations on any Shared Collateral shall be of equal priority.

SECTION 2.02  Actions with Respect to Shared Collateral; Prohibition on Contesting Liens (a) With respect to any Shared Collateral, (i) only the Applicable Security Agent shall act or refrain from acting with respect to the Shared Collateral (including with respect to any intercreditor agreement with respect to any Shared Collateral), and then only on the instructions of the Applicable Authorized Representative, (ii) the Applicable Security Agent shall not follow any instructions with respect to such Shared Collateral (including with respect to any intercreditor agreement with respect to any Shared Collateral) from any Non-Controlling Authorized Representative (or any other First-Lien Secured Creditor other than the Applicable Authorized Representative). and (iii) no Non-Controlling Authorized Representative or other First-Lien Secured Creditor (other than the Applicable Authorized Representative) shall or shall instruct the Applicable Security Agent to, commence any judicial or nonjudicial foreclosure proceedings with respect to, seek to have a trustee, receiver, liquidator or similar official appointed for or over, attempt any action to take possession of, exercise any right, remedy or power with respect to, or otherwise take any action to enforce its security interest in or realize upon, or take any other action available to it in respect of, any Shared Collateral (including with

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respect to any intercreditor agreement with respect to any Shared Collateral), whether under any First-Lien Security Document, applicable law or otherwise, it being agreed that only the Applicable Security Agent, acting on the instructions of the Applicable Authorized Representative and in accordance with the applicable First-Lien Security Documents, shall be entitled to take any such actions or exercise any such remedies with respect to Shared Collateral at such time.  Notwithstanding the equal priority of the Liens securing each Series of First-Lien Obligations, the Applicable Security Agent (acting on the instructions of the Applicable Authorized Representative) may deal with the Shared Collateral as if such Applicable Authorized Representative had a senior Lien on such Collateral (subject to Section 2.01).  No Non-Controlling Authorized Representative or Non-Controlling Secured Creditor will contest, protest or object (or support the challenge of any other Person) to any foreclosure proceeding or action brought by the Applicable Security Agent, the Applicable Authorized Representative or the Controlling Secured Creditor or any other exercise by the Applicable Security Agent, the Applicable Authorized Representative or the Controlling Secured Creditor of any rights and remedies relating to the Shared Collateral, or to cause the Security Agent to do so.  The foregoing shall not be construed to limit the rights and priorities of any First-Lien Secured Creditor, the Applicable Security Agent or any Authorized Representative with respect to any Collateral not constituting Shared Collateral.

(b)Each of the Authorized Representatives agrees that it will not accept any Lien on any collateral for the benefit of any Series of First-Lien Obligations (other than funds deposited for the discharge or defeasance of any Additional First-Lien Document, to the extent permitted by the applicable Secured Credit Documents of each other Series) other than pursuant to the First-Lien Security Documents to which it is a party, and by executing this Agreement (or a Joinder Agreement), each Authorized Representative (for itself and on behalf of the Series of First-Lien Secured Creditors for which it is acting hereunder) agrees to be bound by the provisions of this Agreement and the other First-Lien Security Documents applicable to it.

(c)Each of the Authorized Representative (for itself and on behalf of the Series of First-Lien Secured Creditors for which it is acting hereunder) agrees that it will not (and hereby waives any right to) question or contest or support any other Person in contesting, in any proceeding (including any Insolvency or Liquidation Proceeding), (i) the perfection, priority, validity, attachment or enforceability (notwithstanding any lack thereof, including without limitation, due to an absence or failure of, or delay in, the execution and filing of a mortgage with respect to real property, the execution and delivery of a control agreement, or otherwise obtaining perfection or priority) of a Lien held by or on behalf of any of the First-Lien Secured Creditors in all or any part of the Collateral, or (ii) the provisions of this Agreement; provided that nothing in this Agreement shall be construed to prevent or impair the rights of any Security Agent or any Authorized Representative to enforce this Agreement.

SECTION 2.03  No Interference; Payment Over.  (a)  Each First-Lien Secured Creditor agrees that (i) it will not challenge or question in any proceeding the validity or enforceability of any First-Lien Obligations of any Series or any First-Lien Security Document or the validity, attachment, perfection or priority (notwithstanding any lack thereof, including without limitation, due to an absence or failure of, or delay in, the execution and filing of a mortgage with respect to real property, the execution and delivery of a control agreement, or otherwise obtaining perfection or priority) of any Lien under any First-Lien Security Document

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or the validity or enforceability of the priorities, rights or duties established by or other provisions of this Agreement, (ii) it will not take or cause to be taken any action the purpose or intent of which is, or could be, to interfere, hinder or delay, in any manner, whether by judicial proceedings or otherwise, any sale, transfer or other disposition of the Shared Collateral by the Applicable Security Agent, (iii) except as provided in Section 2.02, it shall have no right to (A) direct the Applicable Security Agent or any other First-Lien Secured Creditor to exercise any right, remedy or power with respect to any Shared Collateral (including pursuant to any intercreditor agreement) or (B) consent to the exercise by the Applicable Security Agent or any other First-Lien Secured Creditor of any right, remedy or power with respect to any Shared Collateral, (iv) it will not institute any suit or assert in any suit, bankruptcy, insolvency or other proceeding any claim against the Applicable Security Agent or any other First-Lien Secured Creditor seeking damages from or other relief by way of specific performance, instructions or otherwise with respect to any Shared Collateral, and no Security Agent, Applicable Authorized Representative or other First-Lien Secured Creditor shall be liable for any action taken or omitted to be taken by the Applicable Security Agent, such Applicable Authorized Representative or any other First-Lien Secured Creditor with respect to any Shared Collateral in accordance with the provisions of this Agreement, (v) it will not seek, and hereby waives any right, to have any Shared Collateral or any part thereof marshaled upon any foreclosure or other disposition of such Collateral and (vi) it will not attempt, directly or indirectly, whether by judicial proceedings or otherwise, to challenge the enforceability of any provision of this Agreement; provided that nothing in this Agreement shall be construed to prevent or impair the rights of any of the Applicable Security Agent or any other First-Lien Secured Creditor to enforce this Agreement.

(b)Each First-Lien Secured Creditor hereby agrees that if it shall obtain possession of any Shared Collateral or shall realize any proceeds or payment in respect of any such Shared Collateral, pursuant to any First-Lien Security Document or by the exercise of any rights available to it under applicable law or in any Insolvency or Liquidation Proceeding or through any other exercise of remedies (including pursuant to any intercreditor agreement) or otherwise, at any time prior to the Discharge of each of the First-Lien Obligations, then it shall hold such Shared Collateral, proceeds or payment in trust for the other First-Lien Secured Creditors and promptly transfer such Shared Collateral, proceeds or payment, as the case may be, to the Applicable Security Agent, to be distributed in accordance with the provisions of Section 2.01.

SECTION 2.04  Automatic Release of Liens; Amendments to First-Lien Security Documents.  (a)  If, at any time the Applicable Security Agent forecloses upon or otherwise exercises remedies against any Shared Collateral in accordance with this Agreement resulting in a sale or disposition thereof, then (whether or not any Insolvency or Liquidation Proceeding is pending at the time) the Liens in favor of the other Security Agents for the benefit of each Series of First-Lien Secured Creditors upon such Shared Collateral will automatically be released and discharged; provided that any proceeds of any Shared Collateral realized therefrom shall be applied pursuant to Section 2.01.

(b)Each First-Lien Secured Creditor agrees that the Applicable Security Agent may enter into any amendment to any First-Lien Security Document (including, without limitation, to release any Liens securing any Series of First-Lien Obligations), so long as each

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Security Agent receives a certificate of an Authorized Officer of the Company stating that such amendment is permitted by the terms of each then extant Secured Credit Document.  Additionally, each First-Lien Secured Creditor agrees that the Applicable Security Agent may enter into any amendment to any First-Lien Security Document solely as such First-Lien Security Document relates to a particular Series of First-Lien Obligations (including, without limitation, to release any Liens securing such Series of First-Lien Obligations), so long as (x) such amendment is in accordance with the Secured Credit Documents pursuant to which such Series of First-Lien Obligations were incurred and (y) such amendment does not adversely affect the First-Lien Secured Creditors of any other Series in any material respect.

(c)Each Authorized Representative agrees to execute and deliver (at the sole cost and expense of the Grantors) all such authorizations and other instruments as shall reasonably be requested by the Applicable Security Agent or the Company to evidence and confirm any release of Shared Collateral or amendment to any First-Lien Security Document provided for in this Section.

(d)In determining whether an amendment to any First-Lien Security Document is permitted by this Section 2.04, the Applicable Security Agent may conclusively rely on a certificate of an officer of the Company stating that such amendment is permitted by Section 2.04(b) above.

SECTION 2.05  Certain Agreements with Respect to Bankruptcy or Insolvency Proceedings.  (a)  This Agreement shall be applicable both before and after the commencement of any Insolvency or Liquidation Proceeding and all converted or succeeding cases in respect thereof.  The relative rights of the First-Lien Secured Creditors in or to any distributions from or in respect of any Collateral or proceeds of any Collateral, shall continue after the commencement of any Insolvency or Liquidation Proceeding.  Accordingly, the provisions of this Agreement are intended to be and shall be enforceable as a subordination agreement within the meaning of Section 510 of the Bankruptcy Code.

(b)If the Company and/or any other Grantor shall become subject to a case (a “Bankruptcy Case”) under the Bankruptcy Code and shall, as debtor(s)-in-possession, move for approval of financing (“DIP Financing”) to be provided by one or more lenders (the “DIP Lenders”) under Section 364 of the Bankruptcy Code or any equivalent provision of any other Bankruptcy Law or the use of cash collateral under Section 363 of the Bankruptcy Code or any equivalent provision of any other Bankruptcy Law, each First-Lien Secured Creditor (other than any Controlling Secured Creditor or Authorized Representative of any Controlling Secured Creditor) agrees that it will raise no objection to any such financing or to the Liens on the Shared Collateral securing the same (“DIP Financing Liens”) or to any use of cash collateral that constitutes Shared Collateral, unless any Controlling Secured Creditor, or an Authorized Representative of any Controlling Secured Creditor, shall then oppose or object to such DIP Financing or such DIP Financing Liens or use of cash collateral (and (i) to the extent that such DIP Financing Liens are senior to the Liens on any such Shared Collateral for the benefit of the Controlling Secured Creditors, each Non-Controlling Secured Creditor will subordinate its Liens with respect to such Shared Collateral on the same terms as the Liens of the Controlling Secured Creditors (other than any Liens of any First-Lien Secured Creditors constituting DIP Financing Liens) are subordinated thereto, and (ii) to the extent that such DIP Financing Liens rank pari

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passu with the Liens on any such Shared Collateral granted to secure the First-Lien Obligations of the Controlling Secured Creditors, each Non-Controlling Secured Creditor will confirm the priorities with respect to such Shared Collateral as set forth herein), in each case so long as (A) the First-Lien Secured Creditors of each Series retain the benefit of their Liens on all such Shared Collateral pledged to the DIP Lenders, including proceeds thereof arising after the commencement of such proceeding, with the same priority vis-a-vis all the other First-Lien Secured Creditors (other than any Liens of the First-Lien Secured Creditors constituting DIP Financing Liens) as existed prior to the commencement of the Bankruptcy Case, (B) the First-Lien Secured Creditors of each Series are granted Liens on any additional collateral pledged to any First-Lien Secured Creditors as adequate protection or otherwise in connection with such DIP Financing or use of cash collateral, with the same priority vis-a-vis the First-Lien Secured Creditors as set forth in this Agreement, (C) if any amount of such DIP Financing or cash collateral is applied to repay any of the First-Lien Obligations, such amount is applied pursuant to Section 2.01, and (D) if any First-Lien Secured Creditors are granted adequate protection with respect to the First-Lien Obligations, including in the form of periodic payments, in connection with such DIP Financing or use of cash collateral, the proceeds of such adequate protection are applied pursuant to Section 2.01; provided that the First-Lien Secured Creditors of each Series shall have a right to object to the grant of a Lien to secure the DIP Financing over any collateral subject to Liens in favor of the First-Lien Secured Creditors of such Series or its Authorized Representative that shall not constitute Shared Collateral; and provided, further, that the First-Lien Secured Creditors receiving adequate protection shall not object to any other First-Lien Secured Creditor receiving adequate protection comparable to any adequate protection granted to such First-Lien Secured Creditors in connection with a DIP Financing or use of cash collateral.

SECTION 2.06  Reinstatement.  In the event that any of the First-Lien Obligations shall be paid in full and such payment or any part thereof shall subsequently, for whatever reason (including an order or judgment for disgorgement of a preference under the Bankruptcy Code, or any similar law, or the settlement of any claim in respect thereof), be required to be returned or repaid, the terms and conditions of this Article II shall be fully applicable thereto until all such First-Lien Obligations shall again have been paid in full in cash.

SECTION 2.07  Insurance.  As among the First-Lien Secured Creditors, the Applicable Security Agent, acting at the direction of the Applicable Authorized Representative, shall have the right to adjust or settle any insurance policy or claim covering or constituting Shared Collateral in the event of any loss thereunder and to approve any award granted in any condemnation or similar proceeding affecting the Shared Collateral solely to the extent the First-Lien Secured Creditors or holders of any Series of First-Lien Obligations possess such right in the then extant First-Lien Documents, and the Applicable Security Agent shall apply the proceeds received from any such adjustment, settlement or award in accordance with this Agreement.

SECTION 2.08  Refinancings.  The First-Lien Obligations of any Series may be Refinanced, in whole or in part, in each case, without notice to, or the consent (except to the extent a consent is otherwise required to permit the Refinancing transaction under any Secured Credit Document) of any First-Lien Secured Creditor of any other Series, all without affecting the priorities provided for herein or the other provisions hereof; provided that the Authorized Representative of the holders of any such Refinancing indebtedness shall have executed a

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Joinder Agreement on behalf of the holders of such Refinancing indebtedness at the time such Refinancing indebtedness is incurred.

SECTION 2.09  Possessory Security Agent as Gratuitous Bailee for Perfection.  (a)  The Applicable Security Agent agrees to hold any Shared Collateral constituting Possessory Collateral that is part of the Collateral in its possession or control (or in the possession or control of its agents or bailees) as gratuitous bailee for the benefit of each other First-Lien Secured Creditor and any assignee solely for the purpose of perfecting the security interest granted in such Possessory Collateral, if any, pursuant to the applicable First-Lien Security Documents, in each case, subject to the terms and conditions of this Section 2.09; provided that at any time the Discharge of the obligations of the Series for which the Applicable Security Agent is acting occurs, such Security Agent shall (at the sole cost and expense of the Grantors), promptly deliver all Possessory Collateral to the Security Agent that will be the Applicable Security Agent after giving effect to such Discharge together with any necessary endorsements (or otherwise allow such successor Security Agent to obtain control of such Possessory Collateral).  Each Security Agent agrees to hold any Shared Collateral constituting Possessory Collateral, from time to time in its possession, as gratuitous bailee for the benefit of each other First-Lien Secured Creditor and any assignee, solely for the purpose of perfecting the security interest granted in such Possessory Collateral, if any, pursuant to the applicable First-Lien Security Documents, in each case, subject to the terms and conditions of this Section 2.09.

(b)The duties or responsibilities of each Security Agent under this Section 2.09 shall be limited solely to holding any Shared Collateral constituting Possessory Collateral as gratuitous bailee for the benefit of each other First-Lien Secured Creditor for purposes of perfecting the Lien held by such First-Lien Secured Creditors therein.

ARTICLE III

Existence and Amounts of Liens and Obligations

SECTION 3.01  Determinations with Respect to Amounts of Liens and Obligations.  Whenever any Security Agent or any Authorized Representative shall be required, in connection with the exercise of its rights or the performance of its obligations hereunder, to determine the existence or amount of any First-Lien Obligations of any Series, or the Shared Collateral subject to any Lien securing the First-Lien Obligations of any Series, it may request that such information be furnished to it in writing by each other Authorized Representative and each other Security Agent and shall be entitled to make such determination or not make any determination on the basis of the information so furnished; provided, however, that if an Authorized Representative or a Security Agent shall fail or refuse reasonably promptly to provide the requested information, the requesting Security Agent or Authorized Representative shall be entitled to make any such determination by such method as it may, in the exercise of its good faith judgment, determine, including by reliance upon a certificate of an officer of the Company.  The Security Agent and each Authorized Representative may rely conclusively, and shall be fully protected in so relying, on any determination made by it in accordance with the provisions of the preceding sentence (or as otherwise directed by a court of competent jurisdiction) and shall have no liability to any Grantor, any First-Lien Secured Creditor or any other person as a result of such determination.

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ARTICLE IV

The Security Agent

SECTION 4.01  Appointment and Authority.  (a)  Each of the First-Lien Secured Creditors hereby irrevocably appoints the Applicable Security Agent to act on its behalf as the Security Agent hereunder and under each of the other First-Lien Security Documents and authorizes the Applicable Security Agent to take such actions on its behalf and to exercise such powers as are delegated to the Applicable Security Agent by the terms hereof or thereof, including for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any Grantor to secure any of the First-Lien Obligations, together with such powers and discretion as are reasonably incidental thereto.  In this connection, the Applicable Security Agent and any co-agents, sub-agents and attorneys-in-fact appointed by the Applicable Security Agent pursuant to Section 4.05 for purposes of holding or enforcing any Lien on the Shared Collateral (or any portion thereof) granted under any of the First-Lien Security Documents, or for exercising any rights and remedies thereunder at the direction of the Applicable Authorized Representative, shall be entitled to the benefits, without duplication, of all provisions of this Article IV (as though such co-agents, sub-agents and attorneys-in-fact were the security agent (or similar term) under the First-Lien Security Documents) as if set forth in full herein with respect thereto.

(b)Each Non-Controlling Secured Creditor acknowledges and agrees that the Applicable Security Agent shall be entitled, for the benefit of the First-Lien Secured Creditors, to sell, transfer or otherwise dispose of or deal with any Shared Collateral as provided herein and in the First-Lien Security Documents, without regard to any rights to which the Non-Controlling Secured Creditors would otherwise be entitled as a result of holding First-Lien Obligations in their capacity as Non-Controlling Secured Creditors.  Without limiting the foregoing, each Non-Controlling Secured Creditor agrees that none of the Applicable Security Agent, the Applicable Authorized Representative or any other First-Lien Secured Creditor shall have any duty or obligation first to marshal or realize upon any type of Shared Collateral (or any other Collateral securing any of the First-Lien Obligations), or to sell, dispose of or otherwise liquidate all or any portion of such Shared Collateral (or any other Collateral securing any First-Lien Obligations), in any manner that would maximize the return to the Non-Controlling Secured Creditors, notwithstanding that the order and timing of any such realization, sale, disposition or liquidation may affect the amount of proceeds actually received by the Non-Controlling Secured Creditors from such realization, sale, disposition or liquidation.  Each of the First-Lien Secured Creditors waives any claim it may now or hereafter have against the Applicable Security Agent, the Applicable Authorized Representative or any other First-Lien Secured Creditor of any Series of First-Lien Obligations for which the Applicable Authorized Representative acts arising out of (i) any actions which the Security Agent, the Applicable Authorized Representative or any such First-Lien Secured Creditor takes or omits to take (including, actions with respect to the creation, perfection or continuation of Liens on any Collateral, actions with respect to the foreclosure upon, sale, release or depreciation of, or failure to realize upon, any of the Collateral and actions with respect to the collection of any claim for all or any part of the First-Lien Obligations from any account debtor, guarantor or any other party) in accordance with the applicable First-Lien Security Documents or any other agreement related thereto or to the collection of the First-Lien Obligations or the valuation, use, protection or release of any security for the First-Lien

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Obligations, (ii) any election by any Applicable Authorized Representative or any holders of First-Lien Obligations, in any proceeding instituted under the Bankruptcy Code, of the application of Section 1111(b) of the Bankruptcy Code or (iii) subject to Section 2.05, any borrowing by, or grant of a security interest or administrative expense priority under Section 364 of the Bankruptcy Code or any equivalent provision of any other Bankruptcy Law by, the Company or any of its Subsidiaries, as debtor-in-possession.  Notwithstanding any other provision of this Agreement, the Applicable Security Agent shall not accept any Shared Collateral in full or partial satisfaction of any First-Lien Obligations pursuant to Section 9-620 of the Uniform Commercial Code of any jurisdiction, without the consent of each Authorized Representative representing holders of First-Lien Obligations for whom such collateral constitutes Shared Collateral.

(c)Each Authorized Representative acknowledges and agrees that upon execution and delivery of a Joinder Agreement substantially in the form of Annex I by an additional Authorized Representative, the Applicable Security Agent, the Applicable Authorized Representative and each Grantor in accordance with Section 5.13, the Applicable Security Agent will continue to act in its capacity as Applicable Security Agent in respect of the then existing Authorized Representatives and such additional Authorized Representative.

SECTION 4.02  Rights as a First-Lien Secured Creditor. The Person serving as the Applicable Security Agent hereunder shall have the same rights and powers in its capacity as a First-Lien Secured Creditor under any Series of First-Lien Obligations that it holds as any other First-Lien Secured Creditor of such Series and may exercise the same as though it were not the Applicable Security Agent, and the term “First-Lien Secured Creditor” or “First-Lien Secured Creditors” or (as applicable) “Term Loan Secured Creditor”, “Term Loan Secured Creditors”, “Additional First-Lien Secured Creditor”, “Additional First-Lien Secured Creditors”, “Initial Additional First-Lien Secured Party” or “Initial Additional First-Lien Secured Parties” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Applicable Security Agent hereunder in its individual capacity.  Such Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Company or any subsidiary or other affiliate thereof as if such Person were not the Applicable Security Agent hereunder and without any duty to account therefor to any other First-Lien Secured Creditor.

SECTION 4.03  Exculpatory Provisions.  (a)  Each Security Agent shall not have any duties or obligations except those expressly set forth herein and in the other First-Lien Security Documents.  Without limiting the generality of the foregoing, each Security Agent:

(i)shall not be subject to any fiduciary or other implied duties of any kind or nature to any Person, regardless of whether an Event of Default has occurred and is continuing;

(ii)shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other First-Lien Security Documents that such Security Agent is required to exercise as directed in writing by the Applicable Authorized Representative; provided that such Security Agent shall not be required to take any action that, in its

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opinion or the opinion of its counsel, may expose such Security Agent to liability or that is contrary to any First-Lien Security Document or applicable law;

(iii)shall not, except as expressly set forth herein and in the other First-Lien Security Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company or any of its affiliates that is communicated to or obtained by the Person serving as the Applicable Security Agent or any of its affiliates in any capacity;

(iv)shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Applicable Authorized Representative or (ii) in the absence of its own gross negligence or willful misconduct or (iii) in reliance on a certificate of an authorized officer of the Company stating that such action is permitted by the terms of this Agreement (it being understood and agreed that each Security Agent shall be deemed not to have knowledge of any Event of Default under any Series of First-Lien Obligations unless and until notice describing such Event Default is given to such Security Agent by the Authorized Representative of such First-Lien Obligations or the Company);

(v)shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other First-Lien Security Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other First-Lien Security Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the First-Lien Security Documents, (v) the value or the sufficiency of any Shared Collateral for any Series of First-Lien Obligations, or (vi) the satisfaction of any condition set forth in any Secured Credit Document, other than to confirm receipt of items expressly required to be delivered to such Security Agent;

(vi)shall not have any fiduciary duties of any kind or nature under any Additional First-Lien Document (but shall be entitled to all protections provided to the security agent (or similar term) therein);

(vii)with respect to the Term Loan Credit Agreement or any Additional First-Lien Document, may conclusively assume that the Grantors have complied with all of their obligations thereunder unless advised in writing by the Authorized Representative thereunder to the contrary specifically setting forth the alleged violation; and

(viii)may conclusively rely on any certificate of an Authorized Officer of the Company provided pursuant to Section 2.04(d).

(b)Each First-Lien Secured Creditor acknowledges that, in addition to acting as the initial Security Agent, MSSF also serves as Term Loan Administrative Agent and Security

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Agent (under, and as defined in, the Term Loan Credit Agreement), and each First-Lien Secured Creditor hereby waives any right to make any objection or claim against MSSF (or any successor Security Agent or any of their respective counsel) based on any alleged conflict of interest or breach of duties arising from the Security Agent also serving as the Term Loan Administrative Agent and Security Agent (under, and as defined in, the Term Loan Credit Agreement).

SECTION 4.04  Reliance by Security Agent.  Each Security Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person.  Each Security Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon.  Each Security Agent may consult with legal counsel (who may include, but shall not be limited to, counsel for the Company or counsel for the Term Loan Administrative Agent), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.

SECTION 4.05  Delegation of Duties.  Each Security Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other First-Lien Security Document by or through any one or more sub-agents appointed by such Security Agent.  Each Security Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective affiliates.  The exculpatory provisions of this Article shall apply to any such sub-agent and to the affiliates of such Security Agent and any such sub-agent.

SECTION 4.06  Resignation of Security Agent.  Each Applicable Security Agent may at any time give notice of its resignation as an Applicable Security Agent under this Agreement and the other First-Lien Security Documents to each Authorized Representative and the Company.  Upon receipt of any such notice of resignation, the Applicable Authorized Representative shall have the right, in consultation with the Company, to appoint a successor, which shall be a bank or trust company with an office in the United States, or an affiliate of any such bank or trust company with an office in the United States.  If no such successor shall have been so appointed by the Applicable Authorized Representative and shall have accepted such appointment within 30 days after the retiring Applicable Security Agent gives notice of its resignation, then the retiring Applicable Security Agent may, on behalf of the First-Lien Secured Creditors, appoint a successor Applicable Security Agent meeting the qualifications set forth above (but without the consent of any First-Lien Secured Creditor); provided that if the Applicable Security Agent shall notify the Company and each Authorized Representative that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Applicable Security Agent shall be discharged from its duties and obligations hereunder and under the First-Lien Security Documents (except that in the case of any collateral security held by the retiring Applicable Security Agent on behalf of the First-Lien Secured Creditors under any of the First-Lien Security Documents, the retiring Applicable Security Agent shall continue to hold such collateral security solely for purposes of maintaining the perfection of the security interests of the First-Lien Secured Creditors therein until such time as a successor Applicable Security Agent is appointed

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but with no obligation to take any further action at the request of the Applicable Authorized Representative, any other First-Lien Secured Creditors or any Grantor) and (b) all payments, communications and determinations provided to be made by, to or through the retiring Applicable Security Agent, if any, shall instead be made by or to each Authorized Representative directly, until such time as a successor Applicable Security Agent is appointed as provided for above in this Section 4.06.  Upon the acceptance of a successor’s appointment as Applicable Security Agent hereunder and under the applicable Series of First-Lien Security Documents, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Applicable Security Agent, and the retiring Applicable Security Agent shall be discharged from all of its duties and obligations hereunder or under the other First-Lien Security Documents (if not already discharged therefrom as provided above in this Section).  After the retiring Applicable Security Agent’s resignation hereunder and under the other Credit Documents, the provisions of this Article IV shall continue in effect for the benefit of such retiring Applicable Security Agent, its sub-agents and their respective affiliates in respect of any actions taken or omitted to be taken by any of them while the retiring Applicable Security Agent was acting as Applicable Security Agent.  Upon any notice of resignation of the Applicable Security Agent hereunder and under the First-Lien Security Documents, the Company agrees to use commercially reasonable efforts to transfer (and maintain the validity and priority of) the Liens in favor of the retiring Applicable Security Agent under the First-Lien Security Documents to the successor Applicable Security Agent.

SECTION 4.07  Non-Reliance on Applicable Security Agent and Other First-Lien Secured Creditors.  Each First-Lien Secured Creditor acknowledges that it has, independently and without reliance upon any Applicable Security Agent, any Authorized Representative or any other First-Lien Secured Creditor or any of their affiliates and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement and the applicable First-Lien Documents.  Each First-Lien Secured Creditor also acknowledges that it will, independently and without reliance upon any Applicable Security Agent, any Authorized Representative or any other First-Lien Secured Creditor or any of their affiliates and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other First-Lien Document or any related agreement or any document furnished hereunder or thereunder.

SECTION 4.08  Collateral and Guaranty Matters.  Each of the First-Lien Secured Creditors irrevocably authorizes the Applicable Security Agent, at its option and in its discretion:

(i)to release any Lien on any property granted to or held by any Security Agent under any First-Lien Security Document in accordance with Section 2.04 or upon receipt of a certificate of an officer of the Company stating that the releases of such Lien is permitted by the terms of each then extant Secured Credit Document;  and

(ii)to release any Grantor from its obligations under the First-Lien Documents upon receipt of a certificate of an officer of the Company stating that such release is permitted by the terms of each then extant First-Lien Document.

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ARTICLE V

Miscellaneous

SECTION 5.01  Notices.  All notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopy or other electronic image transmission, as follows:

(a)if to the Company or any Grantor, to the [Company][Parent] at [          ], Attention of: [          ] (Phone No. [          ], Fax. No. [          ], Email [          ]);

(b)if to the Term Loan Security Agent or the Term Loan Administrative Agent, to it at [          ], Attention of: [          ] (Phone No. [          ], Fax. No. [          ], Email [          ]); and

(c)if to the Initial Additional Authorized Representative, to it at [          ], Attention of: [          ] (Phone No. [          ], Fax. No. [          ], Email [          ]); and

(d)if to any other Additional Authorized Representative, to it at the address set forth in the applicable Joinder Agreement.

Any party hereto may change its address or telecopy number for notices and other communications hereunder by notice to the other parties hereto.  All notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been given on the date of receipt (if a Business Day) and on the next Business Day thereafter (in all other cases) if delivered by hand or overnight courier service or sent by telecopy (or other electronic image scan transmission) or on the date five Business Days after dispatch by certified or registered mail if mailed, in each case delivered, sent or mailed (properly addressed) to such party as provided in this Section 5.01 or in accordance with the latest unrevoked direction from such party given in accordance with this Section 5.01.  Unless a Security Agent or Authorized Representative notifies each other party hereto in writing otherwise, notices and other communications may also be delivered by e-mail to the e-mail address of a representative of the applicable Person provided above or in writing from time to time by such Person.

SECTION 5.02  Waivers; Amendment; Joinder Agreements.  (a)  No failure or delay on the part of any party hereto in exercising any right or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power.  The rights and remedies of the parties hereto are cumulative and are not exclusive of any rights or remedies that they would otherwise have.  No waiver of any provision of this Agreement or consent to any departure by any party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given.  No notice or demand on any party hereto in any case shall entitle such party to any other or further notice or demand in similar or other circumstances.

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(b)Neither this Agreement nor any provision hereof may be terminated, waived, amended or modified (other than pursuant to any Joinder Agreement) except pursuant to an agreement or agreements in writing entered into by each Authorized Representative and each Security Agent (and with respect to any such termination, waiver, amendment or modification to Section 2.04(b) or which otherwise by the terms of this Agreement requires the Company’s consent or which increases the obligations or reduces the rights of the Company or any other Grantor, with the consent of the Company); provided that, subject to Section 2.06, no Authorized Representative or Security Agent with respect to any Series shall have the right to consent to any such termination, waiver, amendment or modification applicable to such Series in the event that all indebtedness and all other First-Lien Obligations with respect to such Series have been Discharged.

(c)Notwithstanding the foregoing, without the consent of any First-Lien Secured Creditor, any Authorized Representative may become a party hereto by execution and delivery of a Joinder Agreement in accordance with Section 5.13 and upon such execution and delivery, such Authorized Representative and the Additional First-Lien Secured Creditors and Additional First-Lien Obligations of the Series for which such Authorized Representative is acting shall be subject to the terms hereof and the terms of the other First-Lien Security Documents applicable thereto.

(d)Notwithstanding the foregoing, without the consent of any other Authorized Representative or First-Lien Secured Creditor, the Applicable Security Agent may effect amendments and modifications to this Agreement to the extent necessary to reflect any incurrence of any Additional First-Lien Obligations in compliance with the Term Loan Credit Agreement (if then in effect) and each other then-extant Secured Credit Document.

SECTION 5.03  Parties in Interest.  This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, as well as the other First-Lien Secured Creditors, all of whom are intended to be bound by, and to be third party beneficiaries of, this Agreement.   No other Person shall have or be entitled to assert rights or benefits hereunder, other than the specific rights of the Grantors under Section 5.02.

SECTION 5.04  Survival of Agreement.  All covenants, agreements, representations and warranties made by any party in this Agreement shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of this Agreement.

SECTION 5.05  Counterparts.  This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which when taken together shall constitute a single contract.  Delivery of an executed signature page to this Agreement by facsimile or other electronic transmission (including “.pdf” or “.tif” format) shall be as effective as delivery of a manually signed counterpart of this Agreement.

SECTION 5.06  Severability.  Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a

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particular jurisdiction shall not invalidate such provision in any other jurisdiction.  The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.

SECTION 5.07  Governing Law; Jurisdiction.  This Agreement AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

SECTION 5.08  Submission to Jurisdiction Waivers; Consent to Service of Process.  Each Security Agent and each Authorized Representative, on behalf of itself and the First-Lien Secured Creditors of the Series for whom it is acting, irrevocably and unconditionally:

(a)submits for itself and its property in any legal action or proceeding relating to this Agreement, or for recognition and enforcement of any judgment in respect thereof, to the exclusive general jurisdiction of the courts of the State of New York in the County of New York, Borough of Manhattan, the federal courts of the United States of America for the Southern District of New York, and appellate courts from any thereof;

(b)consents that any such action or proceeding may be brought in such courts and waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same;

(c)agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to such Person (or its Authorized Representative) at the address referred to in Section 5.01;

(d)agrees that nothing herein shall affect the right of any other party hereto (or any First-Lien Secured Creditor) to effect service of process in any other manner permitted by law or shall limit the right of any party hereto (or any First-Lien Secured Creditor) to sue in any other jurisdiction; and

(e)waives, to the maximum extent not prohibited by law, any right it may have to claim or recover in any legal action or proceeding referred to in this Section 5.08 any special, exemplary, punitive or consequential damages.

SECTION 5.09  WAIVER OF JURY TRIAL.  EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION OR PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT.  EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE

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BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 5.09.

SECTION 5.10  Headings.  Article, Section and Annex headings used herein are for convenience of reference only, are not part of this Agreement and are not to affect the construction of, or to be taken into consideration in interpreting, this Agreement.

SECTION 5.11  Conflicts.  In the event of any conflict or inconsistency between the provisions of this Agreement and the provisions of any of the First-Lien Security Documents or any of the other Secured Credit Documents, the provisions of this Agreement shall govern and control, except with respect to the scope of the assets included in the respective “granting clauses” in the various First-Lien Security Documents.  Each First-Lien Secured Creditor, each Security Agent and each Authorized Representative acknowledges and agrees that the terms and provisions of this Agreement do not violate any term or provision of the respective First-Lien Documents to which such First-Lien Secured Creditor, Security Agent or Authorized Representative is a party.

SECTION 5.12  Provisions Solely to Define Relative Rights.  The provisions of this Agreement are and are intended solely for the purpose of defining the relative rights of the First-Lien Secured Creditors in relation to one another.  Nothing in this Agreement is intended to or shall impair the obligations of any Grantor, which are absolute and unconditional, to pay the First-Lien Obligations as and when the same shall become due and payable in accordance with their terms.

SECTION 5.13  Additional Pari Passu Debt.  To the extent, but only to the extent not prohibited by the provisions of the Term Loan Credit Agreement (if then in effect) and the Additional First-Lien Documents then in effect, the Company may incur Additional First-Lien Obligations.  Any such additional class or series of Additional First-Lien Obligations (the “Senior Class Debt”) may be secured by a Senior Lien and may be Guaranteed by the Grantors on a pari passu basis, in each case under and pursuant to the Additional First-Lien Documents, if and subject to the condition that the Authorized Representative and Security Agent of any such Senior Class Debt (each, a “Senior Class Debt Representative”), acting on behalf of the holders of such Senior Class Debt (such Authorized Representative and holders in respect of any Senior Class Debt being referred to as the “Senior Class Debt Parties”), becomes a party to this Agreement by satisfying the conditions set forth in clauses (i) through (iv) of the immediately succeeding paragraph.

In order for a Senior Class Debt Representative to become a party to this Agreement,

(i)such Senior Class Debt Representative and the Applicable Security Agent shall have executed and delivered (and each Grantor shall have acknowledged) an instrument substantially in the form of Annex I (with such changes as may be reasonably approved by the Applicable Security Agent and such Senior Class Debt Representative) pursuant to which such Senior Class Debt Representative becomes an Authorized Representative and a Security Agent hereunder, and the Senior Class Debt in respect of

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which such Senior Class Debt Representative is the Authorized Representative and the related Senior Class Debt Parties become subject hereto and bound hereby;

(ii)such Senior Class Debt Representative shall have become a party to the Principal Intercreditor Agreement;

(iii)the Company shall have (x) delivered to each Security Agent and each Authorized Representative true and complete copies of each of the Additional First-Lien Documents relating to such Senior Class Debt, certified as being true and correct by an authorized officer of the Company and (y) identified the obligations to be designated as Additional First-Lien Obligations and the initial aggregate principal amount or face amount thereof;

(iv)(x) all filings, recordations and/or amendments or supplements to the First-Lien Security Documents necessary or desirable in the reasonable judgment of the Applicable Security Agent to create and perfect the Liens securing the relevant obligations relating to such Senior Class Debt shall have been made, executed and/or delivered (or, with respect to any such filings or recordations, acceptable provisions to perform such filings or recordings have been taken in the reasonable judgment of the Applicable Security Agent), and (y) all fees and taxes in connection therewith shall have been paid (or acceptable provisions to make such payments have been taken in the reasonable judgment of the Applicable Security Agent), subject, in the case of any action referred to in preceding sub-clause (x) or (y), to any extension of the time permitted for the taking of such action in accordance with the relevant Additional First-Lien Documents; and

(v)the Additional First-Lien Documents, as applicable, relating to such Senior Class Debt shall provide, in a manner reasonably satisfactory to the Applicable Security Agent, that each Senior Class Debt Party with respect to such Senior Class Debt will be subject to and bound by the provisions of this Agreement in its capacity as a holder of such Senior Class Debt.

SECTION 5.14  Integration.  This Agreement together with the other Secured Credit Documents and the First-Lien Security Documents represents the agreement of each of the First-Lien Secured Creditors with respect to the subject matter hereof and thereof and there are no promises, undertakings, representations or warranties by any Grantor, any Security Agent, any or any other First-Lien Secured Creditor relative to the subject matter hereof not expressly set forth or referred to herein or in the other Secured Credit Documents or the First-Lien Security Documents.

SECTION 5.15  Grantors; Additional Grantors.  The Company will cause each Subsidiary of the Company which becomes a Grantor after the date hereof or is a Wholly-Owned Subsidiary which is a Domestic Subsidiary (other than an Excluded Subsidiary) required by any First-Lien Document. to acknowledge this Agreement by causing such Person to execute and deliver to the parties hereto an Intercreditor Agreement Acknowledgement in substantially the form attached hereto as Annex II, whereupon such Person will be deemed to have acknowledged and consented to the terms hereof to the same extent as if it had executed and delivered an

26

Intercreditor Agreement Acknowledgement as of the date first written above.  The Company shall promptly provide each Security Agent with a copy of an Intercreditor Agreement Acknowledgement executed and delivered pursuant to this Section 5.15.The parties hereto further agree that, notwithstanding any failure to take the actions required by the immediately preceding sentence, each Person which becomes a Grantor at any time (and any security granted by any such Person) shall be subject to the provisions hereof as fully as if same constituted a Grantor party hereto and had complied with the requirements of the immediately preceding sentence.

SECTION 5.16  Avoidance Issues.  If any First-Lien Secured Creditor is required in any Insolvency or Liquidation Proceeding or otherwise to turn over or otherwise pay to the estate of the Company or any other Grantor any amount (a “Recovery”), then such First-Lien Secured Creditor shall be entitled to a reinstatement of its respective First-Lien Obligations with respect to all such recovered amounts.  If this Agreement shall have been terminated prior to such Recovery, this Agreement shall be reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise affect the obligations of the parties hereto from such date of reinstatement.

SECTION 5.17  Further Assurances.  Each Authorized Representative and each Security Agent, on behalf of itself and its respective First-Lien Secured Creditors, and each Grantor, agrees that each of them shall take such further action and shall execute (without recourse or warranty) and deliver such additional documents and instruments (in recordable form, if requested) as any Authorized Representative or Security Agent (or in the circumstances set forth in Section 5.02, the Company) may reasonably request to effectuate the terms of and the lien priorities contemplated by this Agreement (including with respect to Additional First-Lien Obligations).

[SIGNATURE PAGES FOLLOW]

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

MORGAN STANLEY SENIOR FUNDING, INC.,
as Security Agent for the Term Loan Secured Creditors
By:
	Name:
	Title:
MORGAN STANLEY SENIOR FUNDING, INC.,
as Authorized Representative for the Term Loan Secured Creditors
By:
	Name:
	Title:

[Signature Page to Intercreditor Agreement]

[          ]
as Initial Additional Authorized Representative
By:
	Name:
	Title:

[Signature Page to Intercreditor Agreement]

PARI PASSU INTERCREDITOR AGREEMENT ACKNOWLEDGMENT

Each Grantor hereby acknowledges that it has received a copy of this Agreement, as in effect on the date first written above, and each such Grantor hereby (i) consents thereto, (ii) agrees to recognize all rights granted thereby to each Security Agent, each Authorized Representative and each First-Lien Secured Creditor, (iii) waives the provisions of Section 9-615(a) of the UCC in connection with the application of proceeds of Collateral in accordance with the provisions of this Agreement, (iv) acknowledges and agrees that no Security Agent, Authorized Representative or First-Lien Secured Creditor of any one Series shall ever be accountable or liable for any actions taken or omitted by any Security Agent, Authorized Representative or First-Lien Secured Creditor of any other Series, or its or any of their officers, employees, agents, successors or assigns in connection therewith or incidental thereto or in consequence thereof, including any improper use or disclosure of any proprietary information or other intellectual property by any Security Agent, Authorized Representative or First-Lien Secured Creditor of another Series, or its or any of their officers, employees, agents, successors or assigns or any other damage to or misuse or loss of any property of the Grantors as a result of any action taken or omitted by such Security Agent or Authorized Representative, or its officers, employees, agents, successors or assigns, and (v) agrees that it will not do any act or perform any obligation which is not in accordance with the agreements set forth in this Agreement as in effect on the date hereof.  Each Grantor further acknowledges and agrees that, other than as provided in Section 5.02 of this Agreement (pursuant to Section 5.03 of this Agreement), it is not an intended beneficiary or third party beneficiary under this Agreement, as amended, restated, supplemented, or otherwise modified hereafter.

ADVANCEPIERRE FOODS, INC.,
as a Grantor
By:
	Name:
	Title:
ADVANCEPIERRE FOODS HOLDINGS, INC.,
as a Grantor
By:
	Name:
	Title:

PIERRE HOLDCO, INC.,
as Grantor
By:
	Name:
	Title:
[OTHER GRANTORS],
as Grantor
By:
	Name:
	Title:

ANNEX I

FORM OF REPRESENTATIVE SUPPLEMENT

[FORM OF] REPRESENTATIVE SUPPLEMENT NO. [          ], dated as of [       ], to the PARI PASSU INTERCREDITOR AGREEMENT, dated as of [        ] (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Pari Passu Intercreditor Agreement”), among Morgan Stanley Senior Funding. Inc., as Security Agent for the Term Loan Secured Creditors (in such capacity, the “Term Loan Security Agent”), as the Term Loan Administrative Agent and as Authorized Representative for the Term Loan Secured Creditors, [         ], as Initial Additional Authorized Representative, and the additional Authorized Representatives from time to time a party thereto, and acknowledged by AdvancePierre Foods Holdings, Inc., a Delaware corporation, Pierre Holdco, Inc. a Delaware corporation, AdvancePierre Foods, Inc., a Delaware corporation (the “Company”), and certain other Grantors.

A.  Capitalized terms used herein but not otherwise defined herein shall have the meanings assigned to such terms in the Pari Passu Intercreditor Agreement.

B.  As a condition to the ability of the Company to incur Additional First-Lien Obligations and to secure such Senior Class Debt with the Senior Lien and to have guarantees of such Senior Class Debt by the Grantors secured on a senior basis, in each case under and pursuant to the First-Lien Security Documents, the Senior Class Debt Representative in respect of such Senior Class Debt is required to become an Authorized Representative and a Security Agent under, and such Senior Class Debt and the Senior Class Debt Parties in respect thereof are required to become subject to and bound by, the Pari Passu Intercreditor Agreement.  Section 5.13 of the Pari Passu Intercreditor Agreement provides that such Senior Class Debt Representative may become an Authorized Representative and a Secured Creditor under, and such Senior Class Debt and such Senior Class Debt Parties may become subject to and bound by, the Pari Passu Intercreditor Agreement, pursuant to the execution and delivery by the Senior Class Representative of an instrument in the form of this Representative Supplement and the satisfaction of the other conditions set forth in Section 5.13 of the Pari Passu Intercreditor Agreement.  The undersigned Senior Class Debt Representative with respect to [insert description of new Senior Class Debt] (the “New Representative”) is executing this Representative Supplement in accordance with the requirements of the Pari Passu Intercreditor Agreement and the First-Lien Security Documents.

Accordingly, the Applicable Authorized Representative, the Applicable Security Agent and the New Representative agree as follows:

SECTION 1.  In accordance with Section 5.13 of the Pari Passu Intercreditor Agreement, the New Representative by its signature below becomes an Authorized Representative and Security Agent under, and the related Senior Class Debt and Senior Class Debt Parties become subject to and bound by, the Pari Passu Intercreditor Agreement with the same force and effect as if the New Representative had originally been named therein as an Authorized Representative, and the New Representative, on behalf of itself and such Senior Class Debt Parties, hereby agrees to all the terms and provisions of the Pari Passu Intercreditor Agreement applicable to it as an Authorized Representative and a Security Agent and to the

Senior Class Debt Parties that it represents as Additional First-Lien Secured Creditors.  Each reference to an “Authorized Representative” in the Pari Passu Intercreditor Agreement shall be deemed to include the New Representative. and each reference to a “Security Agent” in the Pari Passu Intercreditor Agreement shall be deemed to include the New Representative.  The Pari Passu Intercreditor Agreement is hereby incorporated herein by reference.

SECTION 2.  The New Representative represents and warrants to the Applicable Security Agent, the Applicable Authorized Representative and the other First-Lien Secured Creditors that (i) it has full power and authority to enter into this Representative Supplement, in its capacity as [agent] [trustee], (ii) this Representative Supplement has been duly authorized, executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with the terms of such Agreement and (iii) the Additional First-Lien Documents relating to such Senior Class Debt provide that, upon the New Representative’s entry into this Agreement, the Senior Class Debt Parties in respect of such Senior Class Debt will be subject to and bound by the provisions of the Pari Passu Intercreditor Agreement as Additional First-Lien Secured Creditors.

SECTION 3.  This Representative Supplement may be executed in counterparts, each of which shall be deemed an original, but all of which when taken together shall constitute a single contract.  This Representative Supplement shall become effective when the Applicable Security Agent and the Applicable Authorized Representative shall have received a counterpart of this Representative Supplement that bears the signature of the New Representative and each Grantor.  Delivery of an executed signature page to this Representative Supplement by facsimile or other electronic transmission (including in “.pdf” or “.tif” format) shall be effective as delivery of a manually signed counterpart of this Representative Supplement.

SECTION 4.  Except as expressly supplemented hereby, the Pari Passu Intercreditor Agreement shall remain in full force and effect.

SECTION 5.  THIS REPRESENTATIVE SUPPLEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

SECTION 6.  In case any one or more of the provisions contained in this Representative Supplement should be held invalid, illegal or unenforceable in any respect, no party hereto shall be required to comply with such provision for so long as such provision is held to be invalid, illegal or unenforceable, but the validity, legality and enforceability of the remaining provisions contained herein and in the Pari Passu Intercreditor Agreement shall not in any way be affected or impaired.  The parties hereto shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.

SECTION 7.  All communications and notices hereunder shall be in writing and given as provided in Section 5.01 of the Pari Passu Intercreditor Agreement.  All communications and notices hereunder to the New Representative shall be given to it at the

address set forth below its signature hereto (or as otherwise provided in accordance with Section 5.01 of the Pari Passu Intercreditor Agreement).

IN WITNESS WHEREOF, the New Representative, the Applicable Authorized Representative, the Applicable Security Agent and each Grantor have duly executed this Representative Supplement to the Pari Passu Intercreditor Agreement as of the day and year first above written.

[NAME OF NEW REPRESENTATIVE], as
[          ] for the holders of
[                            ],
by
	Name:
	Title:
Address for notices:
attention of:
Telecopy:

Acknowledged by:
[       ],
as Applicable Security Agent,
By:
	Name:
	Title:
By:
	Name:
	Title:
[       ],
as Applicable Authorized Representative,
By:
	Name:
	Title:
ADVANCEPIERRE FOODS, INC.,
as a Grantor
By:
	Name:
	Title:
ADVANCEPIERRE FOODS HOLDINGS, INC.,
as a Grantor
By:
	Name:
	Title:

PIERRE HOLDCO, INC.,
as Grantor
By:
	Name:
	Title:
[OTHER GRANTORS],
as Grantor
By:
	Name:
	Title:

ANNEX II

FORM OF PARI PASSU INTERCREDITOR AGREEMENT ACKNOWLEDGMENT

The undersigned,                      , a                 (“Grantor”), hereby acknowledges that it has received a copy of the Pari Passu Intercreditor Agreement, dated as of [         ] (as amended, restated, amended and restated, supplemented and/or otherwise modified from time to time, the “Intercreditor Agreement”; capitalized terms used herein but not otherwise defined herein shall have the meanings set forth in the Intercreditor Agreement), among Morgan Stanley Senior Funding. Inc., as Security Agent for the Term Loan Secured Creditors (in such capacity, the “Term Loan Security Agent”), as Term Loan Administrative Agent and as Authorized Representative for the Term Loan Secured Creditors, [         ], as Initial Additional Authorized Representative, and the additional Authorized Representatives from time to time a party thereto, and acknowledged by AdvancePierre Foods Holdings, Inc., a Delaware corporation, Pierre Holdco, Inc. a Delaware corporation, AdvancePierre Foods, Inc., a Delaware corporation (the “Company”), and certain other Grantors. Each Grantor hereby acknowledges that it has received a copy of the Intercreditor Agreement, as in effect on the date first written above, and each such Grantor hereby (i) consents thereto, (ii) agrees to recognize all rights granted thereby to each Security Agent, each Authorized Representative and each First-Lien Secured Creditor, (iii) waives the provisions of Section 9-615(a) of the UCC in connection with the application of proceeds of Collateral in accordance with the provisions of the Intercreditor Agreement, (iv) acknowledges and agrees that no Security Agent, Authorized Representative or First-Lien Secured Creditor of any one Series shall ever be accountable or liable for any actions taken or omitted by any Security Agent, Authorized Representative or First-Lien Secured Creditor of any other Series, or its or any of their officers, employees, agents, successors or assigns in connection therewith or incidental thereto or in consequence thereof, including any improper use or disclosure of any proprietary information or other intellectual property by any Security Agent, Authorized Representative or First-Lien Secured Creditor of another Series, or its or any of their officers, employees, agents, successors or assigns or any other damage to or misuse or loss of any property of the Grantors as a result of any action taken or omitted by such Security Agent or Authorized Representative, or its officers, employees, agents, successors or assigns, and (v) agrees that it will not do any act or perform any obligation which is not in accordance with the agreements set forth in the Intercreditor Agreement as in effect on the date hereof.  Each Grantor further acknowledges and agrees that, other than as provided in Section 5.02 of the Intercreditor Agreement (pursuant to Section 5.03 of the Intercreditor Agreement), it is not an intended beneficiary or third party beneficiary under the Intercreditor Agreement, as amended, restated, supplemented, or otherwise modified hereafter.

[                         ],
as a Grantor
By:
	Name:
	Title:

EXHIBIT K-3

FORM OF RESTATED INTERCREDITOR AGREEMENT

EXHIBIT K-3

[SECOND] AMENDED AND RESTATED INTERCREDITOR AGREEMENT

dated as of [         ]

among

WELLS FARGO CAPITAL FINANCE, LLC,
as Agent
under the ABL Credit Agreement,

MORGAN STANLEY SENIOR FUNDING, INC.,
as Administrative Agent and as Security Agent
under the First-Lien Credit Agreement

and

[                     ],

as Administrative Agent and as Security Agent
under the Second-Lien Credit Agreement

Table of Contents

		Page
Section 1. Definitions		3
1.1	Defined Terms	3
1.2	Terms Generally	24
Section 2. Lien Priorities		25
2.1	Relative Priorities	25
Section 3. Term Loan Priority Collateral		29
3.1	Exercise of Remedies — Prior to Discharge of First-Lien Obligations	29
3.2	Exercise of Remedies — After Discharge of First-Lien Obligations	32
3.3	Payments Over	35
3.4	Other Agreements	35
3.5	Insolvency or Liquidation Proceedings	44
Section 4. ABL Priority Collateral		46
4.1	Exercise of Remedies — Prior to Discharge of ABL Obligations	46
4.2	Exercise of Remedies — After Discharge of ABL Obligations	49
4.3	Payments Over	52
4.4	Other Agreements	53
4.5	Insolvency or Liquidation Proceedings	60
Section 5. General		64
5.1	Amendments; Refinancings	64
5.2	Legends	68
5.3	Options to Purchase Obligations	68
5.4	Insolvency or Liquidation Proceedings Generally	73
5.5	Reliance; Waivers; Etc.	76
Section 6. Cooperation with Respect to ABL Priority Collateral		83
6.1	Consent to License to Use Intellectual Property	83
6.2	Access to Information	84
6.3	Access to Property to Process and Sell Inventory	84
Section 7. Application of Proceeds		86
7.1	Application of Proceeds in Distributions by the First-Lien Security Agent	86
7.2	Application of Proceeds in Distributions by the ABL Agent	88
7.3	Application of Proceeds in Distributions by the Second-Lien Security Agent	90
7.4	Mixed Collateral Proceeds	91
7.5	Tracing of Proceeds in Deposit Accounts	91
Section 8. Miscellaneous		91
8.1	Conflicts	91
8.2	Effectiveness; Continuing Nature of this Agreement; Amendment and Restatement; Severability	92

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8.3	Amendments; Waivers	92
8.4	Information Concerning Financial Condition of the Company and its Subsidiaries	93
8.5	Submission to Jurisdiction; Waivers	94
8.6	Notices	94
8.7	Further Assurances	95
8.8	APPLICABLE LAW	95
8.9	Binding on Successors and Assigns	95
8.10	Specific Performance	95
8.11	Headings	95
8.12	Counterparts	95
8.13	Authorization; No Conflict	95
8.14	No Third Party Beneficiaries	95
8.15	Provisions Solely to Define Relative Rights	96
8.16	Additional Grantors	96
8.17	Avoidance Issues	96
8.18	Subrogation	97
8.19	Effectiveness in Insolvency or Liquidation Proceedings	98

Exhibit A	Form of Intercreditor Agreement Joinder
Exhibit B	Form of Intercreditor Agreement Acknowledgement

ii

This [SECOND] AMENDED AND RESTATED INTERCREDITOR AGREEMENT, dated as of [         ] (as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms hereof, this “Agreement”), is made by and among WELLS FARGO CAPITAL FINANCE, LLC (in its individual capacity, and any successor thereto by merger, consolidation or otherwise, “WFCF”), as ABL Agent (as defined below), MORGAN STANLEY SENIOR FUNDING, INC. (“MSSF”), as First-Lien Administrative Agent and as First-Lien Security Agent (each term as defined below), and [                    ] (“[      ]”), as Second-Lien Administrative Agent and as Second-Lien Security Agent (each term as defined below), and is acknowledged by ADVANCEPIERRE FOODS HOLDINGS, INC., a Delaware corporation (“Parent”), PIERRE HOLDCO, INC., a Delaware corporation (“Holdings”), ADVANCEPIERRE FOODS, INC., a Delaware corporation (the “Company”), and certain other GRANTORS (as defined in Section 1.1).  Capitalized terms used herein but not otherwise defined herein shall have the meanings set forth in Section 1 below.

RECITALS:

WHEREAS, Company has previously entered into that certain Second Amended and Restated Credit Agreement, dated as of October 10, 2012 (as amended pursuant to that Amendment No. One to Second Amended and Restated Credit Agreement, dated as of January 29, 2015, and as otherwise amended, supplemented or modified from time to time prior to the date hereof, the “Prior ABL Credit Agreement”), made by and among the Company, as borrower, the lenders from time to time party thereto, and WFCF, as agent for such lenders;

WHEREAS, Company has previously entered into that certain First-Lien Credit Agreement, dated as of October 10, 2012 (as amended, supplemented or modified from time to time prior to the date hereof, the “Prior First-Lien Credit Agreement”), made by and among Holdings, the Company, as borrower, the lenders from time to time party thereto, and Deutsche Bank Trust Company Americas (“Deutsche Bank”), as administrative agent and security agent for such lenders;

WHEREAS, Company has previously entered into that certain Second-Lien Credit Agreement, dated as of October 10, 2012 (as amended, supplemented or modified from time to time prior to the date hereof, the “Prior Second-Lien Credit Agreement”), made by and among Holdings, the Company, as borrower, the lenders from time to time party thereto, and Deutsche Bank, as administrative agent and security agent for such lenders;

WHEREAS, concurrently with the execution and delivery of the Prior ABL Credit Agreement, the Prior First-Lien Credit Agreement and the Prior Second-Lien Credit Agreement, the Company entered into that certain Intercreditor Agreement, dated as of October 10, 2012 (as amended, supplemented or modified from time to time prior to the date hereof, the “Original Intercreditor Agreement”), made by and among Holdings, the Company, the subsidiaries of the Company party thereto as grantors, WFCF (as agent for the lenders under the Prior ABL Credit Agreement),  Deutsche Bank (as agent for the lenders under the Prior First-Lien Credit Agreement), and Deutsche Bank (as agent for the lenders under the Prior Second-Lien Credit Agreement);

WHEREAS, the Company previously entered into Amendment Number Three to Second Amended and Restated Credit Agreement, dated as of June 2, 2016 (the “ABL Amendment Agreement”), among the Company, as borrower, the lenders party thereto (the “ABL Lenders”), and WFCF, as agent for the ABL Lenders (in such capacity and together with its successors and assigns in such capacity, the “ABL Agent”), which ABL Amendment Agreement amended the Prior ABL Credit Agreement (the Prior ABL Credit Agreement, as so amended by the ABL Amendment Agreement, and as it may be as further amended, amended and restated, supplemented, otherwise modified and/or Refinanced from time, the

1

“ABL Credit Agreement”);

WHEREAS, concurrently with the execution and delivery of the ABL Credit Agreement, the Company entered into a new Term Loan Credit Agreement, dated as of June 2, 2016 (as amended, amended and restated, supplemented, otherwise modified and/or Refinanced from time to time, the “First-Lien Credit Agreement”), among Parent, Holdings, the Company, as borrower, the lenders from time to time party thereto, MSSF, as administrative agent (in such capacity and together with its successors (by merger, consolidation or otherwise) and assigns in such capacity, the “First-Lien Administrative Agent”; the First-Lien Administrative Agent, the ABL Agent and the Second-Lien Administrative Agent (as defined below), the “Administrative Agents”; the First-Lien Administrative Agent and the First-Lien Security Agent (as defined below), the “First-Lien Agents”), and MSSF, as security agent (in such capacity and together with its successors (by merger, consolidation or otherwise) and assigns in such capacity, the “First-Lien Security Agent”; the First-Lien Security Agent, the ABL Agent and the Second-Lien Security Agent (as defined below), the “Security Agents”), and the proceeds from such First-Lien Credit Agreement were applied to repay in full all outstanding obligations under the Prior Second-Lien Credit Agreement and repay in full all outstanding obligations under the Prior First-Lien Credit Agreement;

WHEREAS, concurrently with the execution and delivery of the ABL Credit Agreement and the First-Lien Credit Agreement, the First-Lien Administrative Agent, the First-Lien Security Agent and the ABL Agent amended and restated the Original Intercreditor Agreement in the form of that certain Amended and Restated Intercreditor Agreement, dated as of June 2, 2016 (as amended, supplemented or modified from time to time prior to the date hereof, the “Prior Intercreditor Agreement”), which Prior Intercreditor Agreement was acknowledged by Parent, Holdings, the Company and certain Grantors;

WHEREAS, pursuant to the various ABL Documents (as defined below), (i) the Grantors (other than the Company) have previously provided guarantees for the ABL Obligations (as defined below), and (ii) the Grantors have provided security for the ABL Obligations;

WHEREAS, pursuant to the various First-Lien Documents (as defined below), (i) the Grantors (other than the Company) have previously provided guarantees for the First-Lien Obligations (as defined below), and (ii) the Grantors have provided security for the First-Lien Obligations;

WHEREAS, the Company has entered into a new [Second-Lien Credit Agreement], dated as of the date hereof (as amended, amended and restated, supplemented, otherwise modified and/or Refinanced from time to time, the “Second-Lien Credit Agreement”; and, together with the ABL Credit Agreement and the First-Lien Credit Agreement, the “Credit Agreements” ), among Parent, Holdings, the Company, as borrower, the lenders party thereto (the “Second Lien Lenders”), [      ], as administrative agent (in such capacity and together with its successors (by merger, consolidation or otherwise) and assigns in such capacity, the “Second-Lien Administrative Agent”), and [      ], as security agent (in such capacity and together with its successors (by merger, consolidation or otherwise) and assigns in such capacity, the “Second-Lien Security Agent”; the Second-Lien Security Agent and the Second-Lien Administrative Agent, the “Second-Lien Agents”);

WHEREAS, pursuant to the various Second-Lien Documents (as defined below), (i) the Grantors (other than the Company) are providing guarantees for the Second-Lien Obligations (as defined below), and (ii) the Grantors are providing security for the Second-Lien Obligations;

WHEREAS, the First-Lien Administrative Agent, the First-Lien Security Agent, the ABL Agent, the Second-Lien Administrative Agent and the Second-Lien Security Agent have determined to further amend and restate the Prior Intercreditor Agreement as set forth herein, and Parent, Holdings, the

2

Company and the other Guarantors have agreed to consent to and acknowledge such further amendment and restatement;

WHEREAS, Parent, Holdings, the Company and the other Grantors intend to secure the ABL Obligations under the ABL Credit Agreement and any other ABL Documents (including any Permitted Refinancing thereof (as defined below)) with a First Priority Lien (as defined below) on the ABL Priority Collateral (as defined below) and a Third Priority Lien (as defined below) on the Term Loan Priority Collateral (as defined below);

WHEREAS, Parent, Holdings, the Company and the other Grantors intend to secure the First-Lien Obligations under the First-Lien Credit Agreement and any other First-Lien Documents (including any Permitted Refinancing thereof) with a First Priority Lien on the Term Loan Priority Collateral and a Second Priority Lien (as defined below) on the ABL Priority Collateral; and

WHEREAS, Parent, Holdings, the Company and the other Grantors intend to secure the Second-Lien Obligations under the Second-Lien Credit Agreement and any other Second-Lien Documents (including any Permitted Refinancing thereof) with a Second Priority Lien on the Term Loan Priority Collateral and a Third Priority Lien on the ABL Priority Collateral;

NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto agree as follows:

Section 1.  Definitions.

1.1Defined Terms.  The following terms when used in this Agreement, including its introductory paragraph and recitals, shall have the following meanings:

“ABL Agent” shall have the meaning set forth in the recitals hereto and includes any New ABL Agent to the extent set forth in Section 4.4(h).

“ABL Bank Product Agreements” shall mean “Bank Product Agreements” (as that term is (and the component definitions as used therein are) defined in the ABL Credit Agreement).

“ABL Bank Product Creditor” shall mean the “Bank Product Provider” (as that term is (and the component definitions as used therein are) defined in the ABL Credit Agreement).

“ABL Bank Product Obligations” shall mean the “Bank Product Obligations” (as that term is defined in the ABL Credit Agreement).

“ABL Collateral Priority Lien” shall have the meaning set forth in Sections 4.4(a)(iv) and 4.4(b)(iv), as applicable.

“ABL Credit Agreement” shall have the meaning set forth in the recitals hereto.

“ABL Credit Bid Rights” shall mean, in respect of any order relating to a sale of assets constituting Term Loan Priority Collateral in any Insolvency or Liquidation Proceeding, that (i) such order grants the ABL Agent and the ABL Secured Parties (individually and in any combination) the right to bid at the sale of such assets and the right to offset its claims secured by ABL Liens upon such assets against the purchase price of such assets if (A) the bid of the ABL Agent or such ABL Secured Parties is the highest bid or otherwise determined by a court to be the best offer at a sale, (B) the ABL Agent or such ABL Secured Parties provide evidence of financing adequate to close the sale and (C) the bid of the

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ABL Agent or such ABL Secured Parties includes a cash purchase price component payable at the closing of the sale in an amount that would be sufficient on the date of the closing of the sale, if such amount were applied to such payment on such date, to pay all unpaid Term Loan Priority Obligations (except unasserted contingent obligations in respect of indemnities and expense reimbursements) and to satisfy all Liens entitled to priority over the First-Liens and/or Second-Liens that attach to the proceeds of the sale, and such order requires such amount to be so applied and (ii) such order allows the claims of the ABL Agent and the ABL Secured Parties in such Insolvency or Liquidation Proceeding to the extent required for the grant of such rights.

“ABL Debt Cap” means, as of any date of determination, an amount equal to the lesser of (a) the greater of (i) the maximum aggregate principal amount of “Indebtedness” (as defined in the First-Lien Credit Agreement) permitted to be outstanding under the “ABL Loan Documents” under the terms of, and as defined in, the First-Lien Credit Agreement plus, without duplication, the maximum aggregate principal amount of “Indebtedness” (as defined in the First Lien Credit Agreement) secured by the Collateral on a pari passu basis with the ABL Obligations that is permitted to be outstanding under the terms of the First-Lien Credit Agreement, as determined under the terms of the First-Lien Credit Agreement as in effect on such date of determination, and (ii) the amount that would be determined under the preceding clause (i) if such amount were determined under the terms of the First-Lien Credit Agreement as in effect on the date of this Agreement; and (b) the greater of (i) the maximum aggregate principal amount of “[Indebtedness]” (as defined in the Second-Lien Credit Agreement) permitted to be outstanding under the “ABL Loan Documents” under the terms of, and as defined in, the Second-Lien Credit Agreement plus, without duplication, the maximum aggregate principal amount of “Indebtedness” (as defined in the Second-Lien Credit Agreement) secured by the Collateral on a pari passu basis with the ABL Obligations that is permitted to be outstanding under the terms of the Second-Lien Credit Agreement, as determined under the terms of the Second-Lien Credit Agreement as in effect on such date of determination, and (ii) the amount that would be determined under the preceding clause (i) if such amount were determined under the terms of the Second-Lien Credit Agreement as in effect on the date of this Agreement.

“ABL DIP Financing” shall have the meaning set forth in Section 4.5(a).

“ABL Documents” shall mean (x) the ABL Credit Agreement and the other “Loan Documents” (as defined in the ABL Credit Agreement), (y) the ABL Bank Product Agreements and (z) each of the other agreements, documents and instruments providing for or evidencing any ABL Obligations (including any Permitted Refinancing of any ABL Obligations), together with any amendments, replacements, modifications, extensions, renewals or supplements to, or restatements of, any of the foregoing in accordance with the terms hereof and thereof (but excluding, for the avoidance of doubt, any documents entered into in connection with an ABL DIP Financing or a First-Lien DIP Financing).

“ABL Lenders” shall have the meaning set forth in the recitals hereto.

“ABL Lien” shall mean any Lien created by the ABL Documents.

“ABL Notice” shall have the meaning set forth in Section 3.1(a)(i).

“ABL Obligations” shall mean (a) all obligations (including guaranty obligations) of every nature of each Grantor from time to time owed to the ABL Secured Parties or any of them, under any ABL Document (including any ABL Document in respect of a Permitted Refinancing of any ABL Obligations), whether for principal, premium, interest (including interest which, but for the filing of a petition in bankruptcy with respect to Parent or any of its Subsidiaries, would have accrued on any ABL

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Obligation (including any Permitted Refinancing of any ABL Obligations and any “Increase” (as defined in the ABL Credit Agreement as in effect on the date hereof)), at the rate provided in the respective documentation, whether or not a claim is allowed against such Person for such interest in the related bankruptcy proceeding), reimbursement of amounts drawn under (and obligations to cash collateralize) letters of credit, fees, expenses, indemnification or otherwise, (b) all ABL Bank Product Obligations and (c) any obligations in respect of Additional Debt which are designated as “ABL Obligations” pursuant to Section 8.3(b).

“ABL Permitted Liens” shall mean the “Permitted Liens” under, and as defined in, the ABL Credit Agreement (as in effect on the date hereof).

“ABL Priority Collateral” shall mean all of the following Collateral and all interests of each Grantor in the following Collateral, in each case whether now owned or existing or hereafter acquired or arising and wherever located, including (1) all rights of each Grantor to receive moneys due and to become due under or pursuant to the following, (2) all rights of each Grantor to receive return of any premiums for or proceeds of any insurance, indemnity, warranty or guaranty with respect to the following or to receive condemnation proceeds with respect to the following, (3) all claims of each Grantor for damages arising out of or for breach of or default under any of the following, and (4) all rights of each Grantor to terminate, amend, supplement, modify or waive performance under any of the following, to perform thereunder and to compel performance and otherwise exercise all remedies thereunder:

(i)all Accounts, but for purposes of this clause (i) excluding rights to payment for any property which specifically constitutes Term Loan Priority Collateral (and not by virtue of clause (x) of the definition thereof) which has been or is to be sold, leased, licensed, assigned or otherwise disposed of; provided, however, that all rights to payment arising from any sale of Inventory shall constitute ABL Priority Collateral;

(ii)all Chattel Paper;

(iii)all Deposit Accounts and all cash, checks, other negotiable instruments, funds and other property held therein or credited thereto, and all Money (in each case, other than the Asset Sale Proceeds Account, and all cash, checks, securities, financial assets or other property held in the Asset Sale Proceeds Account or credited to the Asset Sale Proceeds Account which constitute Term Loan Priority Collateral and all identifiable proceeds of any Term Loan Priority Collateral);

(iv)all Inventory;

(v)to the extent evidencing or governing any of the items referred to in the preceding clauses (i) through (iv), all General Intangibles and Negotiable Collateral; provided that to the extent any of the foregoing also relates to Term Loan Priority Collateral, only that portion related to the items referred to in the preceding clauses (i) through (iv) as being included in the ABL Priority Collateral shall be included in the ABL Priority Collateral;

(vi)to the extent relating to any of the items referred to in the preceding clauses (i) through (v), all Insurance; provided that to the extent any of the foregoing also relates to Term Loan Priority Collateral, only that portion related to the items referred to in the preceding clauses (i) through (v) as being included in the ABL Priority Collateral shall be included in the ABL Priority Collateral;

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(vii)to the extent relating to any of the items referred to in the preceding clauses (i) through (vi), all Supporting Obligations; provided that to the extent any of the foregoing also relates to Term Loan Priority Collateral only that portion related to the items referred to in the preceding clauses (i) through (vi) as being included in the ABL Priority Collateral shall be included in the ABL Priority Collateral;

(viii)to the extent relating to any of the items referred to in the preceding clauses (i) through (vii), all Commercial Tort Claims; provided that to the extent any of the foregoing also relates to Term Loan Priority Collateral only that portion related to the items referred to in the preceding clauses (i) through (vii) as being included in the ABL Priority Collateral shall be included in the ABL Priority Collateral;

(ix)all Books, Records and Collateral Records relating to the foregoing (including without limitation, all books, databases, customer lists, engineer drawings, Records and Collateral Records, whether tangible or electronic, which contain any information relating to any of the foregoing); and

(x)all Cash Proceeds and, solely to the extent not constituting Term Loan Priority Collateral, non-Cash Proceeds, products, accessions, rents and profits of or in respect of any of the foregoing (including without limitation, all insurance proceeds) and all collateral security, guarantees and other Collateral Support given by any Person with respect to any of the foregoing;

provided, however, that (i) if Collateral of any type is received in exchange for ABL Priority Collateral in accordance with the terms of the ABL Credit Agreement, such Collateral will be treated as ABL Priority Collateral and (ii) if Collateral of any type is received in exchange for Term Loan Priority Collateral in accordance with the terms of the First-Lien Credit Agreement or the Second-Lien Credit Agreement, such Collateral will be treated as Term Loan Priority Collateral.

“ABL Priority Collateral Enforcement Actions” shall have the meaning set forth in Section 6.3(a).

“ABL Priority Collateral Processing and Sale Period” shall have the meaning set forth in Section 6.3(a).

“ABL Priority Obligations” means all ABL Obligations exclusive of the Excess ABL Obligations, which Excess ABL Obligations shall be excluded from (and shall not constitute) ABL Priority Obligations.

“ABL Secured Parties” shall mean (a) the lenders (including, in any event, each letter of credit issuer and each swingline lender), agents and arrangers under the ABL Credit Agreement and shall include all former lenders, agents and arrangers under the ABL Credit Agreement to the extent that any ABL Obligations owing to such Persons were incurred while such Persons were lenders, agents or arrangers under the ABL Credit Agreement and such ABL Obligations have not been paid or satisfied in full, (b) the ABL Bank Product Creditors, and (c) all new ABL Secured Parties to the extent set forth in Section 4.4(h).

“ABL Security Documents” shall mean the “Security Agreement” (as defined in the ABL Credit Agreement) and any other agreement, document or instrument pursuant to which a Lien is granted securing any ABL Obligations (including any Permitted Refinancing of any ABL Obligations) or under which rights or remedies with respect to such Liens are governed, together with any amendments, replacements, modifications, extensions, renewals or supplements to, or restatements of, any of the

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foregoing in accordance herewith; provided that, notwithstanding the foregoing, the ABL Credit Agreement shall not be an ABL Security Document.

“ABL Standstill Period” shall have the meaning set forth in Section 3.1(a).

“ABL/Second-Lien Notice” shall have the meaning set forth in Section 3.2(a)(i).

“ABL/Second-Lien Standstill Period” shall have the meaning set forth in Section 3.2(a).

“Account” shall mean an account (as that term is defined in Article 9 of the UCC).

“Additional Debt” shall have the meaning set forth in Section 8.3(b).

“Administrative Agents” shall have the meaning set forth in the recitals hereto.

“Agents” shall mean collectively, the ABL Agent, the First-Lien Agents and the Second-Lien Agents, and “Agent” shall mean any one of them.

“Agreement” shall have the meaning set forth in the introductory paragraph hereof.

“Asset Sale Proceeds Account” shall mean one or more Deposit Accounts or Securities Accounts, together with the cash, cash equivalents, financial assets, negotiable instruments and other evidence of payment, and other funds on deposit therein or credited thereto, to the extent consisting solely of Term Loan Priority Collateral.

“Bankruptcy Code” shall mean Title 11 of the United States Code entitled “Bankruptcy,” as now and hereafter in effect, or any successor statute.

“Bankruptcy Law” shall mean the Bankruptcy Code, and any similar federal or state or non-U.S. law or statute for the supervision, administration or relief of debtors, including, without limitation, bankruptcy or insolvency laws.

“Books” shall mean books and records (including each Grantor’s Records indicating, summarizing, or evidencing such Grantor’s assets (including the Collateral) or liabilities, each Grantor’s Records relating to such Grantor’s business operations or financial condition, and each Grantor’s goods or General Intangibles related to such information).

“Business Day” shall mean any day except Saturday, Sunday and any day which shall be in New York, New York, a legal holiday or a day on which banking institutions are authorized or required by law or other government action to close.

“Capital Lease” shall mean, as applied to any Person, any lease of any property (whether real, person or mixed) by that Person as lessee that, in conformity with GAAP, is or should be accounted for as a capital lease on the balance sheet of that Person; provided that whether such lease is a Capital Lease shall be determined according to GAAP as in effect on the date hereof.

“Capital Stock” shall mean all shares, options, warrants, interests, participations or other equivalents (regardless of how designated) of or in a Person, whether voting or nonvoting, including common stock, preferred stock, or any other “equity security” (as such term is defined in Rule 3a11-1 of the General Rules and Regulations promulgated by the SEC under the Securities Exchange Act of 1934, as in effect from time to time).

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“Capitalized Lease Obligations” shall mean, with respect to any Person, all obligations under Capital Leases of such Person, in each case taken at the amount thereof accounted for as indebtedness in accordance with GAAP; provided that in determining whether a Capital Lease constitutes a Capitalized Lease Obligation, and to what extent, GAAP as in effect on the date hereof shall be utilized.

“Cash Proceeds” shall mean all proceeds of any Collateral received by any Grantor or Secured Party consisting of cash and checks.

“Chattel Paper” shall mean chattel paper (as that term is defined in the UCC) and includes tangible chattel paper and electronic chattel paper.

“Collateral” shall mean all property (whether real, personal, movable or immovable) now or hereafter acquired and wherever located (and proceeds thereof) with respect to which any security interests have been granted (or purported to be granted) by any Grantor pursuant to any Security Document.

“Collateral Records” shall mean all books, records, ledger cards, files, correspondence, customer lists, blueprints, technical specifications, manuals, computer software, computer printouts, tapes, disks and related data processing software and similar items that at any time evidence or contain information relating to any of the Collateral or are otherwise necessary or helpful in the collection thereof or realization thereupon.

“Collateral Support” shall mean all property (real or personal) assigned, hypothecated or otherwise securing any Collateral and shall include any security agreement or other agreement granting a lien or security interest in such real or personal property.

“Commercial Tort Claims” shall mean all commercial tort claims (as that term is defined in Article 9 of the UCC).

“Company” shall have the meaning set forth in the introductory paragraph hereto.

“Comparable ABL Security Document” shall mean, in relation to any Collateral subject to any Lien created under any Term Loan Security Document, that ABL Document which creates (or purports to create) a Lien on the same Collateral, granted by the same Grantor, as the same may be amended, amended and restated, modified or otherwise supplemented from time to time in accordance with the terms hereof, thereof and the Credit Agreements.

“Comparable First-Lien Security Document” shall mean, in relation to any Collateral subject to any Lien created under any ABL Security Document, that First-Lien Document which creates (or purports to create) a Lien on the same Collateral, granted by the same Grantor, as the same may be amended, amended and restated, modified or otherwise supplemented from time to time in accordance with the terms hereof, thereof and the Credit Agreements.

“Comparable Second-Lien Security Document” shall mean, in relation to any Collateral subject to any Lien created under any ABL Security Document or First-Lien Security Document, that Second-Lien Document which creates (or purports to create) a Lien on the same Collateral, granted by the same Grantor, as the same may be amended, amended and restated, modified or otherwise supplemented from time to time in accordance with the terms hereof, thereof and the Credit Agreements.

“Contingent Obligation” shall mean, as to any Person, any obligation of such Person as a result of such Person being a general partner of any other Person, unless the underlying obligation is

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expressly made non-recourse as to such general partner, and any obligation of such Person guaranteeing or intended to guarantee any Indebtedness, leases, dividends or other obligations (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, any obligation of such Person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (x) for the purchase or payment of any such primary obligation or (y) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the holder of such primary obligation against loss in respect thereof; provided, however, that the term “Contingent Obligation” shall not include endorsements of instruments for deposit or collection in the ordinary course of business.  The amount of any Contingent Obligation shall be deemed to be an amount equal to the lesser of (x) the stated or determinable amount of the primary obligation in respect of which such Contingent Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith and (y) the stated amount of such Contingent Obligation.

“Contracts” shall mean all contracts between a Grantor and one or more additional parties.

“Copyrights” shall mean any and all copyrights and copyright registrations, including (i) all reissues, continuations, extensions or renewals thereof, (ii) all income, license fees, royalties, damages and payments now and hereafter due or payable under and with respect thereto, including payments under all licenses entered into in connection therewith and damages and payments for past, present or future infringements thereof, (iii) the right to sue for past, present and future infringements thereof and (iv) all rights corresponding thereto throughout the world.

“Credit Agreements” shall have the meaning set forth in the recitals hereto.

“Credit Bid Rights” shall mean each of the First-Lien Credit Bid Rights, the Second-Lien Credit Bid Rights and the ABL Credit Bid Rights, as the case may be.

“Defaulting ABL Secured Party” shall have the meaning set forth in Section 5.3(b).

“Defaulting First-Lien Secured Party” shall have the meaning set forth in Section 5.3(a).

“Deposit Account” shall mean a deposit account (as that term is defined in the UCC).

“Designated Oklahoma Property” shall mean that certain real property, owned by Advance Food Company, LLC and located at 202-204, 206 E. Pine Avenue, Enid, Oklahoma 73701.

“Deutsche Bank” shall have the meaning set forth in the recitals hereto.

“Discharge of ABL Obligations” shall mean, except to the extent otherwise provided in Section 4.4(h), the occurrence of all of the following:

(i)termination or expiration of all commitments to extend credit that would constitute ABL Priority Obligations (but excluding, for the avoidance of doubt, the termination of any ABL Bank Product Agreements, so long as the ABL Priority Obligations in respect thereof remain subject to the requirements of the succeeding clause (iv));

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(ii)payment in full in cash of the principal of and interest and premium (if any) on all ABL Priority Obligations (other than any undrawn letters of credit and any ABL Bank Product Obligations);

(iii)discharge or cash collateralization (at no more than 105% of the aggregate undrawn amount) of all outstanding letters of credit constituting ABL Priority Obligations or, if acceptable to ABL Agent in its sole discretion,  issuance of “back to back” letters of credit as support for such letters of credit in a manner satisfactory to the ABL Agent;

(iv)discharge or cash collateralization of all ABL Bank Product Obligations in the manner required pursuant to the terms of the ABL Credit Agreement (or, if acceptable to ABL Agent in its sole discretion, issuance of letters of credit to support such ABL Bank Product Obligations in a manner satisfactory to the ABL Agent); and

(v)payment in full in cash of all other ABL Priority Obligations that are outstanding and unpaid at the time the termination, expiration, discharge and/or cash collateralization set forth in clauses (i) through (iv) above have occurred (other than any obligations for taxes, costs, indemnifications and other contingent liabilities, in each case, in respect of which no claim or demand for payment has been made at such time).

“Discharge of First-Lien Obligations” shall mean, except to the extent otherwise provided in Section 3.4(h), the occurrence of all of the following:

(i)termination or expiration of all commitments to extend credit that would constitute First-Lien Priority Obligations, and termination or cash collateralization in a manner reasonably acceptable to the First-Lien Hedging Creditors party thereto of all First-Lien Secured Hedging Agreements (or, if acceptable to First-Lien Agent and each applicable First-Lien Hedging Creditor, in each case in such Person’s sole discretion, issuance of letters of credit to support such First-Lien Secured Hedging Agreements in a manner satisfactory to the First-Lien Administrative Agent and each applicable First-Lien Hedging Creditor);

(ii)payment in full in cash of the principal of and interest and premium (if any) on all First-Lien Priority Obligations; and

(iii)payment in full in cash of all other First-Lien Priority Obligations that are outstanding and unpaid at the time the termination, expiration and/or discharge set forth in clauses (i) and (ii) above have occurred (other than any obligations for taxes, costs, indemnifications and other contingent liabilities, in each case, in respect of which no claim or demand for payment has been made at such time).

“Discharge of Second-Lien Obligations” shall mean, except to the extent otherwise provided in Section 3.4(i), the occurrence of all of the following:

(i)termination or expiration of all commitments to extend credit that would constitute Second-Lien Priority Obligations;

(ii)payment in full in cash of the principal of and interest and premium (if any) on all Second-Lien Priority Obligations; and

(iii)payment in full in cash of all other Second-Lien Priority Obligations that are outstanding and unpaid at the time the termination, expiration and/or discharge set forth in

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clauses (i) and (ii) above have occurred (other than any obligations for taxes, costs, indemnifications and other contingent liabilities, in each case, in respect of which no claim or demand for payment has been made at such time).

“Domain Names” means all Internet domain names and associated uniform resource locator addresses.

“Domestic Subsidiary” of any Person shall mean any Subsidiary of such Person incorporated or organized in the United States or any State thereof or the District of Columbia.

“Eligible ABL Purchaser” shall have the meaning set forth in Section 5.3(a).

“Eligible First-Lien Purchaser” shall have the meaning set forth in Section 5.3(b).

“Equipment” shall mean (i) equipment (as that term is defined in the UCC), (ii) all machinery, manufacturing equipment, data processing equipment, computers, office equipment, furnishings, furniture, appliances, fixtures and tools (in each case, regardless of whether characterized as equipment under the UCC) and (iii) all accessions or additions thereto, all parts thereof, whether or not at any time of determination incorporated or installed therein or attached thereto, and all replacements therefor, wherever located, now or hereafter existing, including any fixtures.

“Excess ABL Obligations” means the sum of (a) the portion of the principal amount of the loans outstanding under the ABL Documents and the undrawn amount of all outstanding letters of credit issued under the ABL Documents that is in excess of the ABL Debt Cap, plus (b) the portion of interest and fees on account of such portion of the loans and letters of credit described in clause (a) of this definition.

“Excess First-Lien Obligations” means the sum of (a) the portion of the principal amount of the loans outstanding under the First-Lien Documents in excess of the First-Lien Debt Cap, plus (b) the portion of interest and fees on account of such portion of the loans described in clause (a) of this definition.

“Excess Second-Lien Obligations” means the sum of (a) the portion of the principal amount of the loans outstanding under the Second-Lien Documents in excess of the Second-Lien Debt Cap, plus (b) the portion of interest and fees on account of such portion of the loans described in clause (a) of this definition.

“Excluded Subsidiary” shall have the meaning provided in the First-Lien Credit Agreement (as in effect on the date hereof).

“First-Lien” shall mean any Lien created by the First-Lien Security Documents.

“First-Lien/ABL Notice” shall have the meaning set forth in Section 4.1(a)(i).

“First-Lien Administrative Agent” shall have the meaning set forth in the recitals hereto.

“First-Lien Agents” shall have the meaning set forth in the recitals hereto.

“First-Lien Collateral Priority Lien” shall have the meaning set forth in Section 3.4(a).

“First-Lien Credit Agreement” shall have the meaning set forth in the recitals hereto.

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“First-Lien Credit Bid Rights” shall mean, in respect of any order relating to a sale of assets constituting ABL Priority Collateral in any Insolvency or Liquidation Proceeding, that (i) such order grants the First-Lien Security Agent and the First-Lien Secured Parties (individually and in any combination) the right to bid at the sale of such assets and the right to offset its claims secured by First-Liens upon such assets against the purchase price of such assets if (A) the bid of the First-Lien Security Agent or such First-Lien Secured Parties is the highest bid or otherwise determined by a court to be the best offer at a sale, (B) the First-Lien Security Agent or such First-Lien Secured Parties provide evidence of financing adequate to close the sale and (C) the bid of the First-Lien Security Agent or such First-Lien Secured Parties includes a cash purchase price component payable at the closing of the sale in an amount that would be sufficient on the date of the closing of the sale, if such amount were applied to such payment on such date, to pay or satisfy in full in cash all unpaid ABL Priority Obligations (including the discharge or cash collateralization of all outstanding letters of credit constituting ABL Priority Obligations and all ABL Bank Product Obligations constituting ABL Priority Obligations but excluding unasserted contingent obligations in respect of indemnities and expense reimbursement) and to satisfy all Liens entitled to priority over the ABL Liens that attach to the proceeds of the sale, and such order requires such amount to be so applied and (ii) such order allows the claims of the First-Lien Security Agent and the First-Lien Secured Parties in such Insolvency or Liquidation Proceeding to the extent required for the grant of such rights.

“First-Lien Debt Cap” means [an amount equal to (a) $1,300,000,000, plus (b) such additional amounts that are permitted to be incurred by the Company under, or pursuant to, Section 2.14, Section 9.04(p) (to the extent such Indebtedness constitutes First-Lien Obligations or is secured by the Collateral on a pari passu basis with the First-Lien Obligations), Section 9.04(q) (to the extent such Indebtedness constitutes First-Lien Obligations or is secured by the Collateral on a pari passu basis with the First-Lien Obligations) and Section 9.04(t) of the First-Lien Credit Agreement (or any Permitted Refinancing thereof)].

“First-Lien DIP Financing” shall have the meaning set forth in Section 3.5(a).

“First-Lien Documents” shall mean (x) the First-Lien Credit Agreement and the other “Credit Documents” (as defined in the First-Lien Credit Agreement), (y) each First-Lien Secured Hedging Agreement and (z) each of the other agreements, documents and instruments providing for or evidencing any First-Lien Obligation (including any Permitted Refinancing of any First-Lien Obligation), together with any amendments, replacements, modifications, extensions, renewals or supplements to, or restatements of, any of the foregoing in accordance with the terms hereof and thereof (but excluding, for the avoidance of doubt, any documents agreement entered into in connection with an ABL DIP Financing or a First-Lien DIP Financing).

“First-Lien Hedging Creditor” shall mean any “Hedging Creditor” (as defined in the First-Lien Credit Agreement (as in effect on the date hereof))

“First-Lien Lenders” shall have the meaning set forth in the recitals to this Agreement.

“First-Lien Obligations” shall mean all obligations (including guaranty obligations) of every nature of each Grantor, from time to time owed to the First-Lien Secured Parties or any of them, under any First-Lien Document (including any First-Lien Document in respect of a Permitted Refinancing of any First-Lien Obligations and any [“Incremental Term Loans”] (as defined in the First-Lien Credit Agreement)), whether for principal, premium, interest (including interest which, but for the filing of a petition in bankruptcy with respect to such Person, would have accrued on any First-Lien Obligation, at the rate provided in the respective documentation whether or not a claim is allowed against such Person for such interest in the related bankruptcy proceeding) (including any Permitted Refinancing of any First-

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Lien Obligations (other than any Permitted Refinancing designated in writing by the Company in a notice to the Secured Parties as not being secured on a First Priority basis)), payments for early termination of First-Lien Secured Hedging Agreements, fees, expenses, indemnification or otherwise and including any obligations in respect of Additional Debt which are designated as “First-Lien Obligations” pursuant to Section 8.3(b) hereof.

“First-Lien Permitted Liens” shall mean the “Permitted Liens” under, and as defined in, the First-Lien Credit Agreement as in effect on the date hereof.

“First-Lien Priority Obligations” means all First-Lien Obligations exclusive of the Excess First-Lien Obligations, which Excess First-Lien Obligations shall be excluded from (and shall not constitute) First-Lien Priority Obligations.

“First-Lien Secured Hedging Agreement” shall mean any Secured Hedging Agreement (as such term is (and the component definitions as used therein are) defined in the First-Lien Credit Agreement (as in effect on the date hereof)).

“First-Lien Secured Parties” shall mean the lenders, agents and arrangers under the First-Lien Credit Agreement and the First-Lien Hedging Creditors and shall include all former lenders, agents and arrangers under the First-Lien Credit Agreement and First-Lien Hedging Creditors to the extent that any First-Lien Obligations owing to such Persons were incurred while such Persons were lenders, agents or arrangers under the First-Lien Credit Agreement or First-Lien Hedging Creditors and such First-Lien Obligations have not been paid or satisfied in full and all new First-Lien Secured Parties to the extent set forth in Section 3.4(h).

“First-Lien Security Agent” shall have the meaning set forth in the recitals hereto and includes any New First-Lien Agent to the extent set forth in Section 3.4(h).

“First-Lien Security Documents” shall mean the “Security Documents” (as defined in the First-Lien Credit Agreement) and any other agreement, document or instrument pursuant to which a Lien is granted securing any First-Lien Obligations (including any Permitted Refinancing of any First-Lien Obligation) or under which rights or remedies with respect to such Liens are governed, together with any amendments, replacements, modifications, extensions, renewals or supplements to, or restatements of, any of the foregoing in accordance herewith.

“First-Lien Standstill Period” shall have the meaning set forth in Section 4.1(a).

“First Priority” shall mean:

(i)with respect to any Lien purported to be created on any ABL Priority Collateral pursuant to any ABL Security Document, that such Lien is prior in right to any other Lien thereon, other than any ABL Permitted Liens (excluding ABL Permitted Liens of the type described in clause (q) of the definition of “Permitted Lien” of the ABL Credit Agreement as in effect on the date hereof) applicable to such ABL Priority Collateral which have priority over the respective Liens on such ABL Priority Collateral created pursuant to the relevant ABL Security Document; and

(ii)with respect to any Lien purported to be created on any Term Loan Priority Collateral pursuant to any First-Lien Security Document, that such Lien is prior in right to any other Lien thereon, other than any First-Lien Permitted Liens (excluding First-Lien Permitted Liens of the type described in clause (y) of Section 9.01(d) of the First-Lien Credit Agreement as

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in effect on the date hereof) applicable to such Term Loan Priority Collateral which have priority over the respective Liens on such Term Loan Priority Collateral created pursuant to the relevant First-Lien Security Document.

“Fixtures” shall mean all fixtures (as that term is defined in Article 9 of the UCC).

“GAAP” shall mean generally accepted accounting principles in the United States of America as in effect from time to time.

“General Intangibles” shall mean general intangibles (as that term is defined in the UCC) and includes payment intangibles, software, contract rights, rights to payment, rights under Interest Rate Protection Agreements or Other Hedging Agreements (including the right to receive payment on account of the termination (voluntarily or involuntarily) of any Interest Rate Protection Agreements or Other Hedging Agreement), rights arising under common law, statutes, or regulations, choses or things in action, goodwill (including the goodwill associated with any Trademark), Intellectual Property, purchase orders, customer lists, monies due or recoverable from pension funds, route lists, rights to payment and other rights under any royalty or licensing agreements, including Intellectual Property Licenses, infringement claims, computer programs, information contained on computer disks or tapes, software, literature, reports, catalogs, pension plan refunds, pension plan refund claims, insurance premium rebates, tax refunds, and tax refund claims, interests in a partnership or limited liability company which do not constitute a security under Article 8 of the UCC and any other personal property other than Commercial Tort Claims, money, Accounts, Chattel Paper, Deposit Accounts, goods, Investment Related Property, Negotiable Collateral, and oil, gas or other minerals before extraction.

“Grantors” shall mean Parent, Holdings, the Company and each of the Company’s Wholly-Owned Subsidiaries that is a Domestic Subsidiary (other than Excluded Subsidiaries) that have executed and delivered, or may, from time to time, hereafter execute and deliver, an ABL Security Document or a Term Loan Security Document.

“Holdings” shall have the meaning set forth in the introductory paragraph hereto.

“Indebtedness” shall mean, as to any Person, without duplication, (i) all indebtedness of such Person for borrowed money or for the deferred purchase price of property or services, (ii) the maximum amount available to be drawn or paid under all letters of credit, bankers’ acceptances, bank guaranties surety and appeal bonds and similar obligations issued for the account of such Person, and all unpaid drawings and unreimbursed payments in respect of such letters of credit, bankers’ acceptances, bank guaranties, surety and appeal bonds and similar obligations, (iii) all indebtedness of the types described in clause (i), (ii), (iv), (v), (vi) or (vii) of this definition secured by any Lien on any property owned by such Person, whether or not such indebtedness has been assumed by such Person (provided that, if the Person has not assumed or otherwise become liable in respect of such indebtedness, such indebtedness shall be deemed to be in an amount equal to the fair market value of the property to which such Lien relates as determined in good faith by such Person), (iv) all Capitalized Lease Obligations of such Person, (v) all obligations of such Person to pay a specified purchase price for goods or services, whether or not delivered or accepted, i.e., take-or-pay and similar obligations, (vi) all Contingent Obligations of such Person, (vii) all obligations under any Interest Rate Protection Agreement, any Other Hedging Agreement or under any similar type of agreement and (viii) in the case of Indebtedness under the ABL Documents, any ABL Bank Product Obligations.

“Insolvency or Liquidation Proceeding” shall mean any of the following:  (i) the filing by any Grantor of a voluntary petition in bankruptcy under any provision of any Bankruptcy Law (including, without limitation, the Bankruptcy Code) or a petition to take advantage of any receivership or insolvency

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laws, including, without limitation, any petition seeking the dissolution, winding up, total or partial liquidation, reorganization, composition, arrangement, adjustment or readjustment or other relief of such Grantor, such Grantor’s debts or such Grantor’s assets or the appointment of a trustee, receiver, liquidator, custodian or similar official for such Grantor or a material part of such Grantor’s property; (ii) the appointment of a receiver, liquidator, trustee, custodian or other similar official for such Grantor or all or a material part of such Grantor’s assets; (iii) the filing of any petition against such Grantor under any Bankruptcy Law (including, without limitation, the Bankruptcy Code) or other receivership or insolvency law, including, without limitation, any petition seeking the dissolution, winding up, total or partial liquidation, reorganization, composition, arrangement, adjustment or readjustment or other relief of such Grantor, such Grantor’s debts or such Grantor’s assets or the appointment of a trustee, receiver, liquidator, custodian or similar official for such Grantor or a material part of such Grantor’s property; or (iv) the general assignment by such Grantor for the benefit of creditors or any other marshalling of the assets and liabilities of such Grantor.

“Insurance” shall mean (i) all insurance policies covering any or all of the Collateral (regardless of whether the ABL Agent, the First-Lien Security Agent or the Second-Lien Security Agent is the loss payee or additional insured thereof) and (ii) any key man life insurance policies.

“Intellectual Property” shall mean any and all Intellectual Property Licenses, Patents, Copyrights, Trademarks, Domain Names and all confidential and proprietary information, including trade secrets, know-how, inventions (whether or not patentable), algorithms, software programs (including source code and object code), processes, product designs, industrial designs, blueprints, drawings, data, customer lists, specifications, documentations, programming materials, reports, catalogs, literature and any other forms of technology of any kind.

“Intellectual Property Licenses” shall mean license agreements granting rights under or interests in any patent, trademark, copyright or other intellectual property, including software license agreements with any other party, whether the applicable Grantor is a licensee or licensor under any such license agreement (but excluding any off-the-shelf software license agreement).

“Intercreditor Agreement Acknowledgement” shall mean, collectively, the initial acknowledgement of this Agreement delivered by each of the Grantors on the date hereof, and each other acknowledgement of this Agreement by a Grantor made following the date hereof in substantially the form of Exhibit B hereto.

“Intercreditor Agreement Joinder” shall mean an agreement substantially in the form of Exhibit A hereto.

“Interest Rate Protection Agreement” shall mean any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedging agreement, interest rate floor agreement or other similar agreement or arrangement.

“Inventory” shall mean inventory (as that term is defined in the UCC).

“Investment Related Property” shall mean (i) any and all investment property (as that term is defined in the UCC), and (ii) any and all of the following (regardless of whether classified as investment property under the UCC):  all Pledged Interests, Pledged Operating Agreements, and Pledged Partnership Agreements.

“Lien” shall mean any mortgage, deed of trust, pledge, hypothecation, assignment, deposit arrangement, security interest, encumbrance, charge, lien (statutory or other), charge, preference,

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priority or other security agreement of any kind or nature whatsoever (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement, any financing or similar statement or notice filed under the UCC or any similar recording or notice statute or other law, and any lease having substantially the same effect as the foregoing).

“Maximum Exposure Amount” shall mean (a) with respect to any ABL DIP Financing, the sum of:  (i) the portion of the ABL Debt Cap outstanding and/or committed immediately prior to obtaining such ABL DIP Financing and (ii) $250,000,000, and (b) with respect to any First-Lien DIP Financing, the sum of:  (i) the portion of the First-Lien Debt Cap outstanding and/or committed immediately prior to obtaining such First-Lien DIP Financing and (ii) $250,000,000.

“Money” shall mean money (as that term is defined in the UCC).

“MSSF” shall have the meaning set forth in the introductory paragraph hereof.

“Negotiable Collateral” shall mean letters of credit, letter-of-credit rights, instruments, promissory notes, drafts and documents (as each such term is defined in the UCC).

“New ABL Agent” shall have the meaning set forth in Section 4.4(h).

“New First-Lien Agent” shall have the meaning set forth in Section 3.4(h).

“New Second-Lien Agent” shall have the meaning set forth in Section 3.4(i).

“Other Hedging Agreements” shall mean any foreign exchange contracts, currency swap agreements, commodity agreements or other similar agreements or arrangements designed to protect against fluctuations in currency values or commodity values.

“Original Intercreditor Agreement” shall have the meaning set forth in the recitals hereto.

“Parent” shall have the meaning set forth in the introductory paragraph hereof.

“Patents” shall mean patents and patent applications, including (i) all renewals, continuations, divisionals, continuations-in-part, reissues and examinations thereof, (ii) all income, royalties, damages and payments now and hereafter due or payable under and with respect thereto, including payments under all licenses entered into in connection therewith and damages and payments for past, present or future infringements thereof, (iii) the right to sue for past, present and future infringements thereof, and (iv) all rights corresponding thereto throughout the world.

“Permitted Delay” shall mean any delay or postponement of compliance with any Grantor’s obligation to take, facilitate or permit any steps necessary to establish or perfect a security interest, or to establish a certain priority with respect to a security interest, in any Collateral, pursuant to any grace period or post-closing compliance period under a Security Document or a Credit Agreement, including any permitted extensions thereof approved by the applicable Agent party to such Security Document or a Credit Agreement.

“Permitted Refinancing” shall mean, with respect to any Indebtedness under the First-Lien Documents, the Second-Lien Documents or the ABL Documents, the Refinancing of such Indebtedness (“Refinancing Indebtedness”) in accordance with the requirements of Section 5.1(a), 5.1(b), or 5.1(c), as the case may be.

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“Person” shall mean any individual, partnership, joint venture, firm, corporation, limited liability company, association, trust or other enterprise or any government or political subdivision or any agency, department or instrumentality thereof.

“Pledged ABL Priority Collateral” shall have the meaning set forth in Section 4.4(f).

“Pledged Debt” shall mean all Indebtedness owed to a Grantor issued by the obligors named therein, the instruments evidencing such Indebtedness, and all interest, cash, instruments and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such Indebtedness.

“Pledged Interests” shall mean all of each Grantor’s right, title and interest in and to all of the Capital Stock now or hereafter owned by such Grantor, regardless of class or designation, and all substitutions therefor and replacements thereof, all proceeds thereof and all rights relating thereto, also including any certificates representing the Capital Stock, the right to receive any certificates representing any of the Capital Stock, all warrants, options, share appreciation rights and other rights, contractual or otherwise, in respect thereof and the right to receive all dividends, distributions of income, profits, surplus, or other compensation by way of income or liquidating distributions, in cash or in kind, and all cash, instruments, and other property from time to time received, receivable, or otherwise distributed in respect of or in addition to, in substitution of, on account of, or in exchange for any or all of the foregoing.

“Pledged Operating Agreements” shall mean all of each Grantor’s rights, powers, and remedies under any limited liability company operating agreements of each of the Grantors that are limited liability companies.

“Pledged Partnership Agreements” shall mean all of each Grantor’s rights, powers, and remedies under the partnership agreements of each of the Grantors that are partnerships.

“Pledged Term Loan Priority Collateral” shall have the meaning set forth in Section 3.4(f).

“Prior Intercreditor Agreement” shall have the meaning set forth in the recitals hereto.

“Proceeds” shall mean all of the proceeds (as that term is defined in the UCC) and products, whether tangible or intangible, of any of the foregoing, including proceeds of insurance or Commercial Tort Claims covering or relating to any or all of the foregoing, and any and all Accounts, Books, Chattel Paper, Deposit Accounts, Equipment, General Intangibles, Inventory, Investment Related Property, Negotiable Collateral, Supporting Obligations, Money, or other tangible or intangible property resulting from the sale, lease, license, exchange, collection, or other disposition of any of the foregoing, whatever is collected on, or distributed on account of any of the foregoing, any and all rights arising out of the foregoing, the proceeds of any award in condemnation with respect to any of the foregoing, any rebates or refunds, whether for taxes or otherwise, and all proceeds of any such proceeds, or any portion thereof or interest therein, and the proceeds thereof, claims arising out of the loss, non-conformity, or interference with the use of, defects, or infringement of rights in, or damage to, any of the foregoing, and all proceeds of any loss of, damage to, or destruction of the above, whether insured or not insured, and, to the extent not otherwise included, any indemnity, warranty, insurance, or guaranty payable by reason of loss or non-conformity of, defects or infringement of rights in, or damage to, or otherwise with respect to any of the foregoing.  Without limiting the generality of the foregoing, the term “Proceeds” includes whatever is receivable or received when Investment Property or proceeds are sold, exchanged, collected, or otherwise disposed of, whether such disposition is voluntary or involuntary, and includes proceeds of

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any indemnity or guaranty payable to any Grantor, the ABL Agent, the First-Lien Security Agent or the Second-Lien Security Agent from time to time with respect to any of the Investment Related Property.

“Record” shall mean information that is inscribed on a tangible medium or which is stored in an electronic or other medium that is retrievable in perceivable form.

“Recovery” shall have the meaning set forth in Section 8.17.

“Refinance” shall mean, in respect of any Indebtedness, to refinance, extend, renew, retire, defease, amend, modify, supplement, restructure, replace, refund or repay, or to issue other Indebtedness, in exchange or replacement for such Indebtedness in whole or in part, whether with the same or holders of indebtedness, arrangers, trustees and/or agents.  “Refinanced” and “Refinancing” shall have correlative meanings.

“SEC” shall mean the United States Securities and Exchange Commission and any successor thereto.

“Second-Lien” shall mean any Lien created by the Second-Lien Security Documents.

“Second-Lien/ABL Notice” shall have the meaning set forth in Section 4.1(a)(i).

“Second-Lien ABL Priority Collateral Standstill Period” shall have the meaning set forth in Section 4.1(a).

“Second-Lien Administrative Agent” shall have the meaning set forth in the recitals hereto.

“Second-Lien Agents” shall have the meaning set forth in the recitals hereto.

“Second-Lien Amendment Agreement” shall have the meaning set forth in the recitals hereto.

“Second-Lien Collateral Priority Lien” shall have the meaning set forth in Section 3.4(b).

“Second-Lien Credit Agreement” shall have the meaning set forth in the recitals hereto.

“Second-Lien Credit Bid Rights” shall mean (a) in respect of any order relating to a sale of assets constituting ABL Priority Collateral in any Insolvency or Liquidation Proceeding, that (i) such order grants the Second-Lien Security Agent and the Second-Lien Secured Parties (individually and in any combination) the right to bid at the sale of such assets and the right to offset its claims secured by Second-Lien upon such assets against the purchase price of such assets if (A) the bid of the Second-Lien Security Agent or such Second-Lien Secured Parties is the highest bid or otherwise determined by a court to be the best offer at a sale, (B) the Second-Lien Security Agent or such Second-Lien Secured Parties provide evidence of financing adequate to close the sale and (C) the bid of the Second-Lien Security Agent or such Second-Lien Secured Parties includes a cash purchase price component payable at the closing of the sale in an amount that would be sufficient on the date of the closing of the sale, if such amount were applied to such payment on such date, to pay or satisfy in full in cash all unpaid ABL Priority Obligations and First-Lien Priority Obligations (including, in the case of the ABL Priority Obligations, the discharge or cash collateralization of all outstanding letters of credit constituting ABL Priority Obligations and all ABL Bank Product Obligations constituting ABL Priority Obligations, but excluding, in the case of each of the ABL Priority Obligations and the First-Lien Obligations, unasserted

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contingent obligations in respect of indemnities and expense reimbursement) and to satisfy all Liens entitled to priority over the ABL Liens and First-Liens that attach to the proceeds of the sale, and such order requires such amount to be so applied and (ii) such order allows the claims of the Second-Lien Security Agent and the Second-Lien Secured Parties in such Insolvency or Liquidation Proceeding to the extent required for the grant of such rights, and (b) in respect of any order relating to a sale of assets constituting Term Loan Priority Collateral in any Insolvency or Liquidation Proceeding, that (i) such order grants the Second-Lien Security Agent and the Second-Lien Secured Parties (individually and in any combination) the right to bid at the sale of such assets and the right to offset its claims secured by Second-Liens upon such assets against the purchase price of such assets if (A) the bid of the Second-Lien Security Agent or such Second-Lien Secured Parties is the highest bid or otherwise determined by a court to be the best offer at a sale, (B) the Second-Lien Security Agent or such Second-Lien Secured Parties provide evidence of financing adequate to close the sale and (C) the bid of the Second-Lien Security Agent or such Second-Lien Secured Parties includes a cash purchase price component payable at the closing of the sale in an amount that would be sufficient on the date of the closing of the sale, if such amount were applied to such payment on such date, to pay all unpaid First-Lien Priority Obligations (except unasserted contingent obligations in respect of indemnities and expense reimbursement) and to satisfy all Liens entitled to priority over the First-Liens that attach to the proceeds of the sale, and such order requires such amount to be so applied and (ii) such order allows the claims of the Second-Lien Security Agent and the Second-Lien Secured Parties in such Insolvency or Liquidation Proceeding to the extent required for the grant of such rights.

“Second-Lien Debt Cap” means [an amount equal to (a) $[      ], plus (b)  such additional amounts that are permitted to be incurred by the Company under, or pursuant to, Section 2.14 or Section 9.04(l), Section 9.04(p) (to the extent such Indebtedness is secured by the Collateral on a pari passu basis with the Second-Lien Obligations), Section 9.04(q) (to the extent such Indebtedness is secured by the Collateral on a pari passu basis with the Second-Lien Obligations) and Section 9.04(t), of the Second-Lien Credit Agreement (or any Permitted Refinancing thereof)].

“Second-Lien Documents” shall mean (x) the Second-Lien Credit Agreement and the other “Credit Documents” (as defined in the Second-Lien Credit Agreement) and (y) each of the other agreements, documents and instruments providing for or evidencing any Second-Lien Obligation (including any Permitted Refinancing of any Second-Lien Obligation), together with any amendments, replacements, modifications, extensions, renewals or supplements to, or restatements of, any of the foregoing in accordance with the terms hereof and thereof (but excluding, for the avoidance of doubt, any documents agreement entered into in connection with an ABL DIP Financing or a First-Lien DIP Financing).

“Second-Lien/First-Lien Notice” shall have the meaning set forth in Section 4.2(a)(i).

“Second-Lien Lenders” shall have the meaning set forth in the recitals to this Agreement.

“Second-Lien Notice” shall have the meaning set forth in Section 3.1(a)(i).

“Second-Lien Obligations” shall mean all obligations (including guaranty obligations) of every nature of each Grantor, from time to time owed to the Second-Lien Secured Parties or any of them, under any Second-Lien Document (including any Second-Lien Document in respect of a Permitted Refinancing of any Second-Lien Obligations and any [“Incremental Term Loans”] (as defined in the Second-Lien Credit Agreement)), whether for principal, premium, interest (including interest which, but for the filing of a petition in bankruptcy with respect to such Person, would have accrued on any Second-Lien Obligation, at the rate provided in the respective documentation, whether or not a claim is allowed against such Person for such interest in the related bankruptcy proceeding) (including any Permitted

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Refinancing of any Second-Lien Obligations (other than any Permitted Refinancing designated in writing by the Company in a notice to the Secured Parties as not being secured on a Second Priority basis)), fees, expenses, indemnification or otherwise and including any obligations in respect of Additional Debt which are designated as “Second-Lien Obligations” pursuant to Section 8.3(b) hereof.

“Second-Lien Permitted Liens” shall mean the “Permitted Liens” under, and as defined in, the Second-Lien Credit Agreement as in effect on the date hereof.

“Second-Lien Priority Obligations” means all Second-Lien Obligations exclusive of the Excess Second-Lien Obligations, which Excess Second-Lien Obligations shall be excluded from (and shall not constitute) Second-Lien Priority Obligations.

“Second-Lien Secured Parties” shall mean (a) the lenders, agents and arrangers under the Second-Lien Credit Agreement and shall include all former lenders, agents and arrangers under the Second-Lien Credit Agreement to the extent that any Second-Lien Obligations owing to such Persons were incurred while such Persons were lenders, agents or arrangers under the Second-Lien Credit Agreement and such Second-Lien Obligations have not been paid or satisfied in full and (b) all new Second-Lien Secured Parties to the extent set forth in Section 3.4(i).

“Second-Lien Security Agent” shall have the meaning set forth in the recitals hereto and includes any New Second-Lien Agent to the extent set forth in Section 3.4(i).

“Second-Lien Security Documents” shall mean the “Security Documents” (as defined in the Second-Lien Credit Agreement) and any other agreement, document or instrument pursuant to which a Lien is granted securing any Second-Lien Obligations (including any Permitted Refinancing of any Second-Lien Obligation) or under which rights or remedies with respect to such Liens are governed, together with any amendments, replacements, modifications, extensions, renewals or supplements to, or restatements of, any of the foregoing in accordance herewith.

“Second-Lien Standstill Period” shall have the meaning set forth in Section 3.1(a).

“Second-Lien/First-Lien ABL Priority Collateral Standstill Period” shall have the meaning given in 4.2(a).

“Second Priority” shall mean:

(i)with respect to any Lien purported to be created on any Term Loan Priority Collateral pursuant to the Second-Lien Security Documents, that such Lien is prior in right to any other Lien thereon, other than (x) Liens of the type permitted pursuant to clause (z) of Section 9.01(d) of the Second-Lien Credit Agreement as in effect on the date hereof and (y) First-Lien Permitted Liens of the type permitted to be prior to the Liens on the Term Loan Priority Collateral securing the First-Lien Obligations in accordance with clause (ii) of the definition “First Priority” contained herein; and

(ii)with respect to any Lien purported to be created on any ABL Priority Collateral pursuant to the First-Lien Security Documents, that such Lien is prior in right to any other Lien thereon, other than (x) Liens of the type permitted pursuant to clause (y) of Section 9.01(d) of the First-Lien Credit Agreement as in effect on the date hereof and (y) ABL Permitted Liens of the type permitted to be prior to the Liens on the ABL Priority Collateral securing the ABL Obligations in accordance with clause (i) of the definition “First Priority” contained herein.

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“Secured Parties” shall mean, collectively, the ABL Secured Parties, the First-Lien Secured Parties and the Second-Lien Secured Parties.

“Securities” shall mean all “securities” as such term is defined in Article 8 of the UCC as in effect on the date hereof, any stock, shares, partnership interests, voting trust certificates, certificates of interest or participation in any profit sharing agreement or arrangement, options, warrants, bonds, debentures, notes, or other evidences of indebtedness, secured or unsecured, convertible, subordinated or otherwise, or in general any instruments commonly known as “securities” or any certificates of interest, shares or participations in temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire, any of the foregoing.

“Securities Accounts” shall mean all securities accounts (as that term is defined in Article 8 of the UCC).

“Securities Entitlements” shall mean all securities entitlements (as that term is defined in Article 8 of the UCC).

“Security Agents” shall have the meaning set forth in the recitals hereto.

“Security Document” shall mean any ABL Security Document or any Term Loan Security Document.

“Subsidiary” shall mean, with respect to any Person, any corporation, partnership, limited liability company, association, joint venture or other business entity of which more than 50% of the total voting power of shares of stock or other ownership interests entitled (without regard to the occurrence of any contingency) to vote in the election of the Person or Persons (whether directors, managers, trustees or other Persons performing similar functions) having the power to direct or cause the direction of the management and policies thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof; provided, in determining the percentage of ownership interests of any Person controlled by another Person, no ownership interest in the nature of a “qualifying share” of the former Person shall be deemed to be outstanding.

“Supporting Obligations” shall mean supporting obligations (as such term is defined in the UCC) and includes letters of credit and guaranties issued in support of Accounts, Chattel Paper, documents, General Intangibles, instruments or Investment Related Property.

“Term Loan Priority Collateral” shall mean all of the following Collateral and all interests of each Grantor in the following Collateral, in each case whether now owned or existing or hereafter acquired or arising and wherever located, including (1) all rights of each Grantor to receive moneys due and to become due under or pursuant to the following, (2) all rights of each Grantor to receive return of any premiums for or proceeds of any insurance, indemnity, warranty or guaranty with respect to the following or to receive condemnation proceeds with respect to the following, (3) all claims of each Grantor for damages arising out of or for breach of or default under any of the following, and (4) all rights of each Grantor to terminate, amend, supplement, modify or waive performance under any of the following, to perform thereunder and to compel performance and otherwise exercise all remedies thereunder:

(i)the Asset Sale Proceeds Account;

(ii)all Equipment;

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(iii)all Fixtures;

(iv)all General Intangibles, including, without limitation, Contracts (in each case other than General Intangibles evidencing, secured by, or governing ABL Priority Collateral, including, without limitation, ABL Bank Product Agreements);

(v)all Negotiable Collateral (other than Negotiable Collateral evidencing or governing or attached or related to (to the extent so attached or related) ABL Priority Collateral);

(vi)without duplication, all Investment Related Property, all Pledged Debt, all Securities, all Security Entitlements and all Securities Accounts (in each case, other than any Collateral specifically listed as ABL Priority Collateral and other than any Supporting Obligations supporting ABL Priority Collateral);

(vii)all Intellectual Property;

(viii)except to the extent constituting, or relating to, ABL Priority Collateral, all Commercial Tort Claims;

(ix)all real property (including leasehold interests) on which the Grantors are required to provide a Lien to the First-Lien Secured Parties pursuant to the First-Lien Credit Agreement and/or Second-Lien Secured Parties pursuant to the Second-Lien Credit Agreement (in each case, regardless of whether such Lien has actually been provided) and any title insurance with respect to such real property (other than any title insurance actually obtained by the ABL Agent solely in respect of real property acquired after the date hereof and so long as such title insurance is not subject to pro tanto coverage) and the proceeds thereof;

(x)except to the extent constituting, or relating to, the ABL Priority Collateral, all other personal property (whether tangible or intangible) of such Grantor;

(xi)to the extent constituting, or relating to, any of the items referred to in the preceding clauses (i) through (x), all Insurance; provided that to the extent any of the foregoing also relates to ABL Priority Collateral only that portion related to the items referred to in the preceding clauses (i) through (x) as being included in the Term Loan Priority Collateral shall be included in the Term Loan Priority Collateral;

(xii)to the extent relating to any of the items referred to in the preceding clauses (i) through (xi), all Supporting Obligations; provided that to the extent any of the foregoing also relates to ABL Priority Collateral only that portion related to the items referred to in the preceding clauses (i) through (xi) as being included in the Term Loan Priority Collateral shall be included in the Term Loan Priority Collateral;

(xiii)all Books, Records and Collateral Records relating to the foregoing (including without limitation all books, databases, customer lists, engineer drawings, Records and Collateral Records, whether tangible or electronic, which contain any information relating to any of the foregoing); provided that to the extent any of such Books, Records and Collateral Records also relates to ABL Priority Collateral only that portion related to the items referred to in the preceding clauses (i) through (xii) as being included in the Term Loan Priority Collateral shall be included in the Term Loan Priority Collateral; and

(xiv)all Cash Proceeds and, solely to the extent not constituting ABL Priority

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Collateral, non-Cash Proceeds, products, accessions, rents and profits of or in respect of any of the foregoing and all collateral security, guarantees and other Collateral Support given by any Person with respect to any of the foregoing;

provided, however, that (i) if Collateral of any type is received in exchange for ABL Priority Collateral in accordance with the terms of the ABL Credit Agreement, such Collateral will be treated as ABL Priority Collateral and (ii) if Collateral of any type is received in exchange for Term Loan Priority Collateral in accordance with the terms of the First-Lien Credit Agreement or the Second-Lien Credit Agreement, such Collateral will be treated as Term Loan Priority Collateral.

“Term Loan Priority Collateral Enforcement Action Notice” shall have the meaning set forth in Section 6.3(a).

“Term Loan Priority Collateral Enforcement Actions” shall have the meaning set forth in Section 6.3(a).

“Term Loan Priority Obligations” shall mean, collectively, the First-Lien Priority Obligations and the Second-Lien Priority Obligations.

“Term Loan Security Documents” shall mean each of the First-Lien Security Documents and the Second-Lien Security Documents.

“Third Priority” shall mean:

(i)with respect to any Lien purported to be created on any Term Loan Priority Collateral pursuant to the ABL Security Documents, that such Lien is prior in right to any other Lien thereon, other than (x) Liens of the type permitted pursuant to clause (q) of the definition of Permitted Liens in the ABL Credit Agreement as in effect on the date hereof, (y) First-Lien Permitted Liens of the type permitted to be prior to the Liens on the Term Loan Priority Collateral in accordance with clause (ii) of the definition “First Priority” contained herein and (z) Second-Lien Permitted Liens of the type permitted to be prior to the Liens on the Term Loan Priority Collateral in accordance with clause (i) of the definition “Second Priority” contained herein; and

(ii)with respect to any Lien purported to be created on any ABL Priority Collateral pursuant to the Second-Lien Security Documents, that such Lien is prior in right to any other Lien thereon, other than (x) Liens of the type permitted pursuant to clauses (y) and (z) of Section 9.01(d) of the Second-Lien Credit Agreement as in effect on the date hereof, (y) ABL Permitted Liens of the type permitted to be prior to the Liens on the ABL Priority Collateral in accordance with clause (i) of the definition “First Priority” contained herein and (z) First-Lien Permitted Liens of the type permitted to be prior to the Liens on the Term Loan Priority Collateral in accordance with clause (ii) of the definition “First Priority” contained herein.

“Trademarks” shall mean any and all trademarks, trade names, service marks, trade dress, logos, slogans, designs or fictitious business names, registered trademarks, trademark applications, service marks, registered service marks and service mark applications, including (i) all renewals thereof, (ii) all income, royalties, damages and payments now and hereafter due or payable under and with respect thereto, including payments under all licenses entered into in connection therewith and damages and payments for past or future infringements or dilutions thereof, (iii) the right to sue for past, present and future infringements and dilutions thereof, (iv) the goodwill of each Grantor’s business symbolized by the foregoing or connected therewith, and (v) all rights corresponding thereto throughout the world.

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“UCC” shall mean the New York Uniform Commercial Code, as in effect from time to time; provided, however, that in the event that, by reason of mandatory provisions of law, any or all of the attachment, perfection, priority, or remedies with respect to any First-Lien, Second-Lien or ABL Lien on any Collateral is governed by the Uniform Commercial Code as enacted and in effect in a jurisdiction other than the State of New York, the term “UCC” shall mean the Uniform Commercial Code as enacted and in effect in such other jurisdiction solely for purposes of the provisions thereof relating to such attachment, perfection, priority, or remedies.

“URL” shall mean “uniform resource locator,” an internet web address.

“WFCF” shall have the meaning set forth in the introductory paragraph hereto.

“Wholly-Owned Subsidiary” shall mean, as to any Person, (a) any corporation 100% of whose capital stock is at the time owned by such Person and/or one or more Wholly-Owned Subsidiaries of such Person and (b) any partnership, limited liability company, association, joint venture or other entity in which such Person and/or one or more Wholly-Owned Subsidiaries of such Person has a 100% equity interest at such time (other than, in the case of a Subsidiary of the Company organized under the laws of a jurisdiction other than the United States or any state thereof, with respect to the preceding clauses (a) and (b), directors’ qualifying shares and/or other nominal amounts of shares required to be held by Persons other than the Company and its Subsidiaries under applicable law).

1.2Terms Generally.  The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.  The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”.  The word “will” shall be construed to have the same meaning and effect as the word “shall”.  Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified to the extent not prohibited hereby, (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision of this Agreement, (d) all references herein to Exhibits or Sections shall be construed to refer to Exhibits or Sections of this Agreement, (e) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights, (f) terms defined in the UCC but not otherwise defined herein shall have the same meanings herein as are assigned thereto in the UCC, (g) reference to any law means such law as amended, modified, codified, replaced or re-enacted, in whole or in part, and in effect on the date hereof, including rules, regulations, enforcement procedures and any interpretations promulgated thereunder, and (h) references to Sections or clauses shall refer to those portions of this Agreement, and any references to a clause shall, unless otherwise identified, refer to the appropriate clause within the same Section in which such reference occurs.  References to specific sections of the First-Lien Credit Agreement or the Second-Lien Credit Agreement contained in the definitions of First-Lien Debt Cap or Second-Lien Debt Cap shall refer to such sections as in effect on the date hereof, without giving effect to subsequent amendments thereof; provided that the foregoing will not prevent (and the definitions of First-Lien Debt Cap and Second-Lien Debt Cap will give effect to) amendments or modifications to the component defined terms and financial definitions utilized in such sections provided that such amendments or modifications are not entered into solely for the purpose of modifying such sections in order to increase the First-Lien Debt Cap or Second-Lien Debt Cap (and no other purpose).

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Section 2.  Lien Priorities.

2.1Relative Priorities.

(a) (i)  Notwithstanding (A) the time, manner, order or method of grant, creation, attachment or perfection of any Liens securing the ABL Obligations granted on the Collateral, or of any Liens securing either the First-Lien Obligations or the Second-Lien Obligations granted on the Collateral, (B) the validity or enforceability (or lack thereof, including without limitation, due to an absence or failure of, or delay (including any Permitted Delay) in, the execution and filing of a mortgage with respect to real property, the execution and delivery of a control agreement, or otherwise obtaining perfection or priority) of the security interests and Liens granted in favor of any Security Agent or any Secured Party on any of the Collateral, (C) the date on which any ABL Obligations, any First-Lien Obligations or any Second-Lien Obligations are incurred or extended, (D) any provision of the UCC or any other applicable law, including any rule for determining priority thereunder or under any other law or rule governing the relative priorities of secured creditors, including with respect to real property or fixtures, (E) any provision set forth in any ABL Document or any First-Lien Document or any Second-Lien Document (in each case, other than this Agreement), (F) the possession or control by any Security Agent or any Secured Party or any bailee of all or any part of any Collateral as of the date hereof or otherwise, (G) any failure by any Security Agent or any Secured Party to perfect its security interests in any of the Collateral, or (H) any other circumstance whatsoever, each Security Agent, on behalf of itself and its respective Secured Parties, hereby agrees that:

(1)any Lien on the Term Loan Priority Collateral securing any First-Lien Obligations or Second-Lien Obligations, as the case may be, now or hereafter held by or on behalf of the First-Lien Security Agent or any First-Lien Secured Parties or any agent or trustee therefor, or by or on behalf of the Second-Lien Security Agent or any Second-Lien Secured Parties or any agent or trustee therefor, in each case, regardless of how acquired, whether by grant, possession, statute, operation of law, subrogation or otherwise, shall be senior in all respects and prior to any Lien on the Term Loan Priority Collateral securing any of the ABL Obligations;

(2)any Lien on the Term Loan Priority Collateral securing any of the ABL Obligations now or hereafter held by or on behalf of the ABL Agent or any ABL Secured Parties or any agent or trustee therefor, regardless of how acquired, whether by grant, possession, statute, operation of law or court order, subrogation or otherwise, shall be junior and subordinate in all respects to all Liens on the Term Loan Priority Collateral securing any First-Lien Obligations and any Second-Lien Obligations;

(3)any Lien on the ABL Priority Collateral securing any ABL Obligations now or hereafter held by or on behalf of the ABL Agent or any ABL Secured Parties or any agent or trustee therefor, regardless of how acquired, whether by grant, possession, statute, operation of law, subrogation or otherwise, in each case, shall be senior in all respects and prior to any Lien on the ABL Priority Collateral securing any First-Lien Obligations or any Second-Lien Obligations;

(4)any Lien on the ABL Priority Collateral securing any First-Lien Obligations or any Second-Lien Obligations, now or hereafter held by or on behalf of the First-Lien Security Agent or any First-Lien Secured Parties or any agent or trustee therefor, or by or on behalf of the Second-Lien Security Agent or any Second-Lien Secured Parties or any agent or trustee therefor, as the case may be, regardless of how acquired, whether by grant, possession, statute, operation of law or court order, subrogation or otherwise, in each case, shall be junior and subordinate in all respects to all Liens on the ABL Priority Collateral securing any ABL Obligations;

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(5)any Lien on the Term Loan Priority Collateral or the ABL Priority Collateral securing any First-Lien Obligations now or hereafter held by or on behalf of the First-Lien Security Agent or any First-Lien Secured Parties or any agent or trustee therefor, in each case, regardless of how acquired, whether by grant, possession, statute, operation of law, subrogation or otherwise, shall be senior in all respects and prior to any Lien on the Term Loan Priority Collateral or the ABL Priority Collateral, as the case may be, securing any of the Second-Lien Obligations; and

(6)any Lien on the Term Loan Priority Collateral or the ABL Priority Collateral, as the case may be, securing any Second-Lien Obligations now or hereafter held by or on behalf of the Second-Lien Security Agent or any Second-Lien Secured Parties or any agent or trustee therefor, in each case, regardless of how acquired, whether by grant, possession, statute, operation of law or court order, subrogation or otherwise, shall be junior and subordinate in all respects to all Liens on the Term Loan Priority Collateral or the ABL Priority Collateral, as the case may be, securing any First-Lien Obligations.

(ii)Relative Priorities — Subordination.  The priority and subordination provisions set forth in clauses (1) through (6) above with respect to the Liens on the Collateral securing all or any portion of the ABL Obligations, the First-Lien Obligations or the Second-Lien Obligations are intended to be effective whether or not such Liens are subordinated to any Lien securing any other obligation of the Company, any other Grantor or any other Person.  The parties hereto acknowledge and agree that it is their intent that each of the ABL Obligations (and the security therefor), the First-Lien Obligations (and the security therefor) and the Second-Lien Obligations (and the security therefor) constitute a separate and distinct class of obligations (and separate and distinct claims) from each other.

(b)Prohibition on Contesting Liens.  Each of the ABL Agent, on behalf of itself and each ABL Secured Party, the First-Lien Security Agent, on behalf of itself and each First-Lien Secured Party for which it is acting as agent or representative, and the Second-Lien Security Agent, on behalf of itself and each Second-Lien Secured Party for which it is acting as agent or representative, agrees that it shall not (and hereby waives any right to) contest or support any other Person in contesting, in any proceeding (including any Insolvency or Liquidation Proceeding), (i) the priority, validity, extent, perfection or enforceability of a Lien held by or on behalf of any of the First-Lien Secured Parties, the Second-Lien Secured Parties or the ABL Secured Parties in either the Term Loan Priority Collateral or the ABL Priority Collateral, as the case may be, (ii) the validity or enforceability of any ABL Security Document (or any ABL Obligations thereunder), any First-Lien Security Document (or any First-Lien Obligations thereunder) or any Second-Lien Security Document (or any Second-Lien Obligations thereunder), or (iii) the relative rights and duties of the holders of the ABL Obligations, the First-Lien Obligations and the Second-Lien Obligations granted and/or established in this Agreement; provided that nothing in this Agreement shall be construed to prevent or impair the rights of any of the Security Agents or any Secured Party to enforce this Agreement, including the priority of the Liens on the Term Loan Priority Collateral or ABL Priority Collateral, as the case may be, securing the First-Lien Obligations, the Second-Lien Obligations and the ABL Obligations as provided in Sections 2.1(a)(i), 2.1(a)(ii) and 2.1(a)(iii).

(c)(i) No New Liens - First-Lien Obligations.  So long as the Discharge of First-Lien Obligations has not occurred, except as contemplated by Section 5.4(a), the parties hereto agree that neither the Company nor any other Grantor shall grant or permit any additional Liens on any asset or property of any Grantor to secure any Second-Lien Obligations or any ABL Obligations unless it has granted or contemporaneously grants (A) a First Priority Lien on such asset or property to secure the First-Lien Obligations if such asset or property constitutes Term Loan Priority Collateral or (B) a Second

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Priority Lien (or, after the Discharge of ABL Obligations, secured by a first-priority Lien) on such asset or property to secure the First-Lien Obligations if such asset or property constitutes ABL Priority Collateral (other than in the case of any Deposit Account or Securities Account, a grant of any Liens to the ABL Agent in such Deposit Account during the post-closing time period set forth in Schedule 12.21 of the First-Lien Credit Agreement).  To the extent that the provisions of clause (A) in the immediately preceding sentence are not complied with for any reason, without limiting any other rights and remedies available to the First-Lien Security Agent and/or the First-Lien Secured Parties, each of the Second-Lien Security Agent, on behalf of Second-Lien Secured Parties, and the ABL Agent, on behalf of ABL Secured Parties, agrees that any amounts received by or distributed to any of them pursuant to or as a result of Liens on the Term Loan Priority Collateral granted in contravention of such clause (A) of this Section 2.1(c) shall be subject to Section 3.3.

(ii)No New Liens - Second-Lien Obligations.  So long as the Discharge of Second-Lien Obligations has not occurred, except as contemplated by Section 5.4(a), the parties hereto agree that neither the Company nor any other Grantor shall grant or permit any additional Liens on any asset or property of any Grantor to secure any First-Lien Obligations or any ABL Obligations unless it has granted or contemporaneously grants (A) a Second Priority Lien (or, after the Discharge of First-Lien Obligations has occurred, secured by a first-priority Lien) on such asset or property to secure the Second-Lien Obligations if such asset or property constitutes Term Loan Priority Collateral or (B) a Third Priority Lien (or, after the Discharge of First-Lien Obligations has occurred, secured by a second-priority Lien) on such asset or property to secure the Second-Lien Obligations if such asset or property constitutes ABL Priority Collateral (other than in the case of any Deposit Account or Securities Account, a grant of any Liens to the ABL Agent in such Deposit Account during the post-closing time period set forth in Schedule 12.21 of the Second-Lien Security Agreement).  To the extent that the provisions of clause (A) in the immediately preceding sentence are not complied with for any reason, without limiting any other rights and remedies available to the Second-Lien Security Agent and/or the Second-Lien Secured Parties, the ABL Agent, on behalf of ABL Secured Parties, agrees that any amounts received by or distributed to any of them pursuant to or as a result of Liens on the Term Loan Priority Collateral granted in contravention of such clause (A) of this Section 2.1(c) shall be subject to Section 3.3.

(iii)No New Liens — ABL Obligations.  So long as the Discharge of ABL Obligations has not occurred, except as contemplated by Section 5.4(a), the parties hereto agree that neither the Company nor any other Grantor shall grant or permit any additional Liens on any asset or property of any Grantor to secure any First-Lien Obligations or any Second-Lien Obligations unless it has granted or contemporaneously grants (i) a First Priority Lien on such asset or property to secure the ABL Obligations if such asset or property constitutes ABL Priority Collateral or (ii) a Third Priority Lien (or, after the Discharge of First-Lien Obligations has occurred, secured by a second-priority Lien) on such asset or property to secure the ABL Obligations if such asset or property constitutes Term Loan Priority Collateral.  To the extent that the provisions of clause (i) in the immediately preceding sentence are not complied with for any reason, without limiting any other rights and remedies available to the ABL Agent and/or the ABL Secured Parties, the First-Lien Security Agent, on behalf of First-Lien Secured Parties, and the Second-Lien Security Agent, on behalf of Second-Lien Secured Parties, agree that any amounts received by or distributed to any of them pursuant to or as a result of Liens on the ABL Priority Collateral granted in contravention of such clause (i) of this Section 2.1(c) shall be subject to Section 3.3.  The ABL Agent, acting on behalf of the ABL Secured Parties (and without any requirement for the consent of any Grantor, any First-Lien Agent or any Second-Lien Agent), may elect to waive and forgo its right to receive a Third Priority mortgage on any Term Loan Priority Collateral assets consisting of real property to secure the ABL Obligations (which

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election shall be made in the form of a written waiver and notice to the First-Lien Loan Security Agent, the Second-Lien Security Agent and the Company, except in the case of the Designated Oklahoma Property, with respect to which notice of such election was given as of June 2, 2016 pursuant to the Prior Intercreditor Agreement); provided that, notwithstanding anything to the contrary in this clause (iii) or in any other provision of this Agreement, such election shall not in any way nullify, cancel or otherwise limit the rights of the First-Lien Security Agent and the First-Lien Secured Parties, or of the Second-Lien Security Agent and the Second-Lien Secured Parties, to receive a mortgage on such real property to the secure the Term Loan Obligations.

(d)Effectiveness of Lien Priorities.  Each of the parties hereto acknowledges that the Lien priorities provided for in this Agreement shall not be affected or impaired in any manner whatsoever, including, without limitation, on account of:  (i) the invalidity, irregularity or unenforceability of all or any part of the ABL Documents, the First-Lien Documents or the Second-Lien Documents; (ii) any amendment, change or modification of any ABL Documents, First-Lien Documents or Second-Lien Documents not in contravention of the terms of this Agreement; (iii) any absence or failure of, or delay (including any Permitted Delay) in, the execution and filing of a mortgage with respect to real property, the execution and delivery of a control agreement, or otherwise obtaining perfection or priority, with respect to the security interests and Liens granted in favor of any Security Agent or any Secured Party on any of the Collateral; or (iv) any impairment, modification, change, exchange, release or subordination of or limitation on, any liability of, or stay of actions or lien enforcement proceedings against, Parent or any of its Subsidiaries party to any of the ABL Documents, the First-Lien Documents or the Second-Lien Documents, its property, or its estate in bankruptcy resulting from any bankruptcy, arrangement, readjustment, composition, liquidation, rehabilitation, similar proceeding or otherwise involving or affecting any Secured Party.

(e)Similar Liens and Agreements.  The parties hereto agree that it is their intention that the Collateral securing each of the ABL Obligations, the First-Lien Obligations and the Second-Lien Obligations be the same.  In furtherance of the foregoing and of Section 8.7, each Security Agent and each Secured Party agrees, subject to the other provisions of this Agreement:

(i)upon request by any Security Agent, to cooperate in good faith (and to direct their counsel to cooperate in good faith) from time to time in order to determine the specific items included in the Collateral securing the ABL Obligations, the First-Lien Obligations or the Second-Lien Obligations, as the case may be, and the steps taken to perfect the Liens thereon and the identity of the respective parties obligated under the ABL Documents, the First-Lien Documents or the Second-Lien Documents, as the case may be;

(ii)that the First-Lien Security Documents, the Second-Lien Security Documents and the ABL Security Documents creating Liens on the Term Loan Priority Collateral and the ABL Priority Collateral shall be in all material respects substantially the same forms of documents other than with respect to the First Priority, the Second Priority and the Third Priority nature of the Liens created thereunder in such Collateral (it being understood that the First-Lien Security Documents, the Second-Lien Security Documents and the ABL Security Documents satisfy this provision as of the date hereof); and

(iii)the guarantees for the ABL Obligations, the First-Lien Obligations and the Second-Lien Obligations shall be substantially in the same form.

(f)Reliance on Debt Caps.  Each of the parties hereto acknowledges and agrees that any Indebtedness funded in good faith by the applicable lenders or investors in reliance on a certificate of an authorized officer of the Company that such Indebtedness is permitted pursuant to the ABL Credit

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Agreement, First-Lien Credit Agreement and the Second-Lien Credit Agreement and the applicable ABL Debt Cap, First-Lien Debt Cap or Second-Lien Debt Cap (which certificate may be addressed to the appropriate agent or trustee for the Secured Parties providing such Indebtedness) shall for all purposes hereunder constitute ABL Priority Obligations (and not Excess ABL Obligations), First-Lien Priority Obligations (and not Excess First-Lien Obligations) or Second-Lien Priority Obligations (and not Excess Second-Lien Obligations), as applicable, based on such good faith reliance, notwithstanding any subsequent determination that the conditions to such incurrence were not satisfied, or that such Indebtedness is not permitted pursuant to the ABL Credit Agreement, the First-Lien Credit Agreement and the Second-Lien Credit Agreement or within the ABL Cap, the First-Lien Debt Cap or the Second-Lien Debt Cap, as applicable, due to an error in financial calculations or otherwise.

Section 3.  Term Loan Priority Collateral.

3.1Exercise of Remedies — Prior to Discharge of First-Lien Obligations.

(a)So long as the Discharge of First-Lien Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor:

(i)none of the ABL Agent, any of the ABL Secured Parties, the Second-Lien Security Agent or any of the Second-Lien Secured Parties (x) will exercise or seek to exercise any rights or remedies (including, without limitation, set off) with respect to any Term Loan Priority Collateral (including, without limitation, the exercise of any right under any lockbox agreement, account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement in respect of Term Loan Priority Collateral to which the ABL Agent, any ABL Secured Party, the Second-Lien Security Agent or any Second-Lien Secured Party is a party) or institute or commence, or join with any Person (other than the First-Lien Security Agent and the First-Lien Secured Parties) in commencing any action or proceeding with respect to such rights or remedies (including any action of foreclosure, enforcement, collection or execution); provided, however, that (A) the Second-Lien Security Agent may exercise any or all such rights in accordance with the Second-Lien Documents after the passage of a period of 120 days from the date of delivery of a notice in writing (the “Second-Lien Notice”) to the First-Lien Security Agent of the Second-Lien Security Agent’s intention to exercise its right to take such actions (the “Second-Lien Standstill Period”) and (B) the ABL Agent may exercise any or all such rights in accordance with the ABL Documents after the passage of a period of 180 days from the date of delivery of a notice in writing (the “ABL Notice”) to the First-Lien Security Agent of the ABL Security Agent’s intention to exercise its right to take such actions (the “ABL Standstill Period”); provided, further, however, notwithstanding anything herein to the contrary, none of the ABL Agent, any ABL Secured Party, the Second-Lien Security Agent or any Second-Lien Secured Party will exercise any rights or remedies with respect to any Term Loan Priority Collateral if, notwithstanding the expiration of the Second-Lien Standstill Period and/or the ABL Standstill Period, as the case may be, the First-Lien Security Agent or First-Lien Secured Parties shall have commenced and be diligently pursuing in good faith the exercise of any of their rights or remedies with respect to a material portion of the Term Loan Priority Collateral (prompt notice of such exercise to be given to the Second-Lien Security Agent and the ABL Agent), (y) will contest, protest or object to any foreclosure proceeding or action brought by the First-Lien Security Agent or any First-Lien Secured Party with respect to, or any other exercise by the First-Lien Security Agent or any First-Lien Secured Party of any rights and remedies relating to, the Term Loan Priority Collateral under the First-Lien Documents or otherwise, or (z) subject to its rights under clause (i)(x) above, will object to the forbearance by the First-Lien Security Agent or the First-Lien Secured Parties from bringing or pursuing any foreclosure proceeding or action or

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any other exercise of any rights or remedies relating to the Term Loan Priority Collateral, in each case so long as the respective interests of the Second-Lien Secured Parties and the ABL Secured Parties attach to the proceeds thereof subject to the relative priorities described in Section 2.1; provided, however, that nothing in this Section 3.1(a) shall be construed to authorize the ABL Agent, any ABL Secured Party, the Second-Lien Security Agent or any Second-Lien Secured Party to sell any Term Loan Priority Collateral free of the Lien of the First-Lien Security Agent or any First-Lien Secured Party; and provided further, that no (i) Second-Lien Notice may be given or issued unless an event of default under the Second-Lien Obligations (or any Controlling Class of Second-Lien Obligations) has occurred and is continuing and the maturity of the Second- Lien Obligations (or any Controlling Class of Second-Lien Obligations) has been accelerated (or the Second-Lien Obligations of any Controlling Class of Second-Lien Obligations have not been paid at the final maturity date thereof) and (ii) ABL Notice may be given or issued unless an event of default under the ABL Obligations has occurred and is continuing and the maturity of the ABL Obligations have been accelerated (or the ABL Obligations have not been paid at the final maturity date thereof); and

(ii)subject to Section 6 and clause (i)(x) above, the First-Lien Security Agent and the First-Lien Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including set off and the right to credit bid their debt) and make determinations regarding the disposition of, or restrictions with respect to, the Term Loan Priority Collateral without any consultation with or the consent of the Second-Lien Security Agent, any Second-Lien Secured Party, the ABL Agent or any ABL Secured Party; provided, that:

(1)in any Insolvency or Liquidation Proceeding commenced by or against the Parent, Holdings, the Company or any other Grantor, the Second-Lien Security Agent, any Second-Lien Secured Party, the ABL Agent and any ABL Secured Party may file a claim or statement of interest with respect to the First-Lien Obligations;

(2)the Second-Lien Security Agent, any Second-Lien Secured Party, the ABL Agent and any ABL Secured Party may take any action (not adverse to the priority status of the Liens on the Term Loan Priority Collateral securing the First-Lien Obligations, or the rights of any First-Lien Security Agent or the First-Lien Secured Parties to exercise remedies in respect thereof) in accordance with the Second-Lien Documents or the ABL Documents and the terms of this Agreement, as the case may be, in order to preserve or protect its Lien on the Term Loan Priority Collateral;

(3)the Second-Lien Secured Parties and the ABL Secured Parties shall be entitled to file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any Person objecting to or otherwise seeking the disallowance of the claims of the Second-Lien Secured Parties or the ABL Secured Parties, as the case may be, including without limitation any claims secured by the Term Loan Priority Collateral, if any, in each case in accordance with the terms of this Agreement;

(4)the Second-Lien Secured Parties and the ABL Secured Parties shall be entitled to file any pleadings, objections, motions or agreements which assert rights or interests available to unsecured creditors of the Grantors arising under either the Bankruptcy Law or applicable non-bankruptcy law, in each case in accordance with the terms of this Agreement and to the extent not prohibited by any other provision of this Agreement;

(5)the Second-Lien Secured Parties and the ABL Secured Parties shall be

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entitled to vote on any plan of reorganization and file any proof of claim in an Insolvency or Liquidation Proceeding or otherwise and other filings and make any arguments and motions that are, in each case, in accordance with the terms of this Agreement, with respect to the Term Loan Priority Collateral;

(6)the Second-Lien Security Agent or any Second-Lien Secured Party may exercise any of its rights or remedies with respect to the Term Loan Priority Collateral in accordance with the Second-Lien Documents after the termination of the Second-Lien Standstill Period to the extent permitted by clause (i)(x) above; and

(7)subject to Section 3.2, the ABL Agent or any ABL Secured Party may exercise any of its rights or remedies with respect to the Term Loan Priority Collateral in accordance with the ABL Documents after the termination of the ABL Standstill Period to the extent permitted by clause (i)(x) above.

Subject to Section 6 and clause (i)(x) of this Section 3.1(a), in exercising rights and remedies with respect to the Term Loan Priority Collateral, the First-Lien Security Agent and the First-Lien Secured Parties may enforce the provisions of the First-Lien Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion.  Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Term Loan Priority Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC of any applicable jurisdiction and of a secured creditor under any other applicable law.

(b)Each of the ABL Agent, on behalf of itself and the ABL Secured Parties, and the Second-Lien Security Agent, on behalf of itself and the Second-Lien Secured Parties, agrees that it will not take or receive any Term Loan Priority Collateral or any proceeds of Term Loan Priority Collateral in connection with the exercise of any right or remedy (including set off) with respect to any Term Loan Priority Collateral unless and until the Discharge of First-Lien Obligations has occurred, except as expressly provided in the first proviso in clause (i)(x) of Section 3.1(a) or in the proviso in clause (ii) of Section 3.1(a) or in Section 6.  Without limiting the generality of the foregoing, unless and until the Discharge of First-Lien Obligations has occurred, except as expressly provided in the first proviso in clause (i)(x) of Section 3.1(a) or in the proviso in clause (ii) of Section 3.1(a) or in Section 6, the sole right of the ABL Agent and the ABL Secured Parties, and the Second-Lien Security Agent and the Second-Lien Secured Parties, as the case may be, with respect to the Term Loan Priority Collateral is to hold a Lien on the Term Loan Priority Collateral pursuant to the ABL Documents or the Second-Lien Documents, as the case may be, for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of First-Lien Obligations has occurred in accordance with the terms hereof, the First-Lien Documents and applicable law.

(c)Subject to the first proviso in clause (i)(x) of Section 3.1(a), and Section 6:

(i)each of the ABL Agent, on behalf of itself and the ABL Secured Parties, and the Second-Lien Security Agent, on behalf of itself and the Second-Lien Secured Parties, agrees that the ABL Agent and the ABL Secured Parties and the Second-Lien Security Agent and the Second-Lien Secured Parties, as the case may be, will not take any action that would hinder delay, limit or prohibit any exercise of remedies under the First-Lien Documents with respect to the Term Loan Priority Collateral, including any collection, sale, lease, exchange, transfer or other disposition of the Term Loan Priority Collateral, whether by foreclosure or otherwise, or that would limit, invalidate, avoid or set aside any Lien or First-Lien Security Document with respect to the Term Loan Priority Collateral or subordinate the priority of the First-Lien

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Obligations to the ABL Obligations or the Second-Lien Obligations, as the case may be, with respect to the Term Loan Priority Collateral or grant the Liens with respect to the Term Loan Priority Collateral securing the ABL Obligations or the Second-Lien Obligations, as the case may be, equal ranking to the Liens with respect to the Term Loan Priority Collateral securing the First-Lien Obligations; and

(ii)each of the ABL Agent, on behalf of itself and the ABL Secured Parties, and the Second-Lien Security Agent, on behalf of itself and the Second-Lien Secured Parties, hereby waives any and all rights it or the ABL Secured Parties or the Second-Lien Secured Parties, as the case may be, may have as junior lien creditors with respect to the Term Loan Priority Collateral or otherwise to object to the manner in which the First-Lien Security Agent or the First-Lien Secured Parties seek to enforce or collect the First-Lien Obligations or the Liens granted in any of the Term Loan Priority Collateral, in any such case except to the extent such enforcement or collection is in violation of the terms of this Agreement, regardless of whether any action or failure to act by or on behalf of the First-Lien Security Agent or First-Lien Secured Parties is adverse to the interest of the ABL Secured Parties or the Second-Lien Secured Parties, as the case may be; and

(d)Each of the ABL Agent, on behalf of itself and the ABL Secured Parties, and the Second-Lien Security Agent, on behalf of itself and the Second-Lien Secured Parties, hereby acknowledges and agrees that no covenant, agreement or restriction contained in any ABL Document or Second-Lien Document, as the case may be (other than this Agreement to the extent expressly set forth herein) shall be deemed to restrict in any way the rights and remedies of the First-Lien Security Agent or the First-Lien Secured Parties with respect to the Term Loan Priority Collateral as set forth in this Agreement and the First-Lien Documents.

3.2Exercise of Remedies — After Discharge of First-Lien Obligations.

(a)After the Discharge of First-Lien Obligations has occurred and so long as the Discharge of Second-Lien Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor:

(i)neither the ABL Agent nor any of the ABL Secured Parties (x) will exercise or seek to exercise any rights or remedies (including, without limitation, setoff) with respect to any Term Loan Priority Collateral (including, without limitation, the exercise of any right under any lockbox agreement, account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement in respect of Term Loan Priority Collateral to which the ABL Agent or any ABL Secured Party is a party) or institute or commence, or join with any Person (other than the Second-Lien Security Agent and the Second-Lien Secured Parties) in commencing any action or proceeding with respect to such rights or remedies (including any action of foreclosure), enforcement, collection or execution; provided, however, that the ABL Agent may exercise any or all such rights in accordance with the ABL Documents after the passage of a period of 120 days from the date of delivery of a notice in writing (the “ABL/Second-Lien Notice”) to the Second-Lien Security Agent of the ABL Agent’s intention to exercise its right to take such actions (the “ABL/Second-Lien Standstill Period”); provided, further, however, notwithstanding anything herein to the contrary, neither the ABL Agent nor any ABL Secured Party will exercise any rights or remedies with respect to any Term Loan Priority Collateral if, notwithstanding the expiration of the ABL/Second-Lien Standstill Period, the Second-Lien Security Agent or Second-Lien Secured Parties shall have commenced and be diligently pursuing in good faith the exercise of any of their rights or remedies with respect to a material portion of the Term Loan Priority Collateral (prompt notice of such exercise to be given to the ABL Agent), (y) will contest, protest

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or object to any foreclosure proceeding or action brought by the Second-Lien Security Agent or any Second-Lien Secured Party with respect to, or any other exercise by the Second-Lien Security Agent or any Second-Lien Secured Party of any rights and remedies relating to, the Term Loan Priority Collateral under the Second-Lien Documents or otherwise, and (z) subject to its rights under clause (i)(x) above, will object to the forbearance by the Second-Lien Security Agent or the Second-Lien Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Term Loan Priority Collateral, in each case so long as the respective interests of the ABL Secured Parties attach to the proceeds thereof subject to the relative priorities described in Section 2.1; provided, however, that nothing in this Section 3.2(a) shall be construed to authorize the ABL Agent or any ABL Secured Party to sell any Term Loan Priority Collateral free of the Lien of the Second-Lien Security Agent or any Second-Lien Secured Party; and provided further that no ABL/Second-Lien Notice may be given or issued unless an event of default under the ABL Obligations has occurred and is continuing and the maturity of the ABL Obligations has been accelerated (or the ABL Obligations have not been paid at the final maturity date thereof); and

(ii)subject to Section 6 and clause (i)(x) above, the Second-Lien Security Agent and the Second-Lien Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including set off and the right to credit bid their debt) and make determinations regarding the disposition of, or restrictions with respect to, the Term Loan Priority Collateral without any consultation with or the consent of the ABL Agent or any ABL Secured Party; provided, that:

(1)in any Insolvency or Liquidation Proceeding commenced by or against Parent, Holdings, the Company or any other Grantor, the ABL Agent and any ABL Secured Party may file a claim or statement of interest with respect to the Second-Lien Obligations;

(2)the ABL Agent and any ABL Secured Party may take any action (not adverse to the priority status of the Liens on the Term Loan Priority Collateral securing the Second-Lien Obligations, or the rights of any Second-Lien Security Agent or the Second-Lien Secured Parties to exercise remedies in respect thereof) in accordance with the ABL Documents in order to preserve or protect its Lien on the Term Loan Priority Collateral;

(3)the ABL Secured Parties shall be entitled to file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any Person objecting to or otherwise seeking the disallowance of the claims of the ABL Secured Parties, including without limitation any claims secured by the Term Loan Priority Collateral, if any, in each case in accordance with the terms of this Agreement;

(4)the ABL Secured Parties shall be entitled to file any pleadings, objections, motions or agreements which assert rights or interests available to unsecured creditors of the Grantors arising under either the Bankruptcy Law or applicable non-bankruptcy law, in each case in accordance with the terms of this Agreement and to the extent not prohibited by any other provision of this Agreement;

(5)the ABL Secured Parties shall be entitled to vote on any plan of reorganization and file any proof of claim in an Insolvency or Liquidation Proceeding or otherwise and other filings and make any arguments and motions that are, in each case, in accordance with the terms of this Agreement, with respect to the Term Loan Priority Collateral; and

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(6)the ABL Agent or any ABL Secured Party may exercise any of its rights or remedies with respect to the Term Loan Priority Collateral in accordance with the ABL Documents after the termination of the ABL/Second-Lien Standstill Period to the extent permitted by clause (i)(x) above.

Subject to Section 6 and clause (i)(x) above, in exercising rights and remedies with respect to the Term Loan Priority Collateral following the Discharge of First-Lien Obligations, the Second-Lien Security Agent and the Second-Lien Secured Parties may enforce the provisions of the Second-Lien Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion.  Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Term Loan Priority Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC of any applicable jurisdiction and of a secured creditor under any other applicable law.

(b)After the Discharge of First-Lien Obligations has occurred and so long as the Discharge of Second-Lien Obligations has not occurred, the ABL Agent, on behalf of itself and the ABL Secured Parties, agrees that it will not take or receive any Term Loan Priority Collateral or any proceeds of Term Loan Priority Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Term Loan Priority Collateral, except as expressly provided in the first proviso in clause (i)(x) of Section 3.2(a) or in the proviso in clause (ii) of Section 3.2(a) or in Section 6.  Without limiting the generality of the foregoing, unless and until the Discharge of Second-Lien Obligations has occurred, except as expressly provided in the first proviso in clause (i)(x) of Section 3.2(a) or in the proviso in clause (ii) of Section 3.2(a) or in Section 6, the sole right of the ABL Agent and the ABL Secured Parties with respect to the Term Loan Priority Collateral is to hold a Lien on the Term Loan Priority Collateral pursuant to the ABL Documents for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Second-Lien Obligations has occurred in accordance with the terms hereof, the Second-Lien Documents and applicable law.

(c)After the Discharge of First-Lien Obligations has occurred and so long as the Discharge of Second-Lien Obligations has not occurred, subject to the first proviso in clause (i)(x) of Section 3.2(a), the proviso in clause (ii) of Section 3.2(a) and Section 6:

(i)the ABL Agent, on behalf of itself and the ABL Secured Parties, agrees that the ABL Agent and the ABL Secured Parties will not take any action that would hinder delay, limit or prohibit any exercise of remedies under the Second-Lien Documents with respect to the Term Loan Priority Collateral, including any collection, sale, lease, exchange, transfer or other disposition of the Term Loan Priority Collateral, whether by foreclosure or otherwise, or that would limit, invalidate, avoid or set aside any Lien or Second-Lien Security Document with respect to the Term Loan Priority Collateral or subordinate the priority of the Second-Lien Obligations to the ABL Obligations with respect to the Term Loan Priority Collateral or grant the Liens with respect to the Term Loan Priority Collateral securing the ABL Obligations equal ranking to the Liens with respect to the Term Loan Priority Collateral securing the Second-Lien Obligations, and

(ii)the ABL Agent, on behalf of itself and the ABL Secured Parties, hereby waives any and all rights it or the ABL Secured Parties may have as a junior lien creditor with respect to the Term Loan Priority Collateral or otherwise to object to the manner in which the Second-Lien Security Agent or the Second-Lien Secured Parties seek to enforce or collect the Second-Lien Obligations or the Liens granted in any of the Term Loan Priority Collateral, in any such case except to the extent such enforcement or collection is in violation of the terms of this Agreement,

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regardless of whether any action or failure to act by or on behalf of the Second-Lien Security Agent or Second-Lien Secured Parties is adverse to the interest of the ABL Secured Parties.

(d)The ABL Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any ABL Document (other than this Agreement to the extent expressly set forth herein) shall be deemed to restrict in any way the rights and remedies of the Second-Lien Security Agent or the Second-Lien Secured Parties with respect to the Term Loan Priority Collateral as set forth in this Agreement and the Second-Lien Documents.

3.3Payments Over.

(a)Prior to Discharge of First-Lien Obligations.  So long as the Discharge of First-Lien Obligations has not occurred, any Term Loan Priority Collateral, Cash Proceeds thereof or non-Cash Proceeds constituting Term Loan Priority Collateral (or any distribution in respect of the Term Loan Priority Collateral, whether or not expressly characterized as such) received by (i) the Second-Lien Security Agent or any Second-Lien Secured Parties or (ii) the ABL Agent or any ABL Secured Parties, in each case, in connection with the exercise of any right or remedy (including set off) relating to the Term Loan Priority Collateral or otherwise that is inconsistent with this Agreement shall be segregated and held in trust and forthwith paid over to the First-Lien Security Agent, for the benefit of the First-Lien Secured Parties, for application in accordance with Section 7.1 below, in the same form as received, with any necessary endorsements or as a court of competent jurisdiction may otherwise direct.  The First-Lien Security Agent is hereby authorized to make any such endorsements as agent for the Second-Lien Security Agent, any such Second-Lien Secured Parties, the ABL Agent and any such ABL Secured Parties, as the case may be.  This authorization is coupled with an interest and is irrevocable until the Discharge of First-Lien Obligations.

(b)After Discharge of First-Lien Obligations.  After the Discharge of First-Lien Obligations has occurred and so long as the Discharge of Second-Lien Obligations has not occurred, any Term Loan Priority Collateral, Cash Proceeds thereof or non-Cash Proceeds constituting Term Loan Priority Collateral (or any distribution in respect of the Term Loan Priority Collateral, whether or not expressly characterized as such) received by the ABL Agent or any ABL Secured Parties in connection with the exercise of any right or remedy (including set off) relating to the Term Loan Priority Collateral or otherwise that is inconsistent with this Agreement shall be segregated and held in trust and forthwith paid over to the Second-Lien Security Agent, for the benefit of the Second-Lien Secured Parties, for application in accordance with Section 7.3 below, in the same form as received, with any necessary endorsements or as a court of competent jurisdiction may otherwise direct.  The Second-Lien Security Agent is hereby authorized to make any such endorsements as agent for the ABL Agent and any such ABL Secured Parties.  This authorization is coupled with an interest and is irrevocable until the Discharge of Second-Lien Obligations.

3.4Other Agreements.

(a)Releases — First-Lien Obligations.

(i)If, in connection with:

(1)the exercise of any of the First-Lien Security Agent’s remedies in respect of the Term Loan Priority Collateral provided for in Section 3.1(a) (with the proceeds thereof being applied to the First-Lien Priority Obligations), including any sale, lease, exchange, transfer or other disposition of any such Term Loan Priority Collateral; or

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(2)any sale, lease, exchange, transfer or other disposition of any Term Loan Priority Collateral permitted under the terms of the First-Lien Documents, the Second-Lien Documents and the ABL Documents other than (A) in connection with the Discharge of First-Lien Obligations and (B) after the occurrence and during the continuance of any event of default under the Second-Lien Credit Agreement or the ABL Credit Agreement,

the First-Lien Security Agent, on behalf of itself and the First-Lien Secured Parties, releases any of its Liens on any part of the Term Loan Priority Collateral, then the Liens, if any, of (x) the Second-Lien Security Agent, for itself and for the benefit of the Second-Lien Secured Parties, and (y) the ABL Agent, for itself and for the benefit of the ABL Secured Parties, on such Term Loan Priority Collateral (but not the Proceeds thereof, which shall be subject to the priorities set forth in this Agreement) shall be automatically, unconditionally and simultaneously released and (x) the Second-Lien Security Agent, for itself and on behalf of the Second-Lien Secured Parties, and (y) the ABL Agent, for itself and on behalf of the ABL Secured Parties, promptly shall execute and deliver to the First-Lien Security Agent or such Grantor (at the expense of such Grantor) such termination statements, releases and other documents as the First-Lien Security Agent or such Grantor may reasonably request to effectively confirm such release.

(ii)Until the Discharge of First-Lien Obligations occurs, each of (x) the Second-Lien Security Agent, for itself and on behalf of the Second-Lien Secured Parties, and (y) the ABL Agent, for itself and on behalf of the ABL Secured Parties, hereby irrevocably constitutes and appoints the First-Lien Security Agent and any officer or agent of the First-Lien Security Agent, with full power of substitution, as its true and lawful attorney in fact with full irrevocable power and authority in the place and stead of the Second-Lien Security Agent or the ABL Agent, as the case may be, or such Secured Party or in the First-Lien Security Agent’s own name, from time to time in the First-Lien Security Agent’s discretion, for the purpose of carrying out the terms of this Section 3.4(a) with respect to Term Loan Priority Collateral, to take any and all appropriate action and to execute any and all documents and instruments which may be necessary to accomplish the purposes of this Section 3.4(a) with respect to Term Loan Priority Collateral, including any endorsements or other instruments of transfer or release.

(iii)Until the Discharge of First-Lien Obligations occurs, to the extent that the First-Lien Secured Parties (A) have released any Lien on Term Loan Priority Collateral and any such Lien is later reinstated or (B) obtain any new First Priority Liens on assets constituting Term Loan Priority Collateral from Grantors, then (x) the Second-Lien Secured Parties shall be granted a Second Priority Lien and (y) the ABL Secured Parties shall be granted a Third Priority Lien (or, after the Discharge of Second-Lien Obligations has occurred, a Second Priority Lien), on any such Term Loan Priority Collateral.

(iv)If, prior to the Discharge of First-Lien Obligations, a subordination of the First-Lien Security Agent’s Lien on any Term Loan Priority Collateral is permitted under the First-Lien Credit Agreement, the Second-Lien Credit Agreement and the ABL Credit Agreement to another Lien permitted under the First-Lien Credit Agreement, the Second-Lien Credit Agreement and the ABL Credit Agreement (a “First-Lien Collateral Priority Lien”), then (x) the First-Lien Security Agent is authorized to execute and deliver a subordination agreement with respect thereto in form and substance satisfactory to it, and (y) each of the Second-Lien Security Agent, on behalf of itself and the Second-Lien Secured Parties, and the ABL Agent, on behalf of itself and the ABL Secured Parties, shall each promptly execute and deliver to the First-Lien Security Agent an identical subordination agreement subordinating the Liens of the Second-Lien Security Agent, for the benefit of (and on behalf of) the Second-Lien Secured Parties, and the ABL Agent, for the benefit of (and on behalf of) the ABL Secured Parties, respectively, to such

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First-Lien Collateral Priority Lien.

(b)Releases — Second-Lien Obligations.

(i)After the Discharge of First-Lien Obligations has occurred and so long as the Discharge of Second-Lien Obligations has not occurred, if, in connection with:

(1)the exercise of any of the Second-Lien Security Agent’s remedies in respect of the Term Loan Priority Collateral provided for in Section 3.2(a) (with the proceeds thereof being applied to the Second-Lien Priority Obligations), including any sale, lease, exchange, transfer or other disposition of any such Term Loan Priority Collateral; or

(2)any sale, lease, exchange, transfer or other disposition of any Term Loan Priority Collateral permitted under the terms of the Second-Lien Documents and the ABL Documents other than (A) in connection with the Discharge of Second-Lien Obligations and (B) after the occurrence and during the continuance of any event of default under the ABL Credit Agreement),

the Second-Lien Security Agent, on behalf of itself and the Second-Lien Secured Parties, releases any of its Liens on any part of the Term Loan Priority Collateral, then the Liens, if any, of the ABL Agent, for itself and for the benefit of the ABL Secured Parties, on such Term Loan Priority Collateral (but not the Proceeds thereof, which shall be subject to the priorities set forth in this Agreement) shall be automatically, unconditionally and simultaneously released and the ABL Agent, for itself and on behalf of the ABL Secured Parties, promptly shall execute and deliver to the Second-Lien Security Agent or such Grantor (at the expense of such Grantor) such termination statements, releases and other documents as the Second-Lien Security Agent or such Grantor may reasonably request to effectively confirm such release.

(ii)Until the Discharge of Second-Lien Obligations occurs, the ABL Agent, on behalf of itself and the ABL Secured Parties, hereby irrevocably constitutes and appoints the Second-Lien Security Agent and any officer or agent of the Second-Lien Security Agent, with full power of substitution, as its true and lawful attorney in fact with full irrevocable power and authority in the place and stead of the ABL Agent or such holder or in the Second-Lien Security Agent’s own name, from time to time in the Second-Lien Security Agent’s discretion, for the purpose of carrying out the terms of this Section 3.4(b) with respect to Term Loan Priority Collateral, to take any and all appropriate action and to execute any and all documents and instruments which may be necessary to accomplish the purposes of this Section 3.4(b) with respect to Term Loan Priority Collateral, including any endorsements or other instruments of transfer or release.

(iii)Until the Discharge of Second-Lien Obligations occurs, to the extent that the Second-Lien Secured Parties (x) have released any Lien on Term Loan Priority Collateral and any such Lien is later reinstated or (y) obtain any new Second Priority Liens (or, after the Discharge of First-Lien Obligations has occurred, First Priority Liens) on assets constituting Term Loan Priority Collateral from Grantors, then the ABL Secured Parties shall be granted a Third Priority Lien (or, after the Discharge of First-Lien Obligations has occurred, a Second Priority Lien) on any such Term Loan Priority Collateral.

(iv)If, prior to the Discharge of Second-Lien Obligations, a subordination of the Second-Lien Security Agent’s Lien on any Term Loan Priority Collateral is permitted under

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the Second-Lien Credit Agreement and the ABL Credit Agreement to another Lien permitted under the Second-Lien Credit Agreement and the ABL Credit Agreement (a “Second-Lien Collateral Priority Lien”), then the Second-Lien Security Agent is authorized to execute and deliver a subordination agreement with respect thereto in form and substance satisfactory to it, and the Second-Lien Security Agent, on behalf of itself and the Second-Lien Secured Parties, shall promptly execute and deliver to the Second-Lien Security Agent an identical subordination agreement subordinating the Liens of the ABL Agent for the benefit of (and behalf of) the ABL Secured Parties to such Second-Lien Collateral Priority Lien.

(c)Insurance — Prior to Discharge of First-Lien Obligations.  Unless and until the Discharge of First-Lien Obligations has occurred, the First-Lien Security Agent and the First-Lien Secured Parties shall have the sole and exclusive right, subject to the rights of the Grantors under the First-Lien Documents, to adjust settlement for any insurance policy covering the Term Loan Priority Collateral in the event of any loss thereunder and to approve any award granted in any condemnation or similar proceeding (or any deed in lieu of condemnation) in respect of the Term Loan Priority Collateral.  If (i) the Second-Lien Security Agent or any Second-Lien Secured Party or (ii) the ABL Agent or any ABL Secured Party shall, at any time, receive any proceeds of any such insurance policy or any such award or payment in contravention of this Section 3.4(c), it shall pay such proceeds over to the First-Lien Security Agent in accordance with the terms of Section 7.2(c) and 7.3(c), as the case may be.

(d)Insurance — After Discharge of First-Lien Obligations.  After the Discharge of First-Lien Obligations has occurred, and unless and until the Discharge of Second-Lien Obligations has occurred, the Second-Lien Security Agent and the Second-Lien Secured Parties shall have the sole and exclusive right, subject to the rights of the Grantors under the Second-Lien Documents, to adjust settlement for any insurance policy covering the Term Loan Priority Collateral in the event of any loss thereunder and to approve any award granted in any condemnation or similar proceeding (or any deed in lieu of condemnation) in respect of the Term Loan Priority Collateral.  If the ABL Agent or any ABL Secured Party shall, at any time, receive any proceeds of any such insurance policy or any such award or payment in contravention of this Section 3.4(d), it shall pay such proceeds over to the Second-Lien Security Agent in accordance with the terms of Section 7.2(c).

(e)Rights as Unsecured Creditors.

(i)Except as otherwise expressly set forth in this Agreement, the ABL Agent and the ABL Secured Parties may exercise rights and remedies as unsecured creditors against the Company or any other Grantor in accordance with the terms of the ABL Documents to which the ABL Agent or such ABL Secured Parties are party and applicable law.  Except as otherwise set forth in this Agreement, nothing in this Agreement shall prohibit the receipt by the ABL Agent or any ABL Secured Parties of the required payments of interest, principal and other amounts in respect of the ABL Obligations so long as such receipt is not the direct or indirect result of the exercise by the ABL Agent or any ABL Secured Party of rights or remedies as a secured creditor (including set off) in respect of the Term Loan Priority Collateral in contravention of this Agreement or enforcement in contravention of this Agreement of any Lien held by any of them.  In the event the ABL Agent or any other ABL Secured Party becomes a judgment lien creditor in respect of Term Loan Priority Collateral as a result of its enforcement of its rights as an unsecured creditor, such judgment lien shall be subordinated to (x) the Liens securing First-Lien Obligations and (y) the Liens securing Second-Lien Obligations, in each case, on the same basis as the other Liens on the Term Loan Priority Collateral securing the ABL Obligations are so subordinated to such First-Lien Obligations and Second-Lien Obligations, respectively, under this Agreement.

(ii)Except as otherwise expressly set forth in this Agreement, the Second-Lien

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Security Agent and the Second-Lien Secured Parties may exercise rights and remedies as unsecured creditors against the Company or any other Grantor in accordance with the terms of the Second-Lien Documents to which the Second-Lien Security Agent or such Second-Lien Secured Parties are party and applicable law.  Except as otherwise set forth in this Agreement, nothing in this Agreement shall prohibit the receipt by the Second-Lien Security Agent or any Second-Lien Secured Parties of the required payments of interest, principal and other amounts in respect of the Second-Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Second-Lien Security Agent or any Second-Lien Secured Party of rights or remedies as a secured creditor (including set off) in respect of the Term Loan Priority Collateral in contravention of this Agreement or enforcement in contravention of this Agreement of any Lien held by any of them.  In the event the Second-Lien Security Agent or any other Second-Lien Secured Party becomes a judgment lien creditor in respect of Term Loan Priority Collateral as a result of its enforcement of its rights as an unsecured creditor, such judgment lien shall be subordinated to the Liens securing First-Lien Obligations on the same basis as the other Liens on the Term Loan Priority Collateral securing the Second-Lien Obligations are so subordinated to such First-Lien Obligations under this Agreement.

(iii)Except as otherwise set forth in this Agreement, nothing in this Agreement (x) impairs or otherwise adversely affects any rights or remedies the First-Lien Security Agent or the other First-Lien Secured Parties may have with respect to the Term Loan Priority Collateral and (y) from and after the Discharge of First-Lien Obligations, impairs or otherwise adversely affects any rights or remedies the Second-Lien Security Agent or the other Second-Lien Secured Parties may have with respect to the Term Loan Priority Collateral.

(f)Bailee for Perfection — First-Lien Security Agent.

(i)The First-Lien Security Agent agrees to hold or control that part of the Term Loan Priority Collateral that is in its possession or control (or in the possession or control of its agents or bailees) to the extent that possession or control thereof is taken to perfect a Lien thereon under the UCC or other applicable law (such Term Loan Priority Collateral being the “Pledged Term Loan Priority Collateral”) as security agent for the First-Lien Secured Parties and as bailee for and, with respect to any Term Loan Priority Collateral that cannot be perfected in such manner, as agent for, the Second-Lien Security Agent, on behalf of itself and the Second-Lien Secured Parties, and the ABL Agent, on behalf of itself and the ABL Secured Parties, and any assignee thereof solely for the purpose of perfecting the security interest granted under the First-Lien Documents, the Second-Lien Documents and the ABL Documents, respectively, subject to the terms and conditions of this Section 3.4(f).

(ii)Subject to the terms of this Agreement, until the Discharge of First-Lien Obligations has occurred, the First-Lien Security Agent shall be entitled to deal with the Pledged Term Loan Priority Collateral in accordance with the terms of the First-Lien Documents as if the Liens of (x) the Second-Lien Security Agent under the Second-Lien Security Documents and (y) the ABL Agent under the ABL Security Documents did not exist.  The rights of the Second-Lien Security Agent, the Second-Lien Secured Parties, the ABL Agent and the ABL Secured Parties shall at all times be subject to the terms of this Agreement and to the First-Lien Security Agent’s rights under the First-Lien Documents.

(iii)The First-Lien Security Agent shall have no obligation whatsoever to any First-Lien Secured Party, the Second-Lien Security Agent, any Second-Lien Secured Party, the ABL Agent or any ABL Secured Party to ensure that the Pledged Term Loan Priority Collateral is genuine or owned by any of the Grantors or to preserve rights or benefits of any Person except as

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expressly set forth in this Section 3.4(f).  The duties or responsibilities of the First-Lien Security Agent under this Section 3.4(f) shall be limited solely to holding the Pledged Term Loan Priority Collateral as bailee or agent in accordance with this Section 3.4(f).

(iv)The First-Lien Security Agent acting pursuant to this Section 3.4(f) shall not have by reason of the First-Lien Security Documents, the Second-Lien Security Documents, the ABL Documents, this Agreement or any other document a fiduciary relationship in respect of any First-Lien Secured Party, the Second-Lien Security Agent, any Second-Lien Secured Party, the ABL Agent or any ABL Secured Party.

(v)Upon the Discharge of First-Lien Obligations, the First-Lien Security Agent shall deliver or cause to be delivered the remaining Pledged Term Loan Priority Collateral (if any) in its possession or in the possession of its agents or bailees, together with any necessary endorsements, (A) first, to the Second-Lien Security Agent to the extent Second-Lien Obligations remain outstanding, (B) second, to the ABL Agent to the extent ABL Obligations remain outstanding and (C) third, to the applicable Grantor to the extent no First-Lien Obligations, Second-Lien Obligations or ABL Obligations remain outstanding (in each case, so as to allow such Person to obtain control of such Pledged Term Loan Priority Collateral) and will cooperate with the Second-Lien Security Agent, the ABL Agent or such Grantor, as the case may be, in assigning (without recourse to or warranty by the First-Lien Security Agent or any First-Lien Secured Party or agent or bailee thereof) control over any other Pledged Term Loan Priority Collateral under its control.  The First-Lien Security Agent further agrees to take all other action reasonably requested by such Person (at the sole cost and expense of the Grantors) in connection with such Person obtaining a first priority interest in the Pledged Term Loan Priority Collateral or as a court of competent jurisdiction may otherwise direct.

(vi)Notwithstanding anything to the contrary herein:

(A)if, for any reason, any Second-Lien Obligations remain outstanding upon the Discharge of First-Lien Obligations, all rights of the First-Lien Security Agent hereunder and under the First-Lien Security Documents (1) with respect to the delivery and control of any part of the Term Loan Priority Collateral, and (2) to direct, instruct, vote upon or otherwise influence the maintenance or disposition of such Term Loan Priority Collateral, shall immediately, and (to the extent permitted by law) without further action on the part of either of the Second-Lien Security Agent or the First-Lien Security Agent, pass to the Second-Lien Security Agent, who shall thereafter hold such rights for the benefit of the Second-Lien Secured Parties.  Each of the First-Lien Security Agent and the Grantors agrees that it will, if any Second-Lien Obligations remain outstanding upon the Discharge of First-Lien Obligations, take any other action required by any applicable law or reasonably requested by the Second-Lien Security Agent (at the sole cost and expense of the Grantors), in connection with the Second-Lien Security Agent’s establishment and perfection of a First Priority security interest in the Term Loan Priority Collateral to the extent required by the Second-Lien Documents; and

(B)if, for any reason, any ABL Obligations remain outstanding upon the Discharge of First-Lien Obligations and the Discharge of Second-Lien Obligations, all rights of the First-Lien Security Agent hereunder and under the First-Lien Security Documents, and all rights of the Second-Lien Security Agent hereunder and under the Second-Lien Security Documents (1) with respect to the delivery and control of any part of the Term Loan Priority Collateral, and (2) to direct, instruct, vote upon or otherwise influence the maintenance or disposition of such Term Loan Priority Collateral, shall immediately, and (to the extent permitted by law) without further action on the part of the ABL Agent, the First-Lien Security Agent or the Second-Lien Security

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Agent, pass to the ABL Agent, who shall thereafter hold such rights for the benefit of the ABL Secured Parties.  Each of the First-Lien Security Agent, the Second-Lien Security Agent and the Grantors agrees that it will, if any ABL Obligations remain outstanding upon the Discharge of First-Lien Obligations and the Discharge of Second-Lien Obligations, take any other action required by any applicable domestic law or reasonably requested by the ABL Agent (at the sole cost and expense of the Grantors), in connection with the ABL Agent’s establishment and perfection of a First Priority security interest in the Term Loan Priority Collateral to the extent required by the ABL Documents.

(vii)Notwithstanding anything to the contrary contained herein, if for any reason, prior to the Discharge of ABL Obligations, the First-Lien Security Agent acquires possession of any Pledged ABL Priority Collateral, the First-Lien Security Agent shall hold same as bailee and/or agent to the same extent as is provided in preceding clause (i) with respect to Pledged Term Loan Priority Collateral, provided that as soon as is practicable the First-Lien Security Agent shall deliver or cause to be delivered such Pledged ABL Priority Collateral to the ABL Agent in a manner otherwise consistent with the requirements of preceding clause (v).

(g)Bailee for Perfection — Second-Lien Security Agent.

(i)After the Discharge of First-Lien Obligations has occurred, and to the extent that the Second-Lien Security Agent is in possession or control (or in the possession or control of its agents or bailees) of any Pledged Term Loan Priority Collateral, the Second-Lien Security Agent agrees to hold or control such Pledged Term Loan Priority Collateral as security agent for the Second-Lien Secured Parties and as bailee for and, with respect to any Term Loan Priority Collateral that cannot be perfected in such manner, as agent for, the ABL Agent, on behalf of itself and the ABL Secured Parties, and any assignee thereof solely for the purpose of perfecting the security interest granted under the Second-Lien Documents and the ABL Documents, respectively, subject to the terms and conditions of this Section 3.4(g).

(ii)Subject to the terms of this Agreement, after the Discharge of First-Lien Obligations has occurred and until the Discharge of Second-Lien Obligations has occurred, the Second-Lien Security Agent shall be entitled to deal with the Pledged Term Loan Priority Collateral in accordance with the terms of the Second-Lien Documents as if the Liens of the ABL Agent under the ABL Security Documents did not exist.  The rights of the ABL Agent and the ABL Secured Parties shall at all times be subject to the terms of this Agreement and to the Second-Lien Security Agent’s rights under the Second-Lien Documents.

(iii)The Second-Lien Security Agent shall have no obligation whatsoever to any Second-Lien Secured Party, the ABL Agent or any ABL Secured Party to ensure that the Pledged Term Loan Priority Collateral is genuine or owned by any of the Grantors or to preserve rights or benefits of any Person except as expressly set forth in this Section 3.4(g).  The duties or responsibilities of the Second-Lien Security Agent under this Section 3.4(g) shall be limited solely to holding the Pledged Term Loan Priority Collateral as bailee or agent in accordance with this Section 3.4(g).

(iv)The Second-Lien Security Agent acting pursuant to this Section 3.4(g) shall not have by reason of the ABL Documents, the First-Lien Security Documents, Second-Lien Security Documents, this Agreement or any other document a fiduciary relationship in respect of any Second-Lien Secured Party, the First-Lien Security Agent, any First-Lien Secured Party, the ABL Agent or any ABL Secured Party.

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(v)Following the Discharge of First-Lien Obligations and upon the Discharge of Second-Lien Obligations, the Second-Lien Security Agent shall deliver or cause to be delivered the remaining Pledged Term Loan Priority Collateral (if any) in its possession or in the possession of its agents or bailees, together with any necessary endorsements, (A) first, to the ABL Agent to the extent ABL Obligations remain outstanding and (B) second, to the applicable Grantor to the extent no First-Lien Obligations, Second-Lien Obligations or ABL Obligations remain outstanding (in each case, so as to allow such Person to obtain control of such Pledged Term Loan Priority Collateral) and will cooperate with the ABL Agent or such Grantor, as the case may be, in assigning (without recourse to or warranty by the Second-Lien Security Agent or any Second-Lien Secured Party or agent or bailee thereof) control over any other Pledged Term Loan Priority Collateral under its control.  The Second-Lien Security Agent further agrees to take all other action reasonably requested by such Person (at the sole cost and expense of the Grantors) in connection with such Person obtaining a first priority interest in the Pledged Term Loan Priority Collateral or as a court of competent jurisdiction may otherwise direct.

(vi)Notwithstanding anything to the contrary herein, if, for any reason, any ABL Obligations remain outstanding following the Discharge of First-Lien Obligations and the Discharge of Second-Lien Obligations, all rights of the Second-Lien Security Agent hereunder and under the Second-Lien Security Documents (1) with respect to the delivery and control of any part of the Term Loan Priority Collateral, and (2) to direct, instruct, vote upon or otherwise influence the maintenance or disposition of such Term Loan Priority Collateral, shall immediately, and (to the extent permitted by law) without further action on the part of either of the ABL Agent or the Second-Lien Security Agent, pass to the ABL Agent, who shall thereafter hold such rights for the benefit of the ABL Secured Parties.  Each of the Second-Lien Security Agent and the Grantors agrees that it will, if any ABL Obligations remain outstanding following the Discharge of First-Lien Obligations and the Discharge of Second-Lien Obligations, take any other action required by any applicable domestic law or reasonably requested by the ABL Agent (at the sole cost and expense of the Grantors), in connection with the ABL Agent’s establishment and perfection of a first priority security interest in the Term Loan Priority Collateral to the extent required by the ABL Documents.

(vii)Notwithstanding anything to the contrary contained herein, if for any reason, prior to the Discharge of ABL Obligations, the Second-Lien Security Agent acquires possession of any Pledged ABL Priority Collateral, the Second-Lien Security Agent shall hold same as bailee and/or agent to the same extent as is provided in the preceding clause (i) with respect to Pledged Term Loan Priority Collateral, provided that as soon as is practicable Second-Lien Security Agent shall deliver or cause to be delivered such Pledged ABL Priority Collateral to the ABL Agent in a manner otherwise consistent with the requirements of preceding clause (v).

(h)When Discharge of First-Lien Obligations Deemed to Not Have Occurred.  Notwithstanding anything to the contrary herein, if concurrently with (or immediately after) the Discharge of First-Lien Obligations, the Company or any other Grantor enters into any Permitted Refinancing of any First-Lien Priority Obligations and provides the notice referred to in the following sentence, then such Discharge of First-Lien Obligations shall automatically be deemed not to have occurred for all purposes of this Agreement, and the obligations under the Permitted Refinancing shall automatically be treated as First-Lien Priority Obligations (together with the First-Lien Secured Hedging Agreements on the basis provided in the definition of “First-Lien Documents” contained herein) for all purposes of this Agreement, including for purposes of the Lien priorities and rights in respect of Collateral set forth herein, the term “First-Lien Credit Agreement” shall be deemed appropriately modified to refer to such Permitted Refinancing and the First-Lien Security Agent under such First-Lien

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Documents shall be a First-Lien Security Agent for all purposes hereof and the new secured parties under such First-Lien Documents shall automatically be treated as First-Lien Secured Parties for all purposes of this Agreement.  Upon receipt of a notice from the Company stating that the Company or any other Grantor has entered into a new First-Lien Document in respect of a Permitted Refinancing of First-Lien Obligations (which notice shall include the identity of the new security agent, such agent, the “New First-Lien Agent”), and delivery by the New First-Lien Agent of an Intercreditor Agreement Joinder, each of the Second-Lien Security Agent and the ABL Agent shall promptly (i) enter into such documents and agreements (including amendments or supplements to this Agreement) as the Company or such New First-Lien Agent shall reasonably request in order to provide to the New First-Lien Agent the rights contemplated hereby, in each case consistent in all material respects with the terms of this Agreement and (ii) deliver to the New First-Lien Agent any Pledged Term Loan Priority Collateral held by the Second-Lien Security Agent or the ABL Agent, as the case may be, together with any necessary endorsements (or otherwise allow the New First-Lien Agent to obtain control of such Pledged Term Loan Priority Collateral), in each case, at the sole cost and expense of the Company.  The New First-Lien Agent shall agree to be bound by the terms of this Agreement.  If the new First-Lien Priority Obligations under the new First-Lien Documents are secured by assets of the Grantors of the type constituting Term Loan Priority Collateral that do not also secure the Second-Lien Priority Obligations or the ABL Priority Obligations, as the case may be, then the Second-Lien Priority Obligations or the ABL Priority Obligations, as the case may be, shall be secured at such time by a Second Priority Lien and Third Priority Lien, respectively, on such assets to the same extent provided in the Second-Lien Security Documents and the ABL Security Documents, as the case may be, with respect to the other Term Loan Priority Collateral.  If the new First-Lien Priority Obligations under the new First-Lien Documents are secured by assets of the Grantors of the type constituting ABL Priority Collateral that do not also secure the ABL Priority Obligations or the Second-Lien Priority Obligations, then the ABL Priority Obligations and the Second-Lien Priority Obligations shall be secured at such time by a First Priority Lien and a Third Priority Lien, respectively, on such assets to the same extent provided in the ABL Security Documents and the Second-Lien Security Documents, as the case may be, with respect to the other ABL Priority Collateral.

(i)When Discharge of Second-Lien Obligations Deemed to Not Have Occurred.  Notwithstanding anything to the contrary herein, if concurrently with (or immediately after) the Discharge of Second-Lien Obligations, the Company or any other Grantor enters into any Permitted Refinancing of any Second-Lien Priority Obligations and provides the notice referred to in the following sentence, then such Discharge of Second-Lien Obligations shall automatically be deemed not to have occurred for all purposes of this Agreement, and the obligations under the Permitted Refinancing shall automatically be treated as Second-Lien Priority Obligations for all purposes of this Agreement, including for purposes of the Lien priorities and rights in respect of Collateral set forth herein, the term “Second-Lien Credit Agreement” shall be deemed appropriately modified to refer to such Permitted Refinancing and the Second-Lien Security Agent under such Second-Lien Documents shall be a Second-Lien Security Agent for all purposes hereof and the new secured parties under such Second-Lien Documents shall automatically be treated as Second-Lien Secured Parties for all purposes of this Agreement.  Upon receipt of a notice from the Company stating that the Company or any other Grantor has entered into a new Second-Lien Document in respect of a Permitted Refinancing of Second-Lien Obligations (which notice shall include the identity of the new security agent, such agent, the “New Second-Lien Agent”), and delivery by the New Second-Lien Agent of an Intercreditor Agreement Joinder, each of the First-Lien Security Agent and the ABL Agent shall promptly (i) enter into such documents and agreements (including amendments or supplements to this Agreement) as the Company or such New Second-Lien Agent shall reasonably request in order to provide to the New Second-Lien Agent the rights contemplated hereby, in each case consistent in all material respects with the terms of this Agreement and (ii) following the Discharge of First-Lien Obligations, deliver to the New Second-Lien Agent any Pledged Term Loan Priority Collateral held by the ABL Agent, together with any necessary endorsements (or otherwise allow the New Second-Lien Agent to obtain control of such Pledged Term Loan Priority Collateral).  The New Second-Lien Agent shall agree to be bound by the terms of this Agreement.  If the new Second-Lien

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Priority Obligations under the new Second-Lien Documents are secured by assets of the Grantors of the type constituting Term Loan Priority Collateral that do not also secure the First-Lien Priority Obligations or the ABL Priority Obligations, then the First-Lien Priority Obligations or the ABL Priority Obligations, as the case may be, shall be secured at such time by a First Priority Lien and Third Priority Lien, respectively, on such assets to the same extent provided in the First-Lien Security Documents and the ABL Security Documents, as the case may be, with respect to the other Term Loan Priority Collateral.  If the new Second-Lien Priority Obligations under the new Second-Lien Documents are secured by assets of the Grantors of the type constituting ABL Priority Collateral that do not also secure the ABL Priority Obligations or the First-Lien Priority Obligations, then the ABL Priority Obligations and the First-Lien Priority Obligations shall be secured at such time by a First Priority Lien and a Second Priority Lien, respectively, on such assets to the same extent provided in the ABL Security Documents and the First-Lien Security Documents, as the case may be, with respect to the other ABL Priority Collateral.

3.5Insolvency or Liquidation Proceedings.

(a)Finance and Sale Issues — First-Lien Obligations.  Until the Discharge of First-Lien Obligations has occurred, if the Company or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding and the First-Lien Security Agent shall desire to permit the use of cash collateral (as such term is defined in Section 363(a) of the Bankruptcy Code) constituting Term Loan Priority Collateral or to permit the Company or any other Grantor to obtain financing, whether from the First-Lien Secured Parties or any other entity under Section 364 of the Bankruptcy Code or any similar Bankruptcy Law that is secured by a lien that is (i) senior or pari passu with the liens on the Term Loan Priority Collateral securing the First-Lien Priority Obligations, and (ii) junior to the liens on the ABL Priority Collateral securing the ABL Priority Obligations (each, a “First-Lien DIP Financing”), then each of the Second-Lien Security Agent, on behalf of itself and the Second-Lien Secured Parties, and the ABL Agent, on behalf of itself and the ABL Secured Parties, agrees that it will not oppose or raise any objection to or contest (or join with or support any third party opposing, objecting or contesting) such use of cash collateral constituting Term Loan Priority Collateral or to the fact that such First-Lien DIP Financing may be granted Liens on the Collateral and will not request adequate protection or any other relief in connection therewith (except, as expressly agreed by the First-Lien Security Agent or to the extent permitted by Section 3.5(c) and 5.4(a)) and, the Second-Lien Security Agent and the ABL Agent will each subordinate their Liens in the Term Loan Priority Collateral to the Liens securing such First-Lien DIP Financing (and all interest and other obligations relating thereto); provided that (i) each of the Second-Lien Security Agent, the other Second-Lien Secured Parties, the ABL Agent and the other ABL Secured Parties retain a Lien on the Collateral to secure the Second-Lien Priority Obligations and the ABL Priority Obligations, as the case may be, and, with respect to the ABL Priority Collateral only, with the same priority as existed prior to the commencement of the Insolvency or Liquidation Proceeding, (ii) to the extent that the First-Lien Security Agent is granted adequate protection in the form of a Lien and/or a superpriority administrative claim, the Second-Lien Security Agent and the ABL Agent are permitted to seek (without objection from the First-Lien Security Agent or any First-Lien Secured Party) a Lien on Collateral arising after the commencement of the Insolvency or Liquidation Proceeding and/or a superpriority administrative claim, as applicable (so long as, with respect to Term Loan Priority Collateral, such Lien is junior to the Liens securing such First-Lien DIP Financing and the First-Lien Priority Obligations and such superpriority administrative claim is junior to the superpriority administrative claim granted to the First-Lien Security Agent), (iii) the terms of such First-Lien DIP Financing or use of cash collateral do not require any Grantor to seek approval for any Plan of Reorganization that is inconsistent with this Agreement and (iv) the aggregate principal amount of such First-Lien DIP Financing (exclusive of any Interest Rate Protection Agreement or Other Hedging Agreement, to the extent constituting principal) does not exceed the Maximum Exposure Amount.  The Second-Lien Security Agent, on behalf of the Second-Lien Secured Parties, and the ABL Agent, on behalf of the ABL Secured Parties, agree that they will not raise any objection or oppose a sale or other

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disposition of any Term Loan Priority Collateral free and clear of its Liens (subject to attachment of proceeds with respect to the Second Priority Lien on the Term Loan Priority Collateral in favor of the Second-Lien Security Agent and the Third Priority Lien on the Term Loan Priority Collateral in favor of the ABL Agent, respectively, in the same order and manner as otherwise set forth herein) or other claims under Section 363 of the Bankruptcy Code, except for any objection or opposition that could be asserted by any Second-Lien Secured Party or ABL Secured Party, as the case may be, as an unsecured creditor in any such Insolvency or Liquidation Proceeding, if the First-Lien Secured Parties have consented to such sale or disposition of such assets; provided that the Second-Lien Security Agent, the other Second-Lien Secured Parties, the ABL Agent and the other ABL Secured Parties shall be entitled to seek and exercise Credit Bid Rights in respect of any such sale or disposition.

(b)Relief from the Automatic Stay.

(i)Until the Discharge of First-Lien Obligations has occurred, each of the Second-Lien Security Agent, on behalf of itself and the Second-Lien Term Secured Parties, and the ABL Agent, on behalf of itself and the ABL Secured Parties, agrees that none of them shall seek (or support any other person seeking) relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding in respect of the Term Loan Priority Collateral without the prior written consent of the First-Lien Security Agent.

(ii)Until the Discharge of Second-Lien Obligations has occurred, the ABL Agent, on behalf of itself and the ABL Secured Parties, agrees that none of them shall seek (or support any other person seeking) relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding in respect of the Term Loan Priority Collateral without the prior written consent of the Second-Lien Security Agent.

(c)Adequate Protection.

(i)Each of the ABL Agent, on behalf of itself and the ABL Secured Parties, and the Second-Lien Security Agent, on behalf of itself and the Second-Lien Secured Parties, agrees that none of them shall contest (or support any other Person contesting) (i) any request by the First-Lien Security Agent or the First-Lien Secured Parties for adequate protection with respect to any Term Loan Priority Collateral, (ii) so long as the request of adequate protection is in the form of a replacement lien on the ABL Priority Collateral that is junior to the liens on the ABL Priority Collateral securing the ABL Priority Obligations, any request by the First-Lien Security Agent or the First-Lien Secured Parties for adequate protection with respect to any ABL Priority Collateral, or (iii) any objection by the First-Lien Security Agent or the First-Lien Secured Parties to any motion, relief, action or proceeding based on the First-Lien Security Agent or the First-Lien Secured Parties claiming a lack of adequate protection with respect to the Term Loan Priority Collateral.  Notwithstanding the foregoing provisions in this Section 3.5(c), in any Insolvency or Liquidation Proceeding, (A) if the First-Lien Secured Parties (or any subset thereof) are granted adequate protection in the form of additional collateral in the nature of assets constituting Term Loan Priority Collateral and/or a superpriority administrative claim in connection with any First-Lien DIP Financing or use of cash collateral constituting Term Loan Priority Collateral, then each of the ABL Agent, on behalf of itself or any of the ABL Secured Parties, or the Second-Lien Security Agent, on behalf of itself or any of the Second-Lien Secured Parties, as the case may be, may seek or request adequate protection in the form of a Lien on such additional collateral and/or a superpriority administrative claim (as applicable), which Lien and/or claim will be subordinated to the Liens securing the First-Lien Obligations and such First-Lien DIP Financing (and all obligations relating thereto) or superpriority claim granted to the First-Lien Security Agent on the same basis as the other Liens on, or claims with respect to, Term Loan Priority Collateral

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securing the Second-Lien Obligations or ABL Obligations, as the case may be, are so subordinated to the First-Lien Obligations under this Agreement, and (B) in the event the ABL Agent, on behalf of itself and the ABL Secured Parties, and the Second-Lien Security Agent, on behalf of itself and the Second-Lien Secured Parties, as the case may be, seeks or requests adequate protection in respect of Term Loan Priority Collateral securing ABL Obligations or Second-Lien Obligations, as the case may be, and such adequate protection is granted in the form of additional collateral in the nature of assets constituting Term Loan Priority Collateral and/or a superpriority administrative claim, then each of the ABL Agent, on behalf of itself and the ABL Secured Parties, and the Second-Lien Security Agent, on behalf of itself or any of the Second-Lien Secured Parties, agrees that the First-Lien Security Agent shall also be granted a senior Lien on such additional collateral as security for the First-Lien Obligations and for any such First-Lien DIP Financing and/or a superpriority administrative claim (as applicable) and that any Lien on such additional collateral securing the ABL Obligations or the Second-Lien Obligations and/or superpriority claim, as the case may be, shall be subordinated to the Liens on such collateral securing the First-Lien Obligations, and any such First-Lien DIP Financing (and all obligations relating thereto) and to any other Liens and superpriority claims granted to the First-Lien Secured Parties, as adequate protection on the same basis as the other Liens on, and claims with respect to, Term Loan Priority Collateral securing the ABL Obligations or the Second-Lien Obligations, as the case may be, are so subordinated to such First-Lien Obligations under this Agreement.

(ii)The ABL Agent, on behalf of itself and the ABL Secured Parties, agrees that none of them shall contest (or support any other Person contesting) (i) any request by the Second-Lien Security Agent or the Second-Lien Secured Parties for adequate protection with respect to any Term Loan Priority Collateral, (ii) so long as the request of adequate protection is in the form of a replacement lien on the ABL Priority Collateral that is junior to the liens on the ABL Priority Collateral securing the ABL Priority Obligations and/or a superpriority administrative claim that is junior to any superpriority claim granted to the ABL Agent with respect to the ABL Priority Collateral, any request by the Second-Lien Security Agent or the Second-Lien Secured Parties for adequate protection with respect to any ABL Priority Collateral, or (iii) any objection by the Second-Lien Security Agent or the Second-Lien Secured Parties to any motion, relief, action or proceeding based on the Second-Lien Security Agent or the Second-Lien Secured Parties claiming a lack of adequate protection with respect to the Term Loan Priority Collateral.

Section 4.  ABL Priority Collateral.

4.1Exercise of Remedies — Prior to Discharge of ABL Obligations.

(a)So long as the Discharge of ABL Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor:

(i)none of the First-Lien Security Agent, any of the First-Lien Secured Parties, the Second-Lien Security Agent or any of the Second-Lien Secured Parties (x) will exercise or seek to exercise any rights or remedies (including, without limitation, set off) with respect to any ABL Priority Collateral (including, without limitation, the exercise of any right under any lockbox agreement, account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement in respect of ABL Priority Collateral to which the First-Lien Security Agent, any First-Lien Secured Party, the Second-Lien Security Agent or any Second-Lien Secured Party, as the case may be, is a party) or institute or commence or join with any Person (other than the ABL Agent and the ABL Secured Parties) in commencing any action or proceeding with respect to such rights or remedies (including any action of foreclosure, enforcement, collection or

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execution); provided, however, that (A) the First-Lien Security Agent may exercise any or all such rights in accordance with the First-Lien Documents after the passage of a period of 120 days from the date of delivery of a notice in writing (the “First-Lien/ABL Notice”) to the ABL Agent of the First-Lien Security Agent’s intention to exercise its right to take such actions (the “First-Lien Standstill Period”) and (B) the Second-Lien Security Agent may exercise any or all such rights in accordance with the Second-Lien Documents after the passage of a period of 180 days from the date of delivery of a notice in writing (the “Second-Lien/ABL Notice”) to the ABL Agent of the Second-Lien Security Agent’s intention to exercise its right to take such actions (the “Second-Lien ABL Priority Collateral Standstill Period”); provided, further, however, notwithstanding anything herein to the contrary, none of the First-Lien Security Agent, any First-Lien Secured Party, the Second-Lien Security Agent or any Second-Lien Secured Party will exercise any rights or remedies with respect to any ABL Priority Collateral if, notwithstanding the expiration of the First-Lien Standstill Period and/or Second-Lien ABL Priority Collateral Standstill Period, as the case may be, the ABL Agent or ABL Secured Parties shall have commenced and be diligently pursuing in good faith the exercise of any of their rights or remedies with respect to a material portion of the ABL Priority Collateral (prompt notice of such exercise to be given to the First-Lien Security Agent and the Second-Lien Security Agent), (y) will contest, protest or object to any foreclosure proceeding or action brought by the ABL Agent or any ABL Secured Party with respect to, or any other exercise by the ABL Agent or any ABL Secured Party of any rights and remedies relating to, the ABL Priority Collateral under the ABL Documents or otherwise, and (z) subject to their rights under clause (i)(x) above, will object to the forbearance by the ABL Agent or the ABL Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the ABL Priority Collateral, in each case so long as the respective interests of the First-Lien Secured Parties attach to the proceeds thereof subject to the relative priorities described in Section 2; provided, however, that nothing in this Section 4.1(a) shall be construed to authorize the First-Lien Security Agent, any First-Lien Secured Party, the Second-Lien Security Agent or any Second-Lien Secured Party, as the case may be, to sell any ABL Priority Collateral free of the Lien of the ABL Agent or any ABL Secured Party; and provided further, that no (i) First-Lien/ABL Notice may be given or issued unless an event of default under the First-Lien Obligations  has occurred and is continuing and the maturity of the First-Lien Obligations has been accelerated (or the First-Lien Obligations have not been paid at the final maturity date thereof) and (ii) Second-Lien/ABL Notice may be given or issued unless an event of default under the Second-Lien Obligations has occurred and is continuing and the maturity of the Second-Lien Obligations have been accelerated (or the Second-Lien Obligations have not been paid at the final maturity date thereof); and

(ii)subject to clause (i)(x) above, the ABL Agent and the ABL Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including set off and the right to credit bid their debt) and make determinations regarding the disposition of, or restrictions with respect to, the ABL Priority Collateral without any consultation with or the consent of the First-Lien Security Agent, any First-Lien Secured Party, the Second-Lien Security Agent or any Second-Lien Secured Party; provided, that:

(1)in any Insolvency or Liquidation Proceeding commenced by or against Parent, Holdings, the Company or any other Grantor, the First-Lien Security Agent, any First-Lien Secured Party, the Second-Lien Security Agent and any Second-Lien Secured Party may file a claim or statement of interest with respect to the ABL Obligations;

(2)any of the First-Lien Security Agent, any First-Lien Secured Party, the Second-Lien Security Agent and any Second-Lien Secured Party may take any action (not

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adverse to the priority status of the Liens on the ABL Priority Collateral securing the ABL Obligations, or the rights of any ABL Agent or the ABL Secured Parties to exercise remedies in respect thereof)  in accordance with the First-Lien Documents or the Second-Lien Documents, as the case may be, in order to preserve or protect its Lien on the ABL Priority Collateral;

(3)each of the First-Lien Secured Parties and the Second-Lien Secured Parties shall be entitled to file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any Person objecting to or otherwise seeking the disallowance of the claims of the First-Lien Secured Parties or the Second-Lien Secured Parties, as the case may be, including without limitation any claims secured by the ABL Priority Collateral, if any, in each case in accordance with the terms of this Agreement;

(4)each of the First-Lien Secured Parties and the Second-Lien Secured Parties shall be entitled to file any pleadings, objections, motions or agreements which assert rights or interests available to unsecured creditors of the Grantors arising under either the Bankruptcy Law or applicable non-bankruptcy law, in each case in accordance with the terms of this Agreement and to the extent not prohibited by any other provision of this Agreement;

(5)each of the First-Lien Secured Parties and the Second-Lien Secured Parties shall be entitled to vote on any plan of reorganization and file any proof of claim in an Insolvency or Liquidation Proceeding or otherwise and other filings and make any arguments and motions that are, in each case, in accordance with the terms of this Agreement, with respect to the ABL Priority Collateral;

(6)each of the First-Lien Security Agent or any First-Lien Secured Party may exercise any of its rights or remedies with respect to the ABL Priority Collateral in accordance with the First-Lien Documents after the termination of the First-Lien Standstill Period to the extent permitted by clause (i)(x) above; and

(7)each of the Second-Lien Security Agent or any Second-Lien Secured Party may exercise any of its rights or remedies with respect to the ABL Priority Collateral in accordance with the Second-Lien Documents after the termination of the Second-Lien ABL Priority Collateral Standstill Period to the extent permitted by clause (i)(x) above.

Subject to clause (i)(x) above, in exercising rights and remedies with respect to the ABL Priority Collateral, the ABL Agent and the ABL Secured Parties may enforce the provisions of the ABL Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion.  Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of ABL Priority Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC of any applicable jurisdiction and of a secured creditor under any other applicable law.

(b)Each of the First-Lien Security Agent, on behalf of itself and the First-Lien Secured Parties, and the Second-Lien Security Agent, on behalf of itself and the Second-Lien Secured Parties, agrees that it will not take or receive any ABL Priority Collateral or any proceeds of ABL Priority Collateral in connection with the exercise of any right or remedy (including set off) with respect to any ABL Priority Collateral unless and until the Discharge of ABL Obligations has occurred, except as expressly provided in the first proviso in clause (i)(x) of Section 4.1(a) or in the proviso in clause (ii) of

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Section 4.1(a).  Without limiting the generality of the foregoing, unless and until the Discharge of ABL Obligations has occurred, except as expressly provided in the first proviso in clause (i)(x) of Section 4.1(a) or in the proviso in clause (ii) of Section 4.1(a), the sole right of the First-Lien Security Agent and the First-Lien Secured Parties and the Second-Lien Security Agent and the Second-Lien Secured Parties with respect to the ABL Priority Collateral is to hold a Lien on the ABL Priority Collateral pursuant to the First-Lien Documents or Second-Lien Documents, as the case may be, for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of ABL Obligations has occurred in accordance with the terms hereof, the ABL Documents and applicable domestic law.

(c)Subject to the first proviso in clause (i)(x) of Section 4.1(a), and the proviso in clause (ii) of Section 4.1(a):

(i)each of the First-Lien Security Agent, on behalf of itself and the First-Lien Secured Parties, and the Second-Lien Security Agent, on behalf of itself and the Second-Lien Secured Parties, agrees that the First-Lien Security Agent and the First-Lien Secured Parties and  the Second-Lien Security Agent and the Second-Lien Secured Parties, as the case may be, will not take any action that would hinder, delay, limit or prohibit any exercise of remedies under the ABL Documents with respect to the ABL Priority Collateral, including any collection, sale, lease, exchange, transfer or other disposition of the ABL Priority Collateral, whether by foreclosure or otherwise, or that would limit, invalidate, avoid or set aside any Lien or ABL Security Document with respect to the ABL Priority Collateral or subordinate the priority of the ABL Obligations to the First-Lien Obligations or the Second-Lien Obligations, as the case may be, with respect to the ABL Priority Collateral or grant the Liens with respect to the ABL Priority Collateral securing the First-Lien Obligations or the Second-Lien Obligations, as the case may be, equal ranking to the Liens with respect to the ABL Priority Collateral securing the ABL Obligations; and

(ii)each of the First-Lien Security Agent, on behalf of itself and the First-Lien Secured Parties, and the Second-Lien Security Agent, on behalf of itself and the Second-Lien Secured Parties, hereby waives any and all rights it or the First-Lien Secured Parties or the Second-Lien Secured Parties, as the case may be, may have as a junior lien creditor with respect to the ABL Priority Collateral or otherwise to object to the manner in which the ABL Agent or the ABL Secured Parties seek to enforce or collect the ABL Obligations or the Liens granted in any of the ABL Priority Collateral in any such case except to the extent such enforcement or collection is in violation of the terms of this Agreement, regardless of whether any action or failure to act by or on behalf of the ABL Agent or ABL Secured Parties is adverse to the interest of the First-Lien Secured Parties or the Second-Lien Secured Parties, as the case may be.

(d)Each of the First-Lien Security Agent, for itself and on behalf of the First-Lien Secured Parties, and the Second-Lien Security Agent, for itself and on behalf of the Second-Lien Secured Parties, hereby acknowledges and agrees that no covenant, agreement or restriction contained in any First-Lien Document or Second-Lien Document, as the case may be (other than this Agreement to the extent expressly set forth herein) shall be deemed to restrict in any way the rights and remedies of the ABL Agent or the ABL Secured Parties with respect to the ABL Priority Collateral as set forth in this Agreement and the ABL Documents.

4.2Exercise of Remedies — After Discharge of ABL Obligations.

(a)After the Discharge of ABL Obligations has occurred and so long as the Discharge of First-Lien Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor:

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(i)neither the Second-Lien Security Agent nor any of the Second-Lien Secured Parties (x) will exercise or seek to exercise any rights or remedies (including, without limitation, set-off) with respect to any ABL Priority Collateral (including, without limitation, the exercise of any right under any lockbox agreement, account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement in respect of ABL Priority Collateral to which the Second-Lien Security Agent or any Second-Lien Secured Party is a party) or institute or commence or join with any Person (other than the First-Lien Security Agent and the First-Lien Secured Parties) in commencing any action or proceeding with respect to such rights or remedies (including any action of foreclosure, enforcement, collection or execution); provided, however, that the Second-Lien Security Agent may exercise any or all such rights in accordance with the Second-Lien Documents after the passage of a period of 120 days from the date of delivery of a notice in writing (the “Second-Lien/First-Lien Notice”) to the First-Lien Security Agent of the Second-Lien Security Agent’s intention to exercise its right to take such actions (the “Second-Lien/First-Lien ABL Priority Collateral Standstill Period”); provided, further, however, notwithstanding anything herein to the contrary, neither the Second-Lien Security Agent nor any Second-Lien Secured Party will exercise any rights or remedies with respect to any ABL Priority Collateral if, notwithstanding the expiration of the Second-Lien/First-Lien ABL Priority Collateral Standstill Period, the First-Lien Security Agent or First-Lien Secured Parties shall have commenced and be diligently pursuing in good faith the exercise of any of their rights or remedies with respect to a material portion of the ABL Priority Collateral (prompt notice of such exercise to be given to the Second-Lien Security Agent), (y) will contest, protest or object to any foreclosure proceeding or action brought by the First-Lien Security Agent or any First-Lien Secured Party with respect to, or any other exercise by the First-Lien Security Agent or any First-Lien Secured Party of any rights and remedies relating to, the ABL Priority Collateral under the First-Lien Documents or otherwise, and (z) subject to its rights under clause (i)(x) above, will object to the forbearance by the First-Lien Security Agent or the First-Lien Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the ABL Priority Collateral, in each case so long as the respective interests of the Second-Lien Secured Parties attach to the proceeds thereof subject to the relative priorities described in Section 2.1; provided, however, that nothing in this Section 4.2(a) shall be construed to authorize the Second-Lien Security Agent or any Second-Lien Secured Party to sell any ABL Priority Collateral free of the Lien of the First-Lien Security Agent or any First-Lien Secured Party; and provided further, that no Second-Lien/First-Lien Notice may be given or issued unless an event of default under the Second-Lien Obligations has occurred and is continuing and the maturity of the Second-Lien Obligations has been accelerated (or the Second-Lien Obligations have not been paid at the final maturity date thereof); and

(ii)subject to clause (i)(x) above, the First-Lien Security Agent and the First-Lien Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including set off and the right to credit bid their debt) and make determinations regarding the disposition of, or restrictions with respect to, the ABL Priority Collateral without any consultation with or the consent of the Second-Lien Security Agent or any Second-Lien Secured Party; provided, that:

(1)in any Insolvency or Liquidation Proceeding commenced by or against Parent, Holdings, the Company or any other Grantor, the Second-Lien Security Agent and any Second-Lien Secured Party may file a claim or statement of interest with respect to the First-Lien Obligations;

(2)the Second-Lien Security Agent and any Second-Lien Secured Party may take any action (not adverse to the priority status of the Liens on the ABL Priority Collateral securing the First-Lien Obligations, or the rights of any First-Lien Security Agent or the First-

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Lien Secured Parties to exercise remedies in respect thereof) in accordance with the Second-Lien Documents in order to preserve or protect its Lien on the ABL Priority Collateral;

(3)the Second-Lien Secured Parties shall be entitled to file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any Person objecting to or otherwise seeking the disallowance of the claims of the Second-Lien Secured Parties, including without limitation any claims secured by the ABL Priority Collateral, if any, in each case in accordance with the terms of this Agreement;

(4)the Second-Lien Secured Parties shall be entitled to file any pleadings, objections, motions or agreements which assert rights or interests available to unsecured creditors of the Grantors arising under either the Bankruptcy Law or applicable non-bankruptcy law, in each case in accordance with the terms of this Agreement and to the extent not prohibited by any other provision of this Agreement;

(5)the Second-Lien Secured Parties shall be entitled to vote on any plan of reorganization and file any proof of claim in an Insolvency or Liquidation Proceeding or otherwise and other filings and make any arguments and motions that are, in each case, in accordance with the terms of this Agreement, with respect to the ABL Priority Collateral; and

(6)the Second-Lien Security Agent or any Second-Lien Secured Party may exercise any of its rights or remedies with respect to the ABL Priority Collateral in accordance with the Second-Lien Documents after the termination of the Second-Lien/First-Lien ABL Priority Collateral Standstill Period to the extent permitted by clause (i)(x) above.

Subject to clause (i)(x) above, in exercising rights and remedies with respect to the ABL Priority Collateral, the First-Lien Security Agent and the First-Lien Secured Parties may enforce the provisions of the First-Lien Documents and exercise remedies thereunder, all in such order and in such manner as it may determine in the exercise of its sole discretion.  Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of ABL Priority Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC of any applicable jurisdiction and of a secured creditor under any other applicable law.

(b)After the Discharge of ABL Obligations has occurred and so long as the Discharge of First-Lien Obligations has not occurred, the Second-Lien Security Agent, on behalf of itself and the Second-Lien Secured Parties, agrees that it will not take or receive any ABL Priority Collateral or any proceeds of ABL Priority Collateral in connection with the exercise of any right or remedy (including set-off) with respect to any ABL Priority Collateral, except as expressly provided in the second proviso in clause (i)(x) of Section 4.12(a).  Without limiting the generality of the foregoing, unless and until the Discharge of First-Lien Obligations has occurred, except as expressly provided in the second proviso in clause (i)(x) of Section 4.2(a), the sole right of the Second-Lien Security Agent and the Second-Lien Secured Parties with respect to the ABL Priority Collateral is to hold a Lien on the ABL Priority Collateral pursuant to the Second-Lien Documents for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of First-Lien Obligations has occurred in accordance with the terms hereof, the Second-Lien Documents and applicable law.

(c)After the Discharge of ABL Obligations has occurred and so long as the Discharge of First-Lien Obligations has not occurred, subject to the second proviso in clause (ix) of Section 4.2(a) and Section 6:

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(i)the Second-Lien Security Agent, on behalf of itself and the Second-Lien Secured Parties, agrees that the Second-Lien Security Agent and the Second-Lien Secured Parties will not take any action that would hinder, delay, limit or prohibit any exercise of remedies under the First-Lien Documents with respect to the ABL Priority Collateral, including any collection, sale, lease, exchange, transfer or other disposition of the ABL Priority Collateral, whether by foreclosure or otherwise, or that would limit, invalidate, avoid or set aside any Lien or First-Lien Security Document with respect to the ABL Priority Collateral or subordinate the priority of the First-Lien Obligations with respect to the Term Loan Priority Collateral or grant the Liens with respect to the ABL Priority Collateral securing the Second-Lien Obligations equal ranking to the Liens with respect to the ABL Priority Collateral securing the First-Lien Obligations, and

(ii)the Second-Lien Security Agent, on behalf of itself and the Second-Lien Secured Parties, hereby waives any and all rights it or the Second-Lien Secured Parties may have as a junior lien creditor with respect to the ABL Priority Collateral or otherwise to object to the manner in which the First-Lien Security Agent or the First-Lien Secured Parties seek to enforce or collect the First-Lien Obligations or the Liens granted in any of the ABL Priority Collateral in any such case except to the extent such enforcement or collection is in violation of the terms of this Agreement, regardless of whether any action or failure to act by or on behalf of the First-Lien Security Agent or First-Lien Secured Parties is adverse to the interest of the Second-Lien Secured Parties.

(d)The Second-Lien Security Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any Second-Lien Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the First-Lien Security Agent or the First-Lien Secured Parties with respect to the ABL Priority Collateral as set forth in this Agreement and the First-Lien Documents.

4.3Payments Over.

(a)Prior to Discharge of ABL Obligations.  So long as the Discharge of ABL Obligations has not occurred, any ABL Priority Collateral, Cash Proceeds thereof or non-Cash Proceeds constituting ABL Priority Collateral (or any distribution in respect of the ABL Priority Collateral, whether or not expressly characterized as such) received by the First-Lien Security Agent, any First-Lien Secured Parties, the Second-Lien Security Agent or any Second-Lien Secured Parties in connection with the exercise of any right or remedy (including set off) relating to the ABL Priority Collateral or otherwise that is inconsistent with this Agreement shall be segregated and held in trust and forthwith paid over to the ABL Agent, for the benefit of the ABL Secured Parties, for application in accordance with Section 7.2 below, in the same form as received, with any necessary endorsements or as a court of competent jurisdiction may otherwise direct.  The ABL Agent is hereby authorized to make any such endorsements as agent for the First-Lien Security Agent, any such First-Lien Secured Parties, the Second-Lien Security Agent or any such Second-Lien Secured Parties.  This authorization is coupled with an interest and is irrevocable until the Discharge of ABL Obligations.

(b)After Discharge of ABL Obligations.  After the Discharge of ABL Obligations has occurred and so long as the Discharge of First-Lien Obligations has not occurred, any ABL Priority Collateral, Cash Proceeds thereof or non-Cash Proceeds constituting ABL Priority Collateral (or any distribution in respect of the ABL Priority Collateral, whether or not expressly characterized as such) received by the Second-Lien Security Agent or any Second-Lien Secured Parties in connection with the exercise of any right or remedy (including set off) relating to the ABL Priority Collateral or otherwise that is inconsistent with this Agreement shall be segregated and held in trust and forthwith paid over to the First-Lien Security Agent, for the benefit of the First-Lien Secured Parties, for application in accordance

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with Section 7.1 below, in the same form as received, with any necessary endorsements or as a court of competent jurisdiction may otherwise direct.  The First-Lien Security Agent is hereby authorized to make any such endorsements as agent for the Second-Lien Security Agent or any such Second-Lien Secured Parties.  This authorization is coupled with an interest and is irrevocable until the Discharge of First-Lien Obligations.

4.4Other Agreements.

(a)Releases — ABL Obligations.

(i)If, in connection with:

(1)the exercise of any of the ABL Agent’s remedies in respect of the ABL Priority Collateral provided for in Section 4.1(a) (with the proceeds thereof being applied to the ABL Priority Obligations), including any sale, lease, exchange, transfer or other disposition of any such ABL Priority Collateral; or

(2)any sale, lease, exchange, transfer or other disposition of any ABL Priority Collateral permitted under the terms of the ABL Documents, the First-Lien Documents and the Second-Lien Documents (other than (A) in connection with the Discharge of ABL Obligations and (B) after the occurrence and during the continuance of any event of default under the First-Lien Credit Agreement or the Second-Lien Credit Agreement),

the ABL Agent, on behalf of itself and the ABL Secured Parties, releases any of its Liens on any part of the ABL Priority Collateral, then the Liens, if any, of the First-Lien Security Agent, for itself and on behalf of the First-Lien Secured Parties, and the Second-Lien Security Agent, for itself and on behalf of the Second-Lien Secured Parties, on such ABL Priority Collateral (but not the Proceeds thereof, which shall be subject to the priorities set forth in this Agreement) shall be automatically, unconditionally and simultaneously released and the First-Lien Security Agent, for itself and on behalf of the First-Lien Secured Parties, and the Second-Lien Security Agent, for itself and on behalf of the Second-Lien Secured Parties, promptly shall execute and deliver to the ABL Agent or such Grantor such termination statements, releases and other documents (at such Grantor’s expense) as the ABL Agent or such Grantor may reasonably request to effectively confirm such release.

(ii)Until the Discharge of ABL Obligations occurs, each of the First-Lien Security Agent, on behalf of itself and the First-Lien Secured Parties, and the Second-Lien Security Agent, on behalf of itself and the Second-Lien Secured Parties, hereby irrevocably constitutes and appoints the ABL Agent and any officer or agent of the ABL Agent, with full power of substitution, as its true and lawful attorney in fact with full irrevocable power and authority in the place and stead of the First-Lien Security Agent, the Second-Lien Security Agent or such Secured Party, as the case may be, or in the ABL Agent’s own name, from time to time in the ABL Agent’s discretion, for the purpose of carrying out the terms of this Section 4.4(a) with respect to ABL Priority Collateral, to take any and all appropriate action and to execute any and all documents and instruments which may be necessary to accomplish the purposes of this Section 4.4(a) with respect to ABL Priority Collateral, including any endorsements or other instruments of transfer or release.

(iii)Until the Discharge of ABL Obligations occurs, to the extent that the ABL Secured Parties (a) have released any Lien on ABL Priority Collateral and any such Lien is later reinstated or (b) obtain any new First Priority Liens on assets constituting ABL Priority Collateral

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from Grantors, then (x) the First-Lien Secured Parties shall be granted a Second Priority Lien and (y) the Second-Lien Secured Parties shall be granted a Third Priority Lien (or, after the Discharge of First-Lien Obligations has occurred, a Second Priority Lien), on any such ABL Priority Collateral.

(iv)If, prior to the Discharge of ABL Obligations, a subordination of the ABL Agent’s Lien on any ABL Priority Collateral is permitted under the ABL Credit Agreement, the First-Lien Credit Agreement and the Second-Lien Credit Agreement to another Lien permitted under the ABL Credit Agreement, the First-Lien Credit Agreement and the Second-Lien Credit Agreement (for purposes of this clause (iv), an “ABL Collateral Priority Lien”), then the ABL Agent is authorized to execute and deliver a subordination agreement with respect thereto in form and substance satisfactory to it, and the First-Lien Security Agent, on behalf of itself and the First-Lien Secured Parties, and the Second-Lien Security Agent, on behalf of itself and the Second-Lien Secured Parties, shall each promptly execute and deliver to the ABL Agent an identical subordination agreement subordinating the Liens of the First-Lien Security Agent, for itself and for the benefit of the First-Lien Secured Parties, and the Second-Lien Security Agent, for itself and for the benefit of the Second-Lien Secured Parties, respectively, to such ABL Collateral Priority Lien.

(b)Releases — First-Lien Obligations.

(i)After the Discharge of ABL Obligations has occurred and so long as the Discharge of First-Lien Obligations has not occurred, if, in connection with:

(1)the exercise of any First-Lien Security Agent’s remedies in respect of the ABL Priority Collateral provided for in Section 4.1(a) (with the proceeds thereof being applied to the First-Lien Priority Obligations), including any sale, lease, exchange, transfer or other disposition of such ABL Priority Collateral; or

(2)any sale, lease, exchange, transfer or other disposition of any ABL Priority Collateral permitted under the terms of the First-Lien Documents and the Second-Lien Documents other than (A) in connection with the Discharge of First-Lien Obligations and (B) after the occurrence and during the continuance of any event of default under the Second-Lien Credit Agreement,

the First-Lien Security Agent, on behalf of itself and the First-Lien Secured Parties, releases any of its Liens on any part of the ABL Priority Collateral, then the Liens, if any, of the Second-Lien Security Agent, for itself or for the benefit of the Second-Lien Secured Parties, on such ABL Priority Collateral (but not the Proceeds thereof, which shall be subject to the priorities set forth in this Agreement) shall be automatically, unconditionally and simultaneously released and the Second-Lien Security Agent, on behalf of itself and such Second-Lien Secured Parties, promptly shall execute and deliver to the First-Lien Security Agent or such Grantor such termination statements, releases and other documents as the First-Lien Security Agent or such Grantor may request to effectively confirm such release.

(ii)Until the Discharge of First-Lien Obligations occurs, the Second-Lien Security Agent, on behalf of itself and the Second-Lien Secured Parties, hereby irrevocably constitutes and appoints the First-Lien Security Agent and any officer or agent of the First-Lien Security Agent, with full power of substitution, as its true and lawful attorney in fact with full irrevocable power and authority in the place and stead of the Second-Lien Security Agent or such holder or in the First-Lien Security Agent’s own name, from time to time in the First-Lien Security Agent’s

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discretion, for the purpose of carrying out the terms of this Section 4.4(b) with respect to ABL Priority Collateral, to take any and all appropriate action and to execute any and all documents and instruments which may be necessary to accomplish the purposes of this Section 4.4(b) with respect to ABL Priority Collateral, including any endorsements or other instruments of transfer or release.

(iii)Until the Discharge of First-Lien Obligations occurs, to the extent that the First-Lien Secured Parties (a) have released any Lien on ABL Priority Collateral and any such Lien is later reinstated or (b) obtain any new Second Priority Liens (or, after the Discharge of ABL Obligations has occurred, First Priority Liens) on assets constituting ABL Priority Collateral from Grantors, then the Second-Lien Secured Parties shall be granted a Third Priority Lien (or, after the Discharge of ABL Obligations has occurred, a Second Priority Lien) on any such ABL Priority Collateral.

(iv)If, prior to the Discharge of First-Lien Obligations, a subordination of the First-Lien Security Agent’s Lien on any ABL Priority Collateral is permitted under the First-Lien Credit Agreement and the Second-Lien Credit Agreement to another Lien permitted under the First-Lien Credit Agreement and the Second-Lien Credit Agreement (for purposes of this clause (iv), an “ABL Collateral Priority Lien”), then the First-Lien Agent is authorized to execute and deliver a subordination agreement with respect thereto in form and substance satisfactory to it, and the Second-Lien Security Agent, on behalf of itself and the Second-Lien Secured Parties, shall promptly execute and deliver to the First-Lien Agent an identical subordination agreement subordinating the Liens of the Second-Lien Security Agent for the benefit of (and behalf of) the First-Lien Secured Parties to such ABL Collateral Priority Lien.

(c)Insurance — Prior to Discharge of ABL Obligations.  Unless and until the Discharge of ABL Obligations has occurred, the ABL Agent and the ABL Secured Parties shall have the sole and exclusive right, subject to the rights of the Grantors under the ABL Documents, to adjust settlement for any insurance policy covering the ABL Priority Collateral in the event of any loss thereunder and to approve any award granted in any condemnation or similar proceeding (or any deed in lieu of condemnation) in respect of the ABL Priority Collateral.  If the First-Lien Security Agent, any First-Lien Secured Party, the Second-Lien Security Agent or any Second-Lien Secured Party shall, at any time, receive any proceeds of any such insurance policy or any such award or payment in contravention of this Section 4.4(c), it shall pay such proceeds over to the ABL Agent in accordance with the terms of Section 7.1(c) or 7.3(c), as the case may be.

(d)Insurance — After Discharge of ABL Obligations.  After the  Discharge of ABL Obligations has occurred, and unless and until the Discharge of First-Lien Obligations has occurred, the First-Lien Security Agent and the First-Lien Secured Parties shall have the sole and exclusive right, subject to the rights of the Grantors under the First-Lien Documents, to adjust settlement for any insurance policy covering the ABL Priority Collateral in the event of any loss thereunder and to approve any award granted in any condemnation or similar proceeding (or any deed in lieu of condemnation) in respect of the ABL Priority Collateral.  If the Second-Lien Security Agent or any Second-Lien Secured Party shall, at any time, receive any proceeds of any such insurance policy or any such award or payment in contravention of this Section 4.4(d), it shall pay such proceeds over to the First-Lien Security Agent in accordance with the terms of Section 7.3(c).

(e)Rights As Unsecured Creditors.

(i)Except as otherwise set forth in this Agreement, the First-Lien Security Agent and the First-Lien Secured Parties may exercise rights and remedies as unsecured creditors

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against the Company or any other Grantor in accordance with the terms of the First-Lien Documents to which it is a party and applicable law.  Except as otherwise set forth in this Agreement, nothing in this Agreement shall prohibit the receipt by the First-Lien Security Agent or any First-Lien Secured Parties of the required payments of interest, principal and other amounts in respect of the First-Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the First-Lien Security Agent or any First-Lien Secured Parties of rights or remedies as a secured creditor (including set off) in respect of the ABL Priority Collateral in contravention of this Agreement or enforcement in contravention of this Agreement of any Lien held by any of them.  In the event the First-Lien Security Agent or any other First-Lien Secured Party becomes a judgment lien creditor in respect of ABL Priority Collateral as a result of its enforcement of its rights as an unsecured creditor, such judgment lien shall be subordinated to the Liens securing ABL Obligations on the same basis as the other Liens on the ABL Priority Collateral securing the First-Lien Obligations are so subordinated to such ABL Obligations under this Agreement.

(ii)Except as otherwise set forth in this Agreement, the Second-Lien Security Agent and the Second-Lien Secured Parties may exercise rights and remedies as unsecured creditors against the Company or any other Grantor in accordance with the terms of the Second-Lien Documents to which it is a party and applicable law.  Except as otherwise set forth in this Agreement, nothing in this Agreement shall prohibit the receipt by the Second-Lien Security Agent or any Second-Lien Secured Parties of the required payments of interest, principal and other amounts in respect of the Second-Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the Second-Lien Security Agent or any Second-Lien Secured Parties of rights or remedies as a secured creditor (including set off) in respect of the ABL Priority Collateral in contravention of this Agreement or enforcement in contravention of this Agreement of any Lien held by any of them.  In the event the Second-Lien Security Agent or any other Second-Lien Secured Party becomes a judgment lien creditor in respect of ABL Priority Collateral as a result of its enforcement of its rights as an unsecured creditor, such judgment lien shall be subordinated to (x) the Liens securing ABL Obligations and (y) the Liens securing First-Lien Obligations, in each case on the same basis as the other Liens on the ABL Priority Collateral securing the Second-Lien Obligations are so subordinated to such ABL Obligations and such First-Lien Obligation, respectively, under this Agreement.

(iii)Nothing in this Agreement impairs or otherwise adversely affects any rights or remedies the ABL Agent or the other ABL Secured Parties may have with respect to the ABL Priority Collateral.

(f)Bailee for Perfection — ABL Agent.

(i)The ABL Agent agrees to hold or control that part of the ABL Priority Collateral that is in its possession or control (or in the possession or control of its agents or bailees) to the extent that possession or control thereof is taken to perfect a Lien thereon under the UCC or other applicable law (such ABL Priority Collateral being the “Pledged ABL Priority Collateral”) as security agent for the ABL Secured Parties and as bailee for and, with respect to any ABL Priority Collateral that cannot be perfected in such manner, as agent for, the First-Lien Security Agent (for itself and on behalf of the First-Lien Secured Parties) and the Second-Lien Security Agent (for itself and on behalf of the Second-Lien Secured Parties) and any assignee thereof solely for the purpose of perfecting the security interest granted under the ABL Credit Documents, the First-Lien Documents and the Second-Lien Documents, respectively, subject to the terms and conditions of this Section 4.4(f).

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(ii)Subject to the terms of this Agreement, until the Discharge of ABL Obligations has occurred, the ABL Agent shall be entitled to deal with the Pledged ABL Priority Collateral in accordance with the terms of the ABL Documents as if the Liens of the First-Lien Security Agent under the First-Lien Security Documents and the Second-Lien Security Agent under the Second-Lien Security Documents did not exist.  The rights of the First-Lien Security Agent, the First-Lien Secured Parties, the Second-Lien Security Agent and the Second-Lien Secured Parties shall at all times be subject to the terms of this Agreement and to the ABL Agent’s rights under the ABL Documents.

(iii)The ABL Agent shall have no obligation whatsoever to any ABL Secured Party, the First-Lien Security Agent, any First-Lien Secured Party, the Second-Lien Security Agent or any Second-Lien Secured Party to ensure that the Pledged ABL Priority Collateral is genuine or owned by any of the Grantors or to preserve rights or benefits of any Person except as expressly set forth in this Section 4.4(f).  The duties or responsibilities of the ABL Agent under this Section 4.4(f) shall be limited solely to holding the Pledged ABL Priority Collateral as bailee or agent in accordance with this Section 4.4(f).

(iv)The ABL Agent acting pursuant to this Section 4.4(f) shall not have by reason of the ABL Security Documents, the First-Lien Security Documents, the Second-Lien Security Documents, this Agreement or any other document a fiduciary relationship in respect of any ABL Secured Party, the First-Lien Security Agent, any First-Lien Secured Party, the Second-Lien Security Agent or any Second-Lien Secured Party.

(v)Upon the Discharge of ABL Obligations, the ABL Agent shall deliver or cause to be delivered the remaining Pledged ABL Priority Collateral (if any) in its possession or in possession of its agents or bailees, together with any necessary endorsements, (A) first, to the First-Lien Security Agent to the extent First-Lien Obligations remain outstanding, (B) second, to the Second-Lien Security Agent to the extent Second-Lien Obligations remain outstanding and (C) third, to the applicable Grantor to the extent no ABL Obligations, First-Lien Obligations or Second-Lien Obligations remain outstanding (in each case, so as to allow such Person to obtain control of such Pledged ABL Priority Collateral) and will cooperate with the First-Lien Security Agent, the Second-Lien Security Agent or such Grantor, as the case may be, in assigning (without recourse to or warranty by the ABL Agent or any ABL Secured Party or agent or bailee thereof) control over any other Pledged ABL Priority Collateral under its control.  The ABL Agent further agrees to take all other action reasonably requested by such Person (at the sole cost and expense of the Grantors or such Person) in connection with such Person obtaining a first priority interest in the Pledged ABL Priority Collateral or as a court of competent jurisdiction may otherwise direct.

(vi)Notwithstanding anything to the contrary herein:

(A)following the Discharge of ABL Obligations, if, for any reason, any First-Lien Obligations remain outstanding, all rights of the ABL Agent hereunder and under the ABL Security Documents (1) with respect to the delivery and control of any part of the ABL Priority Collateral, and (2) to direct, instruct, vote upon or otherwise influence the maintenance or disposition of such ABL Priority Collateral, shall immediately, and (to the extent permitted by law) without further action on the part of either of the First-Lien Security Agent or the ABL Agent, pass to the First-Lien Security Agent, who shall thereafter hold such rights for the benefit of the First-Lien Secured Parties.  Each of the ABL Agent and the Grantors agrees that, following the Discharge of ABL Obligations, it will, if any First-Lien Obligations remain outstanding, take any other action required by any applicable domestic law or reasonably requested by the First-

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Lien Security Agent (at the sole cost and expense of Grantors), in connection with the First-Lien Security Agent’s establishment and perfection of a First Priority security interest in the ABL Priority Collateral to the extent required by the First-Lien Documents.

(B)following the Discharge of ABL Obligations and the Discharge of First-Lien Obligations, if, for any reason, any Second-Lien Obligations remain outstanding, all rights of the ABL Agent hereunder and under the ABL Security Documents and all rights of the First-Lien Security Agent hereunder and under the First-Lien Security Documents (1) with respect to the delivery and control of any part of the ABL Priority Collateral, and (2) to direct, instruct, vote upon or otherwise influence the maintenance or disposition of such ABL Priority Collateral, shall immediately, and (to the extent permitted by law) without further action on the part of any of the First-Lien Security Agent, the Second-Lien Security Agent or the ABL Agent, pass to the Second-Lien Security Agent, who shall thereafter hold such rights for the benefit of the Second-Lien Secured Parties.  Each of the First-Lien Security Agent, the ABL Agent and the Grantors agrees that, following the Discharge of ABL Obligations and the Discharge of First-Lien Obligations, it will, if any Second-Lien Obligations remain outstanding, take any other action required by any applicable domestic law or reasonably requested by the Second-Lien Security Agent, in connection with the Second-Lien Security Agent’s establishment and perfection of a First Priority security interest in the ABL Priority Collateral to the extent required by the Second-Lien Documents.

(vii)Notwithstanding anything to the contrary contained herein, if for any reason, prior to the Discharge of First-Lien Obligations and the Discharge of Second-Lien Obligations, the ABL Agent acquires possession of any Pledged Term Loan Priority Collateral, the ABL Agent shall hold same as bailee and/or agent to the same extent as is provided in the preceding clause (i) with respect to Pledged ABL Priority Collateral, provided that as soon as is practicable the ABL Agent shall deliver or cause to be delivered such Pledged Term Loan Priority Collateral to the First-Lien Security Agent or, after the Discharge of First-Lien Obligations has occurred, Second-Lien Security Agent, as the case may be, in a manner otherwise consistent with the requirements of preceding clause (v).

(g)Bailee for Perfection — First-Lien Security Agent.

(i)After the Discharge of ABL Obligations has occurred, and to the extent that the First-Lien Security Agent holds or controls any Pledged ABL Priority Collateral, the First-Lien Security Agent agrees to hold or control that part of the Pledged ABL Priority Collateral that is in its possession or control (or in the possession or control of its agents or bailees) to the extent that possession or control thereof is taken to perfect a Lien thereon under the UCC or other applicable law as security agent for the First-Lien Secured Parties and as bailee for and, with respect to any ABL Priority Collateral that cannot be perfected in such manner, as agent for, the Second-Lien Security Agent (on behalf of the Second-Lien Secured Parties) and any assignee thereof solely for the purpose of perfecting the security interest granted under the First-Lien Documents and the Second-Lien Documents, respectively, subject to the terms and conditions of this Section 4.4(g).

(ii)Subject to the terms of this Agreement, after the Discharge of ABL Obligations has occurred and until the Discharge of First-Lien Obligations has occurred, the First-Lien Security Agent shall be entitled to deal with the Pledged ABL Priority Collateral in accordance with the terms of the First-Lien Documents as if the Liens of the Second-Lien Security Agent under the Second-Lien Security Documents did not exist.  The rights of the Second-Lien Security Agent shall at all times be subject to the terms of this Agreement and to the First-Lien Security Agent’s rights under the First-Lien Documents.

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(iii)The First-Lien Security Agent shall have no obligation whatsoever to any First-Lien Secured Party, the Second-Lien Security Agent or any Second-Lien Secured Party to ensure that the Pledged ABL Priority Collateral is genuine or owned by any of the Grantors or to preserve rights or benefits of any Person except as expressly set forth in this Section 4.4(g).  The duties or responsibilities of the First-Lien Security Agent under this Section 4.4(g) shall be limited solely to holding the Pledged ABL Priority Collateral as bailee or agent in accordance with this Section 4.4(g).

(iv)The First-Lien Security Agent acting pursuant to this Section 4.4(g) shall not have by reason of the First-Lien Security Documents, the Second-Lien Security Documents, this Agreement or any other document a fiduciary relationship in respect of any First-Lien Secured Party, the Second-Lien Security Agent or any Second-Lien Secured Party.

(v)Following the Discharge of ABL Obligations and the Discharge of First-Lien Obligations, the First-Lien Security Agent shall deliver or cause to be delivered the remaining Pledged ABL Priority Collateral (if any) in its possession or in possession of its agents or bailees, together with any necessary endorsements, (A) first, to the Second-Lien Security Agent to the extent Second-Lien Obligations remain outstanding and (B) second, to the applicable Grantor to the extent no First-Lien Obligations or Second-Lien Obligations remain outstanding (in each case, so as to allow such Person to obtain control of such Pledged ABL Priority Collateral) and will cooperate with the Second-Lien Security Agent or such Grantor, as the case may be, in assigning (without recourse to or warranty by the First-Lien Security Agent or any First-Lien Secured Party or agent or bailee thereof) control over any other Pledged ABL Priority Collateral under its control.  The First-Lien Agent further agrees to take all other action reasonably requested by such Person (at the sole cost and expense of the Grantors or such Person) in connection with such Person obtaining a first priority interest in the Pledged ABL Priority Collateral or as a court of competent jurisdiction may otherwise direct.

(vi)Notwithstanding anything to the contrary herein, if, for any reason, any Second-Lien Obligations remain outstanding upon the Discharge of ABL Obligations and the Discharge of First-Lien Obligations, all rights of the First-Lien Security Agent hereunder and under the First-Lien Security Documents (1) with respect to the delivery and control of any part of the ABL Priority Collateral, and (2) to direct, instruct, vote upon or otherwise influence the maintenance or disposition of such ABL Priority Collateral, shall immediately, and (to the extent permitted by law) without further action on the part of the First-Lien Security Agent, pass to the Second-Lien Security Agent, who shall thereafter hold such rights for the benefit of the Second-Lien Secured Parties.  Each of the First-Lien Security Agent and the Grantors agrees that it will, if any Second-Lien Obligations remain outstanding upon the Discharge of ABL Obligations and the Discharge of First-Lien Obligations, take any other action required by any applicable law or reasonably requested by the Second-Lien Security Agent (at the sole cost and expense of Grantors), in connection with the Second-Lien Security Agent’s establishment and perfection of a First Priority security interest in the ABL Priority Collateral to the extent required by the Second-Lien Documents.

(h)When Discharge of ABL Obligations Deemed to Not Have Occurred.  Notwithstanding anything to the contrary herein, if concurrently with (or immediately after) the Discharge of ABL Obligations, the Company or any other Grantor enters into any Permitted Refinancing of any ABL Obligations and provides the notice referred to in the following sentence, then such Discharge of ABL Obligations shall automatically be deemed not to have occurred for all purposes of this Agreement, and the obligations under the Permitted Refinancing shall automatically be treated as ABL Obligations (together with the ABL Bank Product Agreements on the basis provided in the definition of “ABL Loan

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Documents” contained herein) for all purposes of this Agreement, including for purposes of the Lien priorities and rights in respect of Collateral set forth herein, the term “ABL Credit Agreement” shall be deemed appropriately modified to refer to such Permitted Refinancing and the ABL Agent under such ABL Documents shall be an ABL Agent for all purposes hereof and the new secured parties under such ABL Documents (together with the ABL Bank Product Creditors as provided herein) shall automatically be treated as ABL Secured Parties for all purposes of this Agreement.  Upon receipt of a notice from the Company stating that the Company or any other Grantor has entered into a new ABL Document in respect of a Permitted Refinancing of ABL Obligations (which notice shall include the identity of the new agent, such agent, the “New ABL Agent”), and delivery by the New ABL Agent of an Intercreditor Agreement Joinder, each of the First-Lien Security Agent and the Second-Lien Security Agent shall promptly (i) enter into such documents and agreements (including amendments or supplements to this Agreement) as the Company and/or any Grantor or such New ABL Agent shall reasonably request in order to provide to the New ABL Agent the rights contemplated hereby, in each case consistent in all material respects with the terms of this Agreement and (ii) deliver to the New ABL Agent any Pledged ABL Priority Collateral held by either the First-Lien Security Agent or the Second-Lien Security Agent, respectively, together with any necessary endorsements (or otherwise allow the New ABL Agent to obtain control of such Pledged ABL Priority Collateral).  The New ABL Agent shall agree to be bound by the terms of this Agreement.  If the new ABL Priority Obligations under the new ABL Documents are secured by assets of the Grantors of the type constituting ABL Priority Collateral that do not also secure each of the First-Lien Priority Obligations and the Second-Lien Priority Obligations, then each of the First-Lien Priority Obligations and the Second-Lien Priority Obligations shall be secured at such time by a Second Priority Lien and a Third Priority Lien, respectively, on such assets to the same extent provided in the First-Lien Security Documents and Second-Lien Security Documents with respect to the other ABL Priority Collateral.  If the new ABL Priority Obligations under the new ABL Documents are secured by assets of the Grantors of the type constituting Term Loan Priority Collateral that do not also secure each of the First-Lien Priority Obligations and the Second-Lien Priority Obligations, then each of the First-Lien Priority Obligations and the Second-Lien Priority Obligations shall be secured at such time by a First Priority Lien and Second Priority Lien, respectively, on such assets to the same extent provided in the First-Lien Security Documents and Second-Lien Security Documents with respect to the other Term Loan Priority Collateral.

4.5Insolvency or Liquidation Proceedings.

(a)Finance and Sale Issues — ABL Obligations.  Until the Discharge of ABL Obligations has occurred, if the Company or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding and the ABL Agent shall desire to permit the use of cash collateral (as such term is defined in Section 363(a) of the Bankruptcy Code) constituting ABL Priority Collateral or to permit the Company or any other Grantor to obtain a financing, whether from the ABL Secured Parties or any other entity under Section 364 of the Bankruptcy Code or any similar Bankruptcy Law, that is secured by a lien that is (i) senior or pari passu with the liens on the ABL Priority Collateral securing the ABL Priority Obligations and (ii) junior to the liens on the Term Loan Priority Collateral securing the First-Lien Priority Obligations and the Second-Lien Priority Obligations (each, an “ABL DIP Financing”), then the First-Lien Security Agent, on behalf of itself and the First-Lien Secured Parties, and the Second-Lien Security Agent, on behalf of itself and the Second-Lien Secured Parties, each agrees that it will not oppose or raise any objection to or contest (or join with or support any third party opposing, objecting or contesting) such use of cash collateral constituting ABL Priority Collateral or to the fact that such ABL DIP Financing may be granted Liens on the Collateral and will not request adequate protection or any other relief in connection therewith (except, as expressly agreed by the ABL Agent or to the extent permitted by Section 4.5(d)) and, the First-Lien Security Agent and the Second-Lien Security Agent will each subordinate its Liens in the ABL Priority Collateral to the Liens securing such ABL DIP Financing (and all interest and other obligations relating thereto); provided that (i) each of the First-Lien Security

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Agent, the other First-Lien Secured Parties, the Second-Lien Security Agent and the other Second-Lien Secured Parties retain a Lien on the Collateral to secure the First-Lien Priority Obligations and the Second-Lien Priority Obligations, respectively, and, with respect to the Term Loan Priority Collateral only, with the same priority as existed prior to the commencement of the Insolvency or Liquidation Proceeding, (ii) to the extent that the ABL Agent is granted adequate protection in the form of a Lien and/or a superpriority administrative claim, the First-Lien Security Agent and the Second-Lien Security Agent are each permitted to seek (without objection from the ABL Agent or any ABL Secured Party) a Lien on Collateral arising after the commencement of the Insolvency or Liquidation Proceeding and/or a superpriority administrative claim (so long as, with respect to ABL Priority Collateral, such Lien is junior to the Liens securing such ABL DIP Financing and the ABL Priority Obligations and such superpriority administrative claim is junior to the superpriority administrative claim granted to the ABL Agent), (iii) the terms of such ABL DIP Financing or use of cash collateral do not require any Grantor to seek approval for any Plan of Reorganization that is inconsistent with this Agreement and (iv) the aggregate principal amount of the ABL DIP Financing (exclusive of ABL Bank Product Agreements, Interest Rate Protection Agreements and Other Hedging Agreements, to the extent constituting principal) shall not exceed the Maximum Exposure Amount.  The First-Lien Security Agent, on behalf of the First-Lien Secured Parties, and the Second-Lien Security Agent, on behalf of the Second-Lien Secured Parties, agree that they will not raise any objection or oppose a sale or other disposition of any ABL Priority Collateral free and clear of its Liens (subject to attachment of proceeds with respect to the Second Priority Lien on the ABL Priority Collateral in favor of the First-Lien Security Agent and the Third Priority Lien on the ABL Priority Collateral in favor of the Second-Lien Security Agent, respectively, in the same order and manner as otherwise set forth herein) or other claims under Section 363 of the Bankruptcy Code, except for any objection or opposition that could be asserted by any First-Lien Secured Party or any Second-Lien Secured Party as an unsecured creditor in any such Insolvency or Liquidation Proceeding if the First-Lien Secured Parties and Second-Lien Secured Parties have consented to such sale or disposition of such assets; provided that any of the First-Lien Security Agent, the other First-Lien Secured Parties, the Second-Lien Security Agent or the other Second-Lien Secured Parties shall be entitled to seek and exercise Credit Bid Rights in respect of any such sale or disposition.

(b)Finance and Sale Issues — First-Lien Obligations.  After the Discharge of ABL Obligations has occurred and until the Discharge of First-Lien Obligations has occurred, if the Company or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding and the First-Lien Security Agent shall desire to permit the use of cash collateral (as such term is defined in Section 363(a) of the Bankruptcy Code) constituting ABL Priority Collateral or to permit the Company or any other Grantor to obtain a financing, whether from the First-Lien Secured Parties or any other entity under Section 364 of the Bankruptcy Code or any similar Bankruptcy Law, that is secured by a lien that is (i) senior or pari passu with the liens on the ABL Priority Collateral securing the First-Lien Priority Obligations and (ii) junior to the liens on the Term Loan Priority Collateral securing the Second-Lien Priority Obligations (each, a “First-Lien DIP Financing”), then the Second-Lien Security Agent, on behalf of itself and the Second-Lien Secured Parties, agrees that it will not oppose or raise any objection to or contest (or join with or support any third party opposing, objecting or contesting) such use of cash collateral constituting ABL Priority Collateral or to the fact that such ABL DIP Financing may be granted Liens on the Collateral and will not request adequate protection or any other relief in connection therewith (except, as expressly agreed by the ABL Agent or to the extent permitted by Section 4.5(d)) and, the Second-Lien Security Agent will subordinate its Liens in the ABL Priority Collateral to the Liens securing such ABL DIP Financing or First-Lien DIP Financing, as the case may be, (and all interest and other obligations relating thereto); provided that (i) the Second-Lien Security Agent and the other Second-Lien Secured Parties retain a Lien on the Collateral to secure the Second-Lien Priority Obligations and, with respect to the Term Loan Priority Collateral only, with the same priority as existed prior to the commencement of the Insolvency or Liquidation Proceeding, (ii) to the extent that the First-Lien Security Agent is granted adequate protection in the form of a Lien and/or a superpriority administrative claim, the

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Second-Lien Security Agent is permitted to seek (without objection from the First-Lien Security Agent or any First-Lien Secured Party) a Lien on Collateral arising after the commencement of the Insolvency or Liquidation Proceeding and/or a superpriority claim, as applicable (so long as, with respect to ABL Priority Collateral, such Lien is junior to the Liens securing such ABL DIP Financing and First-Lien DIP Financing, as the case may be, the ABL Priority Obligations and the First-Lien Priority Obligations, and such superpriority administrative claim is junior to the superpriority administrative claim granted to the ABL Agent and the First-Lien Security Agent), and (iii) the terms of such First-Lien DIP Financing or use of cash collateral do not require any Grantor to seek approval for any Plan of Reorganization that is inconsistent with this Agreement.  The Second-Lien Security Agent, on behalf of the Second-Lien Secured Parties, agrees that it will not raise any objection or oppose a sale or other disposition of any ABL Priority Collateral free and clear of its Liens (subject to attachment of proceeds with respect to the Third Priority Lien on the ABL Priority Collateral in favor of the Second-Lien Security Agent in the same order and manner as otherwise set forth herein) or other claims under Section 363 of the Bankruptcy Code, except for any objection or opposition that could be asserted by any Second-Lien Secured Party as an unsecured creditor in any such Insolvency or Liquidation Proceeding if the Second-Lien Secured Parties have consented to such sale or disposition of such assets; provided that the Second-Lien Security Agent and the other Second-Lien Secured Parties shall be entitled to seek and exercise Credit Bid Rights in respect of any such sale or disposition.

(c)Relief from the Automatic Stay.

(i)Until the Discharge of ABL Obligations has occurred, each of the First-Lien Security Agent, on behalf of itself and the First-Lien Secured Parties, and the Second-Lien Security Agent, on behalf of itself and the Second-Lien Secured Parties, agree that none of them shall seek (or support any other Person seeking) relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding in respect of the ABL Priority Collateral, without the prior written consent of the ABL Agent.

(ii)Until the Discharge of First-Lien Obligations has occurred, the Second-Lien Security Agent, on behalf of itself and the Second-Lien Secured Parties, agrees that none of them shall seek (or support any other Person seeking) relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding in respect of the ABL Priority Collateral, without the prior written consent of the First-Lien Security Agent.

(d)Adequate Protection.

(i)Each of the First-Lien Security Agent, on behalf of itself and the First-Lien Secured Parties, and the Second-Lien Security Agent, on behalf of itself and the Second-Lien Secured Parties, agrees that none of them shall contest (or support any other Person contesting) (A) any request by the ABL Agent or the ABL Secured Parties for adequate protection with respect to any ABL Priority Collateral, (B) so long as the request of adequate protection is in the form of a replacement lien on the Term Loan Priority Collateral that is junior to the liens on the Term Loan Priority Collateral securing the First-Lien Priority Obligations and the Second-Lien Priority Obligations, any request by the ABL Agent or the ABL Secured Parties for adequate protection with respect to any Term Loan Priority Collateral or (C) any objection by the ABL Agent or the ABL Secured Parties to any motion, relief, action or proceeding based on the ABL Agent or the ABL Secured Parties claiming a lack of adequate protection with respect to the ABL Priority Collateral.  Notwithstanding the foregoing provisions in this Section 4.5(d), in any Insolvency or Liquidation Proceeding, (x) if the ABL Secured Parties (or any subset thereof) are granted adequate protection in the form of additional collateral in the nature of assets constituting ABL Priority Collateral in connection with any ABL DIP Financing or use of cash collateral

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constituting ABL Priority Collateral and/or a superpriority administrative claim, then each of the First-Lien Security Agent, on behalf of itself or any of the First-Lien Secured Parties, and the Second-Lien Security Agent, on behalf of itself or any of the Second-Lien Secured Parties, may seek or request adequate protection in the form of a Lien on such additional collateral and/or a superpriority administrative claim (as applicable), which Lien and/or claim will be subordinated to the Liens securing the ABL Obligations and such ABL DIP Financing (and all obligations relating thereto) and/or superpriority claim granted to the ABL Agent on the same basis as the other Liens on, or claims with respect to, ABL Priority Collateral securing the First-Lien Obligations or the Second-Lien Obligations, as the case may be, are so subordinated to the ABL Obligations under this Agreement, and (y) in the event the First-Lien Security Agent, on behalf of itself and the First-Lien Secured Parties, or the Second-Lien Security Agent, on behalf of itself and the Second-Lien Secured Parties, seeks or requests adequate protection in respect of ABL Priority Collateral securing First-Lien Obligations or Second-Lien Obligations, as the case may be, and such adequate protection is granted in the form of additional collateral in the nature of assets constituting ABL Priority Collateral and/or a superpriority administrative claim, then each of the First-Lien Security Agent, on behalf of itself or any of the First-Lien Secured Parties, and the Second-Lien Security Agent, on behalf of itself or any of the Second-Lien Secured Parties, agrees that the ABL Agent shall also be granted a senior Lien on such additional collateral as security for the ABL Obligations and for any such ABL DIP Financing and/or a superpriority claim and that any Lien on such additional collateral securing the First-Lien Obligations or Second-Lien Obligations and/or superpriority claim, as the case may be, shall be subordinated to the Liens on such collateral securing the ABL Obligations and any such ABL DIP Financing (and all obligations relating thereto) and to any other Liens and superpriority claims granted to the ABL Secured Parties as adequate protection on the same basis as the other Liens, and claims with respect to, on ABL Priority Collateral securing the First-Lien Obligations are so subordinated to such ABL Obligations under this Agreement.

(ii)The Second-Lien Security Agent, on behalf of itself and the Second-Lien Secured Parties, agrees that it shall not contest (or support any other Person contesting) (A) any request by the First-Lien Security Agent or the First-Lien Secured Parties for adequate protection with respect to any ABL Priority Collateral or Term Loan Priority Collateral or (B) any objection by the First-Lien Security Agent or the First-Lien Secured Parties to any motion, relief, action or proceeding based on the First-Lien Security Agent or the First-Lien Secured Parties claiming a lack of adequate protection with respect to the ABL Priority Collateral or Term Loan Priority Collateral.  Notwithstanding the foregoing provisions in this Section 4.5(d), in any Insolvency or Liquidation Proceeding, (A) if the First-Lien Secured Parties (or any subset thereof) are granted adequate protection in the form of additional collateral in the nature of assets constituting ABL Priority Collateral or Term Loan Priority Collateral and/or a superpriority administrative claim in connection with any ABL DIP Financing, any First-Lien DIP Financing or use of cash collateral constituting ABL Priority Collateral or Term Loan Priority Collateral, then the Second-Lien Security Agent, on behalf of itself or any of the Second-Lien Secured Parties, may seek or request adequate protection in the form of a Lien on such additional collateral and/or a superpriority administrative claim (as applicable), which Lien and/or claim will be subordinated to the Liens securing the ABL Obligations and the First-Lien Obligations and such ABL DIP Financing and such First-Lien DIP Financing (and all obligations relating thereto) and/or superpriority claims granted to the First-Lien Security Agent and the ABL Agent on the same basis as the other Liens on, or claims with respect to, ABL Priority Collateral securing the Second-Lien Obligations are so subordinated to the ABL Obligations and the First-Lien Obligations under this Agreement, and (B) in the event the Second-Lien Security Agent, on behalf of itself and the Second-Lien Secured Parties, seeks or requests adequate protection in respect of ABL Priority Collateral securing Second-Lien Obligations and such adequate protection is granted in the form of additional

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collateral in the nature of assets constituting ABL Priority Collateral and/or a superpriority administrative claim, then the Second-Lien Security Agent, on behalf of itself or any of the Second-Lien Secured Parties, agrees that the First-Lien Security Agent shall also be granted a senior Lien on such additional collateral as security for the ABL Obligations and the First-Lien Obligations and for any such ABL DIP Financing and any such First-Lien DIP Financing /or superpriority claim (as applicable) and that any Lien on such additional collateral securing the Second-Lien Obligations or superpriority claim shall be subordinated to the Liens on, and claims with respect to, such collateral securing the ABL Obligations and the First-Lien Obligations and any such ABL DIP Financing and such First-Lien DIP Financing (and all obligations relating thereto) and to any other Liens granted to the First-Lien Secured Parties as adequate protection on the same basis as the other Liens on ABL Priority Collateral securing the Second-Lien Obligations are so subordinated to such ABL Obligations and the First-Lien Obligations under this Agreement.

Section 5.  General.

5.1Amendments; Refinancings.

(a)(i) Amendments to, and Refinancing of, First-Lien Documents.

The First-Lien Documents may be amended, restated, amended and restated, supplemented or otherwise modified in accordance with their terms and any First-Lien Obligations may be Refinanced, in each case, without notice to, or the consent of, the ABL Agent, the ABL Secured Parties, the Second-Lien Security Agent or the other Second-Lien Secured Parties, all without affecting the lien subordination or other provisions of this Agreement; provided, however, that any such amendment, restatement, amendment and restatement, supplement, modification or Refinancing of the First-Lien Documents shall not, without the consent of the ABL Agent and the Second-Lien Security Agent:

(1)increase the maximum aggregate principal of loans or notes constituting First-Lien Obligations thereunder to an amount in excess of the First-Lien Debt Cap;

(2)change the final stated maturity date of First-Lien Obligations to a date earlier than the then applicable earliest final stated maturity date;

(3)change the scheduled amortization under the First-Lien Credit Agreement on the date hereof if the effect thereof is to increase the scheduled amortization in excess of that applicable to the loans under the First-Lien Credit Agreement (as in effect on the date hereof), other than as a result of amortization applicable to additional loans made under the First-Lien Credit Agreement after the date hereof; or

(4)contravene the provisions of this Agreement.

Subject to the provisions of the ABL Documents and the Second-Lien Documents, the First-Lien Obligations may be Refinanced in whole or in part to the extent the terms and conditions of such Refinancing debt constituting First-Lien Obligations (or intended to constitute First-Lien Obligations after giving effect to a new intercreditor agreement pursuant to Section 8.3) meet the requirements of this Section 5.1(a) and either (x) the holders (or other agent or representative) of such Refinancing debt constituting First-Lien Obligations or intended to constitute First-Lien Obligations after giving effect to a new intercreditor agreement pursuant to Section 8.3) bind themselves in a writing addressed to the ABL Agent, the ABL Secured Parties,

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the Second-Lien Security Agent and the Second-Lien Secured Parties to the terms of this Agreement (or to the extent such holders (or their agent or representative) are already bound by this Agreement by virtue of such Refinancing debt being  effectuated under existing First-Lien Documents) or (y) at the request of the Company, the holders of such Refinancing debt (or their agent or representative), the ABL Agent, the First-Lien Agents (if other First-Lien Obligations remain outstanding) and the Second-Lien Agents shall enter into a new intercreditor agreement pursuant to Section 8.3.

(ii)In the event the First-Lien Security Agent or the First-Lien Secured Parties and the relevant Grantor enter into any amendment, waiver or consent in respect of any of the First-Lien Security Documents for the purpose of adding to, or deleting from, or waiving or consenting to any departures from any provisions of, any First-Lien Security Document or changing in any manner the rights of the First-Lien Security Agent, such First-Lien Secured Parties, the Company or any other Grantor thereunder, in each case with respect to or relating to the Term Loan Priority Collateral, then such amendment, waiver or consent shall apply automatically to any comparable provision of the Comparable ABL Security Document and the Comparable Second-Lien Security Document without the consent of the ABL Agent, the ABL Secured Parties, the Second-Lien Security Agent or the Second-Lien Secured Parties and without any action by the ABL Agent, the Second-Lien Security Agent, the Company or any other Grantor; provided that (A) no such amendment, waiver or consent shall have the effect of (i) removing assets that constitute Term Loan Priority Collateral subject to the Lien of the ABL Security Documents or the Second-Lien Security Documents, except to the extent that a release of such Lien is permitted or required by Section 3.4(a) and provided that there is a corresponding release of the Lien of the First-Lien Security Agent on such Term Loan Priority Collateral securing the First-Lien Obligations, (ii) imposing duties on the ABL Agent or the Second-Lien Security Agent without their respective consent or (iii) permitting other liens on the Term Loan Priority Collateral not permitted under the terms of the ABL Documents, the Second-Lien Documents or Section 3.5 and (B) notice of such amendment, waiver or consent shall have been given to the ABL Agent and the Second-Lien Security Agent within ten (10) Business Days after the effective date of such amendment, waiver or consent.

(b)Amendments to, and Refinancing of, Second-Lien Documents.

(i)The Second-Lien Documents may be amended, restated, amended and restated, supplemented or otherwise modified in accordance with their terms and any Second-Lien Obligations may be Refinanced, whether on a secured, unsecured or subordinated basis, in each case, without notice to, or the consent of, the ABL Agent, the ABL Secured Parties, the First-Lien Security Agent or the other First-Lien Secured Parties, all without affecting the lien subordination or other provisions of this Agreement; provided, however, that any such amendment, restatement, amendment and restatement, supplement, modification or Refinancing of the Second-Lien Documents shall not, without the consent of the ABL Agent and the First-Lien Security Agent:

(1)increase the maximum aggregate principal of loans or notes thereunder to an amount in excess of the Second-Lien Debt Cap; or

(2)change the final stated maturity date of the Second-Lien Obligations to a date earlier than the then applicable earliest final stated maturity date of Second-Lien Obligations;

(3)change the mandatory prepayment provisions thereof (excluding the provisions relating to scheduled amortization, if any) (in a manner adverse to any Grantor or any of its Subsidiaries or the ABL Secured Parties or the First-Lien Secured Parties);

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provided that (i) mandatory prepayment provisions consistent with the First-Lien Obligations shall be permitted and (ii) customary asset sale and change of control off provisions shall be permitted;

(4)change the scheduled amortization under the Second-Lien Credit Agreement if the effect thereof is to increase the scheduled amortization in excess of that applicable to the loans under the Second-Lien Credit Agreement (as in effect on the date hereof);

(5)contravene the provisions of this Agreement; or

(6)change (or add) any limitation on the optional prepayment of the loans under the ABL Credit Agreement or the First-Lien Credit Agreement (in a manner adverse to any Grantor or any of its Subsidiaries or the ABL Secured Parties or the First-Lien Secured Parties).

Subject to the provisions of the First-Lien Documents and the ABL Documents, any Second-Lien Obligations may be Refinanced in whole or in part to the extent the terms and conditions of such Refinancing debt constituting Second-Lien Obligations (or intended to constitute Second-Lien Obligations after giving effect to a new intercreditor agreement pursuant to Section 8.3) meet the requirements of this Section 5.1(b) and either (x) the holders (or other agent or representative) of such Refinancing debt constituting Second-Lien Obligations (or intended to constitute Second-Lien Obligations after giving effect to a new intercreditor agreement pursuant to Section 8.3) bind themselves in a writing addressed to the First-Lien Security Agent, the First-Lien Secured Parties, the ABL Security Agent and the ABL Secured Parties to the terms of this Agreement (or to the extent such holders (or their agent or representative) are already bound by this Agreement by virtue of such Refinancing debt being  effectuated under existing Second-Lien Documents) or (y) at the request of the Company the holders of such Refinancing debt (or their agent or their representative), the ABL Agent, the First-Lien Agents and the Second-Lien Agents (if other Second-Lien Obligations remain outstanding) shall enter into a new intercreditor agreement pursuant to Section 8.3.

(ii)Following the Discharge of First-Lien Obligations, in the event the Second-Lien Security Agent or the Second-Lien Secured Parties and the relevant Grantor enter into any amendment, waiver or consent in respect of any of the Second-Lien Security Documents for the purpose of adding to, or deleting from, or waiving or consenting to any departures from any provisions of, any Second-Lien Security Document or changing in any manner the rights of the Second-Lien Security Agent, such Second-Lien Secured Parties, the Company or any other Grantor thereunder, in each case with respect to or relating to the Term Loan Priority Collateral, all in accordance with the terms of this Agreement, then such amendment, waiver or consent shall apply automatically to any comparable provision of the Comparable ABL Security Document without the consent of the ABL Agent or the ABL Secured Parties and without any action by the ABL Agent, the Company or any other Grantor, provided, that (A) no such amendment, waiver or consent shall have the effect of (i) removing assets that constitute Term Loan Priority Collateral subject to the Lien of the ABL Security Documents, except to the extent that a release of such Lien is permitted or required by Section 3.4(b) and provided that there is a corresponding release of the Lien of the Second-Lien Security Agent on such Term Loan Priority Collateral securing the Second-Lien Obligations, (ii) imposing duties on the ABL Agent without its consent or (iii) permitting other liens on the Term Loan Priority Collateral not permitted under the terms of the ABL Documents or Section 3.5 and (B) notice of such amendment, waiver or consent shall have been given to the ABL Agent within ten (10) Business Days after the effective date of such amendment, waiver or consent.

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(c)Amendments to, and Refinancing of, ABL Documents.

(i)The ABL Documents may be amended, restated, amended and restated, supplemented or otherwise modified in accordance with their terms and any ABL Obligations may be Refinanced, in each case, without notice to, or the consent of, the First-Lien Security Agent or the other First-Lien Secured Parties or the Second-Lien Security Agent or the other Second-Lien Secured Parties, all without affecting the lien subordination or other provisions of this Agreement; provided, however, that any such amendment, restatement, amendment and restatement, supplement, modification or Refinancing of the ABL Documents shall not, without the consent of the First-Lien Security Agent and the Second-Lien Security Agent:

(1)increase the maximum aggregate principal of advances or loans and the aggregate stated amount of letters of credit thereunder to an amount in excess of the ABL Debt Cap; or

(2)contravene the provisions of this Agreement.

Subject to the provisions of the First-Lien Documents and the Second-Lien Documents, the ABL Obligations may be Refinanced in whole or in part to the extent the terms and conditions of such Refinancing debt constituting ABL Obligations (or intended to constitute ABL Obligations after giving effect to a new intercreditor agreement pursuant to Section 8.3) meet the requirements of this Section 5.1(c) and either (x) the holders (or other agent or representative) of such Refinancing debt constituting ABL Obligations (or intended to constitute ABL Obligations after giving effect to a new intercreditor agreement pursuant to Section 8.3) bind themselves in a writing addressed to the First-Lien Security Agent and the First-Lien Secured Parties and the Second-Lien Security Agent and the Second-Lien Secured Parties to the terms of this Agreement (or to the extent such holders (or their agent or representative) are already bound by this Agreement by virtue of such Refinancing debt being effectuated under existing ABL Documents) or (y) at the request of the Company, the holders of such Refinancing debt (or other agent or representative), the ABL Agent, the First-Lien Agents and the Second-Lien Agents shall enter into a new intercreditor agreement pursuant to Section 8.3.

(ii)In the event the ABL Agent or the ABL Secured Parties and the relevant Grantor enter into any amendment, waiver or consent in respect of any of the ABL Security Documents for the purpose of adding to, or deleting from, or waiving or consenting to any departures from any provisions of, any ABL Security Document or changing in any manner the rights of the ABL Agent, such ABL Secured Parties, the Company or any other Grantor thereunder, in each case with respect to or relating to the ABL Priority Collateral, then such amendment, waiver or consent shall apply automatically to any comparable provision of the Comparable First-Lien Security Document and any comparable provision of the Comparable Second-Lien Security Document without the consent of the First-Lien Security Agent, the First-Lien Secured Parties, the Second-Lien Security Agent or the Second-Lien Secured Parties and without any action by the First-Lien Security Agent, the First-Lien Secured Parties, the Second-Lien Security Agent, as the case may be, or the Company or any other Grantor, provided, that (A) no such amendment, waiver or consent shall have the effect of (i) removing assets that constitute ABL Priority Collateral subject to the Lien of the First-Lien Security Documents or the Second-Lien Security Documents, as the case may be, except to the extent that a release of such Lien is permitted or required by Section 4.4(a) and provided that there is a corresponding release of the Lien of the ABL Agent on such ABL Priority Collateral securing the ABL Obligations, (ii) imposing duties on either the First-Lien Security Agent or the Second-Lien Security Agent without its consent or (iii) permitting other liens on the ABL Priority Collateral not permitted under the terms of the

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First-Lien Documents, the Second-Lien Documents or Section 4.5 and (B) notice of such amendment, waiver or consent shall have been given to the First-Lien Security and the Second-Lien Security Agent within ten (10) Business Days after the effective date of such amendment, waiver or consent.

Each of the ABL Agent, the First-Lien Security Agent and the Second-Lien Security Agent shall endeavor to give prompt notice of any amendment, waiver or consent of an ABL Document, a First-Lien Document or Second-Lien Document, as the case may be, to the other Security Agents after the effective date of such amendment, waiver or consent; provided, that the failure of the ABL Agent, the First-Lien Security Agent or the Second-Lien Security Agent, as the case may be, to give any such notice shall not affect the priority of the ABL Agent’s Liens, First-Lien Security Agent’s Liens or the Second-Lien Security Agent’s Liens, as the case may be, on the Collateral as provided herein or the validity or effectiveness of any such notice as against the Grantors or any of their Subsidiaries.

5.2Legends.  Each Security Document that grants a Lien that is entered into on or after the date of the Prior Intercreditor Agreement shall include the following language (with any necessary modifications to give effect to applicable definitions) (or language to similar effect approved by the Security Agents):

“Notwithstanding anything herein to the contrary, the relative priorities of the liens and security interests granted to the [ABL Agent][First-Lien Security Agent][Second-Lien Security Agent] pursuant to this Agreement in any Collateral and the exercise of any right or remedy by the [ABL Agent][First-Lien Security Agent][Second-Lien Security Agent] with respect to any Collateral hereunder are subject to, and governed by, the terms of the [Second] Amended & Restated Intercreditor Agreement, dated as of [      ] (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Intercreditor Agreement”), among Wells Fargo Capital Finance, LLC, as ABL Agent, Morgan Stanley Senior Funding, Inc., as First-Lien Administrative Agent and as First Lien Security Agent, [          ], as Second-Lien Administrative Agent and Second-Lien Security Agent, and certain other Persons party to, or that may become party thereto from time to time, and acknowledged by AdvancePierre Foods Holdings, Inc., a Delaware corporation, Pierre Holdco, Inc., a Delaware corporation, AdvancePierre Foods, Inc., a Delaware corporation, and certain other Grantors.  In the event of any conflict between the terms hereof and the terms of the Intercreditor Agreement, the provisions of the Intercreditor Agreement shall control at any time that the Intercreditor Agreement remains in effect[, except with respect to the scope of the assets included in Section [granting clause] hereof].”

5.3Options to Purchase Obligations

(a)Option to Purchase First-Lien Obligations.  (i)  Without prejudice to the enforcement of remedies by the First-Lien Security Agent and the First-Lien Secured Parties, any Person or Persons (in each case who must meet all eligibility standards contained in all relevant First-Lien Documents) at any time or from time to time designated by the holders of more than 50% in aggregate outstanding principal amount of the ABL Obligations under the ABL Credit Agreement (an “Eligible ABL Purchaser”) shall have the right to purchase by way of assignment (and shall thereby also assume all commitments and duties of the First-Lien Secured Parties), at any time during the exercise period described in clause (iii) below of this Section 5.3(a), all, but not less than all, of the First-Lien Obligations (other than Excess First-Lien Obligations (unless such Eligible ABL Purchaser so elects in its sole discretion) and the First-Lien Obligations of a Defaulting First-Lien Secured Party), including all

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principal of and accrued and unpaid interest and fees on and all prepayment or acceleration penalties and premiums in respect of all such First-Lien Obligations outstanding at the time of purchase; provided that at the time of (and as a condition to) any purchase pursuant to this Section 5.3(a), all commitments pursuant to any then outstanding First-Lien Credit Agreement shall have terminated and all First-Lien Secured Hedging Agreements also shall have been terminated in accordance with their terms.  Any purchase pursuant to this Section 5.3(a)(i) shall be made as follows:

(1)for a purchase price equal to the sum of (A) in the case of all loans, advances or other similar extensions of credit that constitute First-Lien Obligations (other than Excess First-Lien Obligations, subject to the election of the Eligible ABL Purchaser ), 100% of the principal amount thereof and all accrued and unpaid interest thereon through the date of purchase (without regard, however, to any acceleration prepayment penalties or premiums other than customary breakage costs), (B) in the case of any First-Lien Secured Hedging Agreement, the aggregate amount then owing to each First-Lien Hedging Creditor (which is a First-Lien Secured Party) thereunder pursuant to the terms of the respective First-Lien Secured Hedging Agreement, including, without limitation, all amounts owing to such First-Lien Hedging Creditor as a result of the termination (or early termination) thereof (in each case, to the extent of its interest as a First-Lien Secured Party) and (C) all accrued and unpaid fees, expenses, indemnities and other amounts (other than any prepayment penalties or premiums or similar fees or any contingent indemnification or expense reimbursement obligations) through the date of purchase;

(2)with the purchase price described in preceding clause (i)(1) payable in cash on the date of purchase against transfer to the respective Eligible ABL Purchaser or Eligible ABL Purchasers, as the case may be, (without recourse and without any representations or warranties whatsoever, whether as to the enforceability of any First-Lien Obligation or the validity, enforceability, perfection, priority or sufficiency of any Lien securing, or guarantee or other supporting obligation for, any First-Lien Obligation or as to any other matter whatsoever, except the representations and warranties (1) that the transferor owns free and clear of all Liens and encumbrances (other than participation interests not prohibited by the First-Lien Credit Agreement, in which case the purchase price described in preceding clause (i)(1) shall be appropriately adjusted so that the Eligible ABL Purchaser or Eligible ABL Purchasers, as the case may be, do not pay amounts represented by any participation interest which remains in effect), and has the right to convey, whatever claims and interests it may have in respect of the First-Lien Obligations and (2) as to the amount of its portion of the First-Lien Obligations being acquired);

(3)with the purchase price described in preceding clause (i)(1) accompanied by a waiver by the ABL Agent, on behalf of itself and the ABL Secured Parties, of all claims arising out of this Agreement and the transactions contemplated hereby as a result of exercising the purchase option contemplated by this Section 5.3(a);

(4)with all amounts payable to the various First-Lien Secured Parties in respect of the assignments described above to be distributed to them by the First-Lien Security Agent in accordance with their respective holdings of the various First-Lien Obligations; and

(5)with such purchase to be made pursuant to assignment documentation in form and substance reasonably satisfactory to, and prepared by counsel for, the First-Lien Security Agent (with the cost of such counsel to be paid by the Grantors or, if the Grantors do not make such payment, by the respective Eligible ABL Purchaser or Eligible ABL Purchasers, as the case may be, who shall have the right to obtain reimbursement of same

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from the Grantors) which shall also be in form and substance reasonably satisfactory to the Eligible ABL Purchasers; it being understood and agreed that the First-Lien Security Agent and each other First-Lien Secured Party shall retain all rights to indemnification as provided in the relevant First-Lien Documents for all periods prior to any assignment by them pursuant to the provisions of this Section 5.3(a).

(ii)The right to exercise the purchase option described in Section 5.3(a)(i) above shall be exercisable and legally enforceable upon at least ten (10) Business Days’ prior written notice of exercise (which notice, once given, (A) shall be irrevocable and fully binding on the respective Eligible ABL Purchaser or Eligible ABL Purchasers, as the case may be, except as provided in clause (iii) below and (B) shall specify a date of purchase not less than five (5) Business Days, nor more than thirty (30) calendar days, after the date of the receipt by the First-Lien Security Agent of such notice) given to the First-Lien Security Agent by an Eligible ABL Purchaser.  Neither the First-Lien Security Agent nor any First-Lien Secured Party shall have any disclosure obligation to any Eligible ABL Purchaser, the ABL Agent or any ABL Secured Party in connection with any exercise of such purchase option.

(iii)The right to purchase the First-Lien Obligations as described in this Section 5.3(a) may be exercised (by giving the irrevocable written notice described in the preceding clause (ii)) during the period that (1) begins on the date occurring three (3) Business Days after the first to occur of (x) the date of the acceleration of the final maturity of the loans under the First-Lien Credit Agreement, (y) the occurrence of the final maturity of the loans under the First-Lien Credit Agreement or (z) the occurrence of an Insolvency or Liquidation Proceeding with respect to the Company or any other Grantor which constitutes an event of default under the First-Lien Credit Agreement (in each case, so long as the acceleration, failure to pay amounts due at final maturity or such Insolvency or Liquidation Proceeding constituting an event of default has not been rescinded or cured within ten (10) Business Days after any such event, and so long as any unpaid amounts constituting First-Lien Obligations remain owing); provided that if there is any failure to meet the condition described in the proviso of preceding clause (i) hereof, the aforementioned date shall be extended until the first date upon which such condition is satisfied, and (2) ends on the 120th day after the start of the period described in clause (1) above.

(iv)The obligations of the First-Lien Secured Parties to sell their respective First-Lien Obligations under this Section 5.3(a) are several and are not joint and several.  To the extent any First-Lien Secured Party breaches its obligation to sell its First-Lien Obligations under this Section 5.3(a) (a “Defaulting First-Lien Secured Party”), nothing in this Section 5.3(a) shall be deemed to require the First-Lien Security Agent or any First-Lien Secured Party to purchase such Defaulting First-Lien Secured Party’s First-Lien Obligations for resale to the holders of the ABL Obligations or the holders of the Second-Lien Obligations, as the case may be, and in all cases, the First-Lien Security Agent and each First-Lien Secured Party complying with the terms of this Section 5.3(a) shall not be deemed to be in default of this Agreement or otherwise be deemed liable for any action or inaction of any Defaulting First-Lien Secured Party; provided that nothing in this clause (iv) shall require any Eligible ABL Purchaser to purchase less than all of the First-Lien Obligations.

(v)Each Grantor irrevocably consents to any assignment effected to one or more Eligible ABL Purchasers pursuant to this Section 5.3(a) (so long as they meet all eligibility standards contained in all relevant First-Lien Documents, other than obtaining the consent of any Grantor to an assignment to the extent required by such First-Lien Documents) for purposes of all First-Lien Documents and hereby agrees that no further consent to any such assignment pursuant to this Section 5.3(a) from such Grantor shall be required.

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(b)Option to Purchase ABL Obligations.

(i)Without prejudice to the enforcement of remedies by the ABL Agent and the ABL Secured Parties, any Person or Persons (in each case who must meet all eligibility standards contained in all relevant ABL Documents) at any time or from time to time designated by the holders of more than 50% in aggregate outstanding principal amount of the First-Lien Obligations under the First-Lien Credit Agreement (an “Eligible First-Lien Purchaser”) (provided that, in the case of this Section 5.3(b), a Person meeting all eligibility standards contained in all relevant ABL Documents shall constitute an Eligible First-Lien Purchaser irrespective of whether such Person meets the eligibility standards contained in the First-Lien Documents), in each case, shall have the right to purchase by way of assignment (and shall thereby also assume all commitments and duties of the ABL Secured Parties other than in respect of services giving rise to ABL Bank Product Obligations), at any time during the exercise period described in clause (iii) below of this Section 5.3(b), all, but not less than all, of the ABL Obligations (other than Excess ABL Obligations (unless such Eligible First-Lien Purchaser so elects in its sole discretion) and the ABL Obligations of a Defaulting ABL Secured Party), including all principal of and accrued and unpaid interest and fees on and all prepayment or acceleration penalties and premiums in respect of all ABL Priority Obligations outstanding at the time of purchase; provided that at the time of (and as a condition to) any purchase pursuant to this Section 5.3(b), all commitments pursuant to any then outstanding ABL Credit Agreement shall have terminated.  Any purchase pursuant to this Section 5.3(b)(i) shall be made as follows:

(1)for (x) a purchase price equal to the sum of (A) in the case of all loans, advances or other similar extensions of credit that constitute ABL Obligations (other than Excess ABL Obligations, subject to the election of the Eligible First-Lien Purchaser and including unreimbursed amounts drawn in respect of letters of credit, but excluding the undrawn amount of then outstanding letters of credit and excluding ABL Bank Product Obligations), 100% of the principal amount thereof and all accrued and unpaid interest thereon through the date of purchase (without regard, however, to any acceleration or other prepayment penalties or premiums other than customary breakage costs), (B) in the case of any ABL Bank Product Obligations, cash collateral in such amounts as the ABL Agent reasonably determines is necessary to secure the ABL Agent and the other ABL Secured Parties in connection with such ABL Bank Product Obligations, (C) in the case of the undrawn amount of then outstanding letters of credit, cash collateral in the amount of 105% of the aggregate undrawn amount of such letters of credit, and (D) all accrued and unpaid fees, expenses, indemnities and other amounts (other than any prepayment penalties or premiums or similar fees) through the date of purchase; and (y) an obligation on the part of the respective Eligible First-Lien Purchasers (which shall be expressly provided in the assignment documentation described below) to reimburse each issuing lender (or any ABL Secured Party required to pay same) for all amounts thereafter drawn with respect to any letters of credit constituting ABL Obligations which remain outstanding after the date of any purchase pursuant to this Section 5.3(b), together with all facing fees and other amounts which may at any future time be owing to the respective issuing lender with respect to such letters of credit; it being understood and agreed that (x) if at any time those amounts (if any) then on deposit with the ABL Agent as described in clause (C) above exceed 105% of the sum of the aggregate undrawn amount of all then outstanding letters of credit, such excess shall be returned to the respective Eligible First-Lien Purchaser or Eligible First-Lien Purchasers, as the case may be, (as their interests appear), (y) at such time as all letters of credit have been cancelled, expired or been fully drawn, as the case may be, any excess cash collateral deposited as described above in clause (C) (and not previously applied or released as provided above) shall be returned to the respective Eligible First-Lien Purchaser or

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Eligible First-Lien Purchasers, as the case may be, as their interests appear and (z) at such time as all ABL Bank Product Agreements have been terminated, any excess cash collateral deposited as described above in clause (B) (and not previously applied or released as provided above) shall be returned to the respective Eligible First-Lien Purchaser or Eligible First-Lien Purchasers, as the case may be, as their interests appear;

(2)with the purchase price described in the preceding clause (i)(1)(x) payable in cash on the date of purchase against transfer to the respective Eligible First-Lien Purchaser or Eligible First-Lien Purchasers, as the case may be (without recourse and without any representations or warranties whatsoever, whether as to the enforceability of any ABL Obligation or the validity, enforceability, perfection, priority or sufficiency of any Lien securing, or guarantee or other supporting obligation for, any ABL Obligation or as to any other matter whatsoever, except the representations and warranties (1) that the transferor owns free and clear of all Liens and encumbrances (other than participation interests not prohibited by the ABL Credit Agreement, in which case the purchase price described in the preceding clause (i)(1)(x) shall be appropriately adjusted so that the Eligible First-Lien Purchaser or Eligible First-Lien Purchasers, as the case may be, do not pay amounts represented by any participation interest which remains in effect), and has the right to convey, whatever claims and interests it may have in respect of the ABL Obligations) and (2) as to the amount of its portion of the ABL Obligations being acquired; provided that the purchase price in respect of any outstanding letter of credit that remains undrawn on the date of purchase shall be payable in cash as and when such letter of credit is drawn upon (i) first, from the cash collateral account described in clause (i)(1)(x)(C) above, until the amounts contained therein have been exhausted, and (ii) thereafter, directly by the respective Eligible First-Lien Purchaser or Eligible First-Lien Purchasers, as the case may be;

(3)with the purchase price described in the preceding clause (i)(1)(x) accompanied by a waiver by the First-Lien Security Agent, on behalf of itself and the other First-Lien Secured Parties, of all claims arising out of this Agreement and the transactions contemplated hereby as a result of exercising the purchase option contemplated by this Section 5.3(b);

(4)with all amounts payable to the various ABL Secured Parties in respect of the assignments described above to be distributed to them by the ABL Agent in accordance with their respective holdings of the various ABL Obligations; and

(5)with such purchase to be made pursuant to assignment documentation in form and substance reasonably satisfactory to, and prepared by counsel for, the ABL Agent (with the cost of such counsel to be paid by the Grantors or, if the Grantors do not make such payment, by the respective Eligible First-Lien Purchaser or Eligible First-Lien Purchasers, as the case may be, who shall have the right to obtain reimbursement of same from the Grantors), which shall also be in form and substance reasonably satisfactory to the Eligible First-Lien Purchasers; it being understood and agreed that the ABL Agent and each other ABL Secured Party shall retain all rights to indemnification as provided in the relevant ABL Documents for all periods prior to any assignment by them pursuant to the provisions of this Section 5.3(b).

(ii)The right to exercise the purchase option described in Section 5.3(b)(i) above shall be exercisable and legally enforceable upon at least five (5) Business Days’ prior written notice of exercise (which notice, once given, (A) shall be irrevocable and fully binding on the respective Eligible First-Lien Purchaser or Eligible First-Lien Purchasers, as the case may be,

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except as provided in clause (iii) below and (B) shall specify a date of purchase not less than five (5) Business Days, nor more than thirty (30) calendar days, after the date of the receipt by the ABL Agent of such notice) given to the ABL Agent by an Eligible First-Lien Purchaser.  Neither the ABL Agent nor any ABL Secured Party shall have any disclosure obligation to any Eligible First-Lien Purchaser, the First-Lien Security Agent or any First-Lien Secured Party in connection with any exercise of such purchase option.

(iii)The right to purchase the ABL Obligations as described in this Section 5.3(b) may be exercised (by giving the irrevocable written notice described in the preceding clause (ii)) during the period that (1) begins on the date occurring three (3) Business Days after the first to occur of (x) the date of the acceleration of the final maturity of the loans under the ABL Credit Agreement, (y) the occurrence of the final maturity of the loans under the ABL Credit Agreement or (z) the occurrence of an Insolvency or Liquidation Proceeding with respect to the Company or any Grantor which constitutes an event of default under the ABL Credit Agreement (in each case, so long as the acceleration, failure to pay amounts due at final maturity or such Insolvency or Liquidation Proceeding constituting an event of default has not been rescinded or cured within 10 Business Days after any such event, and so long as any unpaid amounts constituting ABL Obligations remain owing); provided that if there is any failure to meet the condition described in the proviso of preceding clause (i) hereof, the aforementioned date shall be extended until the first date upon which such condition is satisfied, and (2) ends on the 120th day after the start of the period described in clause (1) above.

(iv)The obligations of the ABL Secured Parties to sell their respective ABL Obligations under this Section 5.3(b) are several and not joint and several.  To the extent any ABL Secured Party breaches its obligation to sell its ABL Obligations under this Section 5.3(b) (a “Defaulting ABL Secured Party”), nothing in this Section 5.3(b) shall be deemed to require the ABL Agent or any other ABL Secured Party to purchase such Defaulting ABL Secured Party’s ABL Obligations for resale to the holders of First-Lien Obligations or the holders of Second-Lien Obligations, as the case may be, and in all cases, the ABL Agent and each ABL Secured Party complying with the terms of this Section 5.3(b) shall not be deemed to be in default of this Agreement or otherwise be deemed liable for any action or inaction of any Defaulting ABL Secured Party; provided that nothing in this clause (iv) shall require any Eligible First-Lien Purchaser to purchase less than all of the ABL Obligations.

(v)Each Grantor irrevocably consents to any assignment effected to one or more Eligible First-Lien Purchasers pursuant to this Section 5.3(b) (so long as they meet all eligibility standards contained in all relevant ABL Documents other than obtaining the consent of any Grantor to an assignment to the extent required by such ABL Documents) for purposes of all ABL Documents hereby agrees that no further consent to any such assignment pursuant to this Section 5.3(b) from such Grantor shall be required.

5.4Insolvency or Liquidation Proceedings Generally.

(a)No Waiver.

(i)Subject to the proviso in clause (ii) of Section 3.1(a), nothing contained herein shall prohibit or in any way limit the First-Lien Security Agent or any First-Lien Secured Party from objecting in any Insolvency or Liquidation Proceeding or otherwise to any action taken by the ABL Agent, any ABL Secured Party, the Second-Lien Security Agent or any Second-Lien Secured Parties in respect of the Term Loan Priority Collateral, including the seeking by the ABL Agent, any ABL Secured Party, the Second-Lien Security Agent or any Second-Lien Secured

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Parties of adequate protection in respect thereof or the asserting by the ABL Agent, any ABL Secured Party, the Second-Lien Security Agent or any Second-Lien Secured Parties of any of its rights and remedies under the ABL Documents or the Second-Lien Documents, as the case may be, or otherwise in respect thereof.

(ii)Subject to the proviso in clause (ii) of Section 3.1(a), nothing contained herein shall prohibit or in any way limit the Second-Lien Security Agent or any Second-Lien Secured Party from objecting in any Insolvency or Liquidation Proceeding or otherwise to any action taken by the ABL Agent or any ABL Secured Parties in respect of the Term Loan Priority Collateral, including the seeking by the ABL Agent or any ABL Secured Parties of adequate protection in respect thereof or the asserting by the ABL Agent or any ABL Secured Parties of any of its rights and remedies under the ABL Documents or otherwise in respect thereof.

(iii)Subject to the proviso in clause (ii) of Section 4.1(a), nothing contained herein shall prohibit or in any way limit the ABL Agent or any ABL Secured Party from objecting in any Insolvency or Liquidation Proceeding or otherwise to any action taken by the First-Lien Security Agent, any First-Lien Secured Parties, the Second-Lien Security Agent or any Second-Lien Secured Parties in respect of the ABL Priority Collateral, including the seeking by the First-Lien Security Agent, any First-Lien Secured Parties, the Second-Lien Security Agent or any Second-Lien Secured Parties of adequate protection in respect thereof or the asserting by the First-Lien Security Agent, any First-Lien Secured Parties, the Second-Lien Security Agent or any Second-Lien Secured Parties of any of its rights and remedies under the First-Lien Documents or the Second-Lien Documents, as the case may be, or otherwise in respect thereof.

(iv)Nothing contained herein shall prohibit or in any way limit the First-Lien Security Agent or any First-Lien Secured Party, the Second-Lien Security Agent or any Second-Lien Secured Party, or the ABL Agent or any ABL Secured Party from seeking in any Insolvency or Liquidation Proceeding the allowance or payment of current incurred fees and expenses (as adequate protection or otherwise), subject to the right of the First-Lien Security Agent and the ABL Agent to object to the reasonableness of the amounts of fees and expenses so sought by the Second-Lien Security Agent or any Second-Lien Secured Party and so long as the ABL Secured Parties and First-Lien Secured Parties are receiving similar incurred fees and expenses in at least the same form being requested by the Second-Lien Security Agent or any Second-Lien Secured Party.  Notwithstanding any other provision in this Agreement, the Second-Lien Security Agent, on behalf of any Second-Lien Secured Party, shall be entitled to keep and apply all such fees and expenses so allowed or received under the Bankruptcy Code or other applicable Bankruptcy Law, and shall not be required to pay over any such amounts to the First-Lien Security Agent or ABL Agent (as applicable); provided, however, to the extent that any such payments are later recharacterized as payments of principal by the applicable bankruptcy court, such payments shall, upon such recharacterization, be turned over to the ABL Agent or  the First-Lien Security Agent in accordance with Section 3.3 or 4.3, as applicable, and applied in accordance with Section 7 hereof.

(b)Reorganization Securities.  If, in any Insolvency or Liquidation Proceeding, debt obligations of the reorganized debtor secured by Liens upon any property of the reorganized debtor are distributed, pursuant to a plan of reorganization or similar dispositive restructuring plan, on account of any two or more of the First-Lien Obligations, the Second-Lien Obligations and the ABL Obligations, then, to the extent the debt obligations distributed on account of such First-Lien Obligations, such Second-Lien Obligations or such ABL Obligations are secured by Liens upon the same property, the provisions of this Agreement will survive the distribution of such debt obligations pursuant to such plan and will apply with like effect to the Liens securing such debt obligations.

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(c)Post-Petition Interest.

(i)None of the ABL Agent, any ABL Secured Party, the Second-Lien Security Agent or any Second-Lien Secured Party shall oppose or seek to challenge any claim by the First-Lien Security Agent or any First-Lien Secured Party for allowance in any Insolvency or Liquidation Proceeding of First-Lien Obligations consisting of post-petition interest, fees or expenses to the extent of the value of the First-Lien Secured Party’s Lien on the Term Loan Priority Collateral (without regard to the existence of the junior Liens of the ABL Agent, on behalf of the ABL Secured Parties, or the Second-Lien Security Agent, on behalf of the Second-Lien Secured Parties, as the case may be, on the Term Loan Priority Collateral) or the ABL Priority Collateral (after taking into account the existence of the senior Liens on the ABL Priority Collateral of the ABL Agent, on behalf of the ABL Secured Parties, on the ABL Priority Collateral, but without regard to the existence of the junior Lien of the Second-Lien Security Agent, on behalf of the Second-Lien Secured Parties, on the ABL Priority Collateral).

(ii)None of the First-Lien Security Agent, any First-Lien Secured Party, the Second-Lien Security Agent or any Second-Lien Secured Party shall oppose or seek to challenge any claim by the ABL Agent or any ABL Secured Party for allowance in any Insolvency or Liquidation Proceeding of ABL Obligations consisting of post-petition interest, fees or expenses to the extent of the value of the ABL Secured Party’s Lien on the Term Loan Priority Collateral (after taking into account the existence of the senior Liens of the First-Lien Security Agent, on behalf of the First-Lien Secured Parties and the Second-Lien Security Agent, on behalf of the Second-Lien Secured Parties, as the case may be, on the Term Loan Priority Collateral) or the ABL Priority Collateral (without regard to the existence of the junior Liens of the First-Lien Security Agent, on behalf of the First-Lien Secured Parties, or the Second-Lien Security Agent, on behalf of the Second-Lien Secured Parties, on the ABL Priority Collateral).

(iii)So long as the ABL Secured Parties and First-Lien Secured Parties are receiving post-petition interest in at least the same form being requested by the Second-Lien Security Agent or any Second-Lien Secured Party nothing herein shall prohibit the Second-Lien Security Agent or any Second-Lien Secured Party from seeking the allowance of a claim in any Insolvency or Liquidation Proceeding for Second-Lien Obligations consisting of post-petition interest to the extent of the value of the Second-Lien Secured Party’s Lien on the Term Loan Priority Collateral (after taking into account the existence of the senior Liens of the First-Lien Security Agent, on behalf of the First-Lien Secured Parties on the Term Loan Priority Collateral, but without regard to the existence of the junior Lien of the ABL Agent, on behalf of the ABL Secured Parties, on the Term Loan Priority Collateral) or the ABL Priority Collateral (after taking into account the existence of the senior Liens of the ABL Agent, on behalf of the ABL Secured Parties, and the First-Lien Security Agent, on behalf of the First-Lien Secured Parties, as the case may be, on the ABL Priority Collateral); provided, however, to the extent that any such payments are later recharacterized as payments of principal by the applicable bankruptcy court, such payments shall, upon such recharacterization, be turned over to the ABL Agent or  the First-Lien Security Agent in accordance with Section 3.3 or 4.3, as applicable, and applied in accordance with Section 7 hereof.

(d)Waiver.

(i)The ABL Agent, on behalf of itself and the ABL Secured Parties, waives any claim it may hereafter have against any First-Lien Secured Party or any Second-Lien Secured Party arising out of the election of such First-Lien Secured Party or Second-Lien Secured Party, as the case may be, of the application of Section 1111(b)(2) of the Bankruptcy Code, and/or out

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of any cash collateral or financing arrangement or out of any grant of a security interest in connection with the Term Loan Priority Collateral in any Insolvency or Liquidation Proceeding.

(ii)Each of the First-Lien Security Agent, on behalf of itself and the First-Lien Secured Parties, and the Second-Lien Security Agent, on behalf of itself and the Second-Lien Secured Parties, waives any claim it may hereafter have against any ABL Secured Party arising out of the election of such ABL Secured Party of the application of Section 1111(b)(2) of the Bankruptcy Code, and/or out of any cash collateral or financing arrangement or out of any grant of a security interest in connection with the ABL Priority Collateral in any Insolvency or Liquidation Proceeding.

(iii)The Second-Lien Security Agent, on behalf of itself and the Second-Lien Secured Parties, waives any claim it may hereafter have against any First-Lien Secured Party arising out of the election of such First-Lien Secured Party of the application of Section 1111(b)(2) of the Bankruptcy Code, and/or out of any cash collateral or financing arrangement or out of any grant of a security interest in connection with the Term Loan Priority Collateral or the ABL Priority Collateral in any Insolvency or Liquidation Proceeding.

5.5Reliance; Waivers; Etc.

(a)Reliance.

(i)Other than any reliance on the terms of this Agreement, the ABL Agent, on behalf of itself and the ABL Secured Parties, acknowledges that it and such ABL Secured Parties have, independently and without reliance on the First-Lien Security Agent, any First-Lien Secured Parties, the Second-Lien Security Agent or any Second-Lien Secured Parties, and based on documents and information deemed by them appropriate, made their own credit analysis and decision to enter into the ABL Documents and be bound by the terms of this Agreement and they will continue to make their own credit decision in taking or not taking any action under the ABL Credit Agreement or this Agreement.

(ii)Other than any reliance on the terms of this Agreement, the First-Lien Security Agent, on behalf of itself and the First-Lien Secured Parties, acknowledges that it and such First-Lien Secured Parties have, independently and without reliance on the ABL Agent, any ABL Secured Parties, the Second-Lien Security Agent or any Second-Lien Secured Parties, and based on documents and information deemed by them appropriate, made their own credit analysis and decision to enter into the First-Lien Documents and be bound by the terms of this Agreement and they will continue to make their own credit decision in taking or not taking any action under the First-Lien Credit Agreement or this Agreement.

(iii)Other than any reliance on the terms of this Agreement, the Second-Lien Security Agent, on behalf of itself and the Second-Lien Secured Parties, acknowledges that it and such Second-Lien Secured Parties have, independently and without reliance on the ABL Agent, any ABL Secured Parties, the First-Lien Security Agent or any First-Lien Secured Parties, and based on documents and information deemed by them appropriate, made their own credit analysis and decision to enter into the Second-Lien Documents and be bound by the terms of this Agreement and they will continue to make their own credit decision in taking or not taking any action under the Second-Lien Credit Agreement or this Agreement.

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(b)No Warranties or Liability.

(i)Each of the First-Lien Security Agent, on behalf of itself and the First-Lien Secured Parties, and the Second-Lien Security Agent, on behalf of itself and the Second-Lien Secured Parties, acknowledges and agrees that the ABL Agent and the ABL Secured Parties have made no express or implied representation or warranty, including with respect to the execution, validity, legality, completeness, collectability or enforceability of any of the ABL Documents, the ownership of any Collateral or the perfection or priority of any Liens thereon.  The ABL Secured Parties will be entitled to manage and supervise their respective loans and extensions of credit under their respective ABL Documents in accordance with law and as they may otherwise, in their sole discretion, deem appropriate.  The ABL Agent and the ABL Secured Parties shall have no duty to the First-Lien Security Agent, any of the First-Lien Secured Parties, the Second-Lien Security Agent or any of the Second-Lien Secured Parties to act or refrain from acting in a manner which allows, or results in, the occurrence or continuance of an event of default or default under any agreements with the Company or any other Grantor (including the ABL Documents, the First-Lien Documents and the Second-Lien Documents), regardless of any knowledge thereof which they may have or be charged with.

(ii)Each of the ABL Agent, on behalf of itself and the ABL Secured Parties, and the Second-Lien Security Agent, on behalf of itself and the Second-Lien Secured Parties, acknowledges and agrees that the First-Lien Security Agent and the First-Lien Secured Parties have made no express or implied representation or warranty, including with respect to the execution, validity, legality, completeness, collectability or enforceability of any of the First-Lien Documents, the ownership of any Collateral or the perfection or priority of any Liens thereon.  The First-Lien Secured Parties will be entitled to manage and supervise their respective loans and extensions of credit under their respective First-Lien Documents in accordance with law and as they may otherwise, in their sole discretion, deem appropriate.  The First-Lien Security Agent and the First-Lien Secured Parties shall have no duty to the ABL Agent, any of the ABL Secured Parties, the Second-Lien Security Agent or any of the Second-Lien Secured Parties to act or refrain from acting in a manner which allows, or results in, the occurrence or continuance of an event of default or default under any agreements with the Company or any other Grantor (including the ABL Documents, the First-Lien Documents and the Second-Lien Documents), regardless of any knowledge thereof which they may have or be charged with.

(iii)Each of the ABL Agent, on behalf of itself and the ABL Secured Parties, and the First-Lien Security Agent, on behalf of itself and the First-Lien Secured Parties, acknowledges and agrees that the Second-Lien Security Agent and the Second-Lien Secured Parties have made no express or implied representation or warranty, including with respect to the execution, validity, legality, completeness, collectability or enforceability of any of the Second-Lien Documents, the ownership of any Collateral or the perfection or priority of any Liens thereon.  The Second-Lien Secured Parties will be entitled to manage and supervise their respective loans and extensions of credit under their respective Second-Lien Documents in accordance with law and as they may otherwise, in their sole discretion, deem appropriate.  The Second-Lien Security Agent and the Second-Lien Secured Parties shall have no duty to the ABL Agent, any of the ABL Secured Parties, the First-Lien Security Agent or any of the First-Lien Secured Parties to act or refrain from acting in a manner which allows, or results in, the occurrence or continuance of an event of default or default under any agreements with the Company or any other Grantor (including the ABL Documents, the First-Lien Documents and the Second-Lien Documents), regardless of any knowledge thereof which they may have or be charged with.

(c)No Waiver of Lien Priorities — ABL Obligations.

(i)No right of the ABL Secured Parties, the ABL Agent or any of them to enforce

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any provision of this Agreement or any ABL Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor or by any act or failure to act by any ABL Secured Party or the ABL Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the ABL Documents, any of the First-Lien Documents or any of the Second-Lien Documents, regardless of any knowledge thereof which the ABL Agent or the ABL Secured Parties, or any of them, may have or be otherwise charged with.

(ii)Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company and the other Grantors under the ABL Documents and subject to the provisions of Sections 4.5(d) and 5.1(c)), the ABL Secured Parties, the ABL Agent or any of them may, at any time and from time to time in accordance with the ABL Documents and/or applicable law, without the consent of, or notice to, the First-Lien Security Agent, any First-Lien Secured Party, the Second-Lien Security Agent or any Second-Lien Secured Party, without incurring any liabilities to the First-Lien Security Agent, any First-Lien Secured Parties, the Second-Lien Security Agent or any Second-Lien Secured Parties and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the First-Lien Security Agent, any First-Lien Secured Party, the Second-Lien Security Agent or any Second-Lien Secured Party is affected, impaired or extinguished thereby) do any one or more of the following:

(A)Subject to the ABL Debt Cap (but excluding, for the avoidance of doubt, any ABL DIP Financing provided by the ABL Secured Parties), make loans and advances to any Grantor or issue, guaranty or obtain letters of credit for account of any Grantor or otherwise extend credit to any Grantor, in any amount and on any terms, whether pursuant to a commitment or as a discretionary advance and whether or not any default or event of default or failure of condition is then continuing;

(B)change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the ABL Obligations or any Lien on any ABL Priority Collateral or guaranty thereof or any liability of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the ABL Obligations, without any restriction as to the amount, tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens on the ABL Priority Collateral held by the ABL Agent or any of the ABL Secured Parties, the ABL Obligations or any of the ABL Documents;

(C)sell, exchange, realize upon, enforce or otherwise deal with in any manner (subject to the terms hereof) and in any order any part of the ABL Priority Collateral or any liability of the Company or any other Grantor to the ABL Secured Parties or the ABL Agent, or any liability incurred directly or indirectly in respect thereof;

(D)settle or compromise any ABL Obligation or any other liability of the Company or any other Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof; and

(E)exercise or delay in or refrain from exercising any right or remedy against the Company or any other Grantor or any other Person, elect any remedy and otherwise deal freely with the Company, any other Grantor or any ABL Priority Collateral and any security and any guarantor or any liability of the Company or any other Grantor to the ABL Secured Parties or any

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liability incurred directly or indirectly in respect thereof.

(iii)Each of the First-Lien Security Agent, on behalf of itself and the First-Lien Secured Parties, and the Second-Lien Security Agent, on behalf of itself and the Second-Lien Secured Parties, also agrees that the ABL Secured Parties and the ABL Agent shall have no liability to the First-Lien Security Agent, any First-Lien Secured Party, the Second-Lien Security Agent or any Second-Lien Secured Party, and the First-Lien Security Agent, on behalf of itself and the First-Lien Secured Parties, hereby waives any claim against any ABL Secured Party or the ABL Agent, arising out of any and all actions which the ABL Secured Parties or the ABL Agent may take or permit or omit to take with respect to:

(A)the ABL Documents (other than this Agreement);

(B)the collection of the ABL Obligations; or

(C)the foreclosure upon, or sale, liquidation or other disposition of, any ABL Priority Collateral.

Each of the First-Lien Security Agent, on behalf of itself and the First-Lien Secured Parties, and the Second-Lien Security Agent, on behalf of itself and the Second-Lien Secured Parties, agrees that the ABL Secured Parties and the ABL Agent have no duty to the First-Lien Security Agent, the First-Lien Secured Parties, the Second-Lien Security Agent or the Second-Lien Secured Parties in respect of the maintenance or preservation of the ABL Priority Collateral, the ABL Obligations or otherwise.

(d)No Waiver of Lien Priorities — First-Lien Obligations.

(i)No right of the First-Lien Secured Parties, the First-Lien Security Agent or any of them to enforce any provision of this Agreement or any First-Lien Document, shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor or by any act or failure to act by any First-Lien Secured Party or the First-Lien Security Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the First-Lien Documents, any of the Second-Lien Documents or any of the ABL Documents, regardless of any knowledge thereof which the First-Lien Security Agent or the First-Lien Secured Parties, or any of them, may have or be otherwise charged with.

(ii)Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company and the other Grantors under the First-Lien Documents and subject to the provisions of Sections 3.5(c) and 5.1(a)), the First-Lien Secured Parties, the First-Lien Security Agent or any of them may, at any time and from time to time in accordance with the First-Lien Documents and/or applicable law, without the consent of, or notice to, the Second-Lien Security Agent, any Second-Lien Secured Party, the ABL Agent or any ABL Secured Party, without incurring any liabilities to the Second-Lien Security Agent, any Second-Lien Secured Party, the ABL Agent or any ABL Secured Party and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the Second-Lien Security Agent, any Second-Lien Secured Party, the ABL Agent or any ABL Secured Party is affected, impaired or extinguished thereby) do any one or more of the following:

(1)subject to the First-Lien Debt Cap (but excluding, for the avoidance of doubt, any First-Lien DIP Financing provided by the First-Lien Secured Parties), make loans and

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advances to any Grantor or issue, guaranty or obtain letters of credit for account of any Grantor or otherwise extend credit to any Grantor, in any amount and on any terms, whether pursuant to a commitment or as a discretionary advance and whether or not any default or event of default or failure of condition is then continuing;

(2)change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First-Lien Obligations or any First-Lien on any Term Loan Priority Collateral or, after Discharge of the ABL Obligations, any ABL Priority Collateral, or guaranty thereof or any liability of any of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First-Lien Obligations, without any restriction as to the amount, tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any First-Lien on the Term Loan Priority Collateral or, after Discharge of ABL Obligations, the ABL Priority Collateral, held by the First-Lien Security Agent or any of the First-Lien Secured Parties, the First-Lien Obligations or any of the First-Lien Documents;

(3)sell, exchange, realize upon, enforce or otherwise deal with in any manner (subject to the terms hereof) and in any order any part of the Term Loan Priority Collateral, or, after Discharge of ABL Obligations, the ABL Priority Collateral, or any liability of the Company or any other Grantor to the First-Lien Secured Parties or the First-Lien Security Agent, or any liability incurred directly or indirectly in respect thereof;

(4)settle or compromise any First-Lien Obligation or any other liability of the Company or any other Grantor or any security therefor or any liability, in each case, incurred directly or indirectly in respect thereof; and

(5)exercise, or delay in, or refrain from, exercising any right or remedy against the Company or any other Grantor or any other Person, elect any remedy and otherwise deal freely with the Company, any other Grantor or any Term Loan Priority Collateral, or, after Discharge of ABL Obligations, the ABL Priority Collateral, and any security and any guarantor or any liability of the Company or any other Grantor to the First-Lien Secured Parties or any liability incurred directly or indirectly in respect thereof.

(iii)Each of the ABL Agent, on behalf of itself and the ABL Secured Parties, and the Second-Lien Security Agent, on behalf of itself and the Second-Lien Secured Parties, also agrees that the First-Lien Secured Parties and the First-Lien Security Agent shall have no liability to the ABL Agent, any ABL Secured Party, the Second-Lien Security Agent or any Second-Lien Secured Party, and each of the ABL Agent, on behalf of itself and the ABL Secured Parties, and the Second-Lien Security Agent, on behalf of itself and the Second-Lien Secured Parties, hereby waives any claim against any First-Lien Secured Party or the First-Lien Security Agent, arising out of any and all actions which the First-Lien Secured Parties or the First-Lien Security Agent may take or permit or omit to take with respect to:

(1)the First-Lien Documents (other than this Agreement);

(2)the collection of the First-Lien Obligations; or

(3)the foreclosure upon, or sale, liquidation or other disposition of, any Term Loan Priority Collateral or, after Discharge of ABL Obligations, the ABL Priority Collateral.

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Except as otherwise required by this Agreement, each of the ABL Agent, on behalf of itself and the ABL Secured Parties, and the Second-Lien Security Agent, on behalf of itself and the Second-Lien Secured Parties, agrees that the First-Lien Secured Parties and the First-Lien Security Agent have no duty to the ABL Agent, the ABL Secured Parties, the Second-Lien Security Agent or the Second-Lien Secured Parties in respect of the maintenance or preservation of the Term Loan Priority Collateral or, after Discharge of ABL Obligations, the ABL Priority Collateral, the First-Lien Obligations or otherwise.

(iv)Each of the ABL Agent, on behalf of itself and the ABL Secured Parties, and the Second-Lien Security Agent, on behalf of itself and the Second-Lien Secured Parties, agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of, any marshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Term Loan Priority Collateral, or, after Discharge of ABL Obligations, the ABL Priority Collateral, or any other similar rights a junior secured creditor may have under applicable law.

(v)The ABL Agent, on behalf of itself and the ABL Secured Parties, and, prior to Discharge of the First-Lien Obligations, the Second-Lien Security Agent, on behalf of itself and the Second-Lien Secured Parties, agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of, any marshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Term Loan Priority Collateral, or after Discharge of ABL Obligations, the ABL Priority Collateral, or any other similar rights a junior secured creditor may have under applicable law.

(e)No Waiver of Lien Priorities — Second-Lien Obligations.

(i)No right of the Second-Lien Secured Parties, the Second-Lien Security Agent or any of them to enforce any provision of this Agreement or any Second-Lien Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any other Grantor or by any act or failure to act by any Second-Lien Secured Party or the Second-Lien Security Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the ABL Documents, any of the First-Lien Documents or any of the Second-Lien Documents, regardless of any knowledge thereof which the Second-Lien Security Agent or the Second-Lien Secured Parties, or any of them, may have or be otherwise charged with.

(ii)After the Discharge of First-Lien Obligations has occurred, without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Company and the other Grantors under the Second-Lien Documents and subject to the provisions of Sections 3.5(c), 4.5(c) and 5.1(b)), the Second-Lien Secured Parties, the Second-Lien Security Agent or any of them may, at any time and from time to time in accordance with the Second-Lien Documents and/or applicable law, without the consent of, or notice to, the ABL Agent or any ABL Secured Party, without incurring any liabilities to the ABL Agent or any ABL Secured Party and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy of the ABL Agent or any ABL Secured Party is affected, impaired or extinguished thereby) do any one or more of the following:

(1)subject to the Second-Lien Debt Cap, make loans and advances to any Grantor or issue, guaranty or obtain letters of credit for account of any Grantor or otherwise

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extend credit to any Grantor, in any amount and on any terms, whether pursuant to a commitment or as a discretionary advance and whether or not any default or event of default or failure of condition is then continuing;

(2)change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the Second-Lien Obligations or any Second-Lien on any Term Loan Priority Collateral or guaranty thereof or any liability of any of the Company or any other Grantor, or any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the Second-Lien Obligations, without any restriction as to the amount, tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Second-Lien on the Term Loan Priority Collateral held by the Second-Lien Security Agent or any of the Second-Lien Secured Parties, the Second-Lien Obligations or any of the Second-Lien Documents;

(3)sell, exchange, realize upon, enforce or otherwise deal with in any manner (subject to the terms hereof) and in any order any part of the Term Loan Priority Collateral or any liability of the Company or any other Grantor to the Second-Lien Secured Parties or the Second-Lien Security Agent, or any liability incurred directly or indirectly in respect thereof;

(4)settle or compromise any Second-Lien Obligation or any other liability of the Company or any other Grantor or any security therefor or any liability, in each case, incurred directly or indirectly in respect thereof; and

(5)exercise or delay in or refrain from exercising any right or remedy against the Company or any other Grantor or any other Person, elect any remedy and otherwise deal freely with the Company, any other Grantor or any Term Loan Priority Collateral and any security and any guarantor or any liability of the Company or any other Grantor to the Second-Lien Secured Parties or any liability incurred directly or indirectly in respect thereof.

(iii)The ABL Agent, on behalf of itself and the ABL Secured Parties, also agrees that the Second-Lien Secured Parties and the Second-Lien Security Agent shall have no liability to the ABL Agent or any ABL Secured Party, and the ABL Agent, on behalf of itself and the ABL Secured Parties, hereby waives any claim against any Second-Lien Secured Party or the Second-Lien Security Agent, arising out of any and all actions which the Second-Lien Secured Parties or the Second-Lien Security Agent may take or permit or omit to take with respect to:

(1)the Second-Lien Documents (other than this Agreement);

(2)the collection of the Second-Lien Obligations; or

(3)the foreclosure upon, or sale, liquidation or other disposition of, any Term Loan Priority Collateral.

Except as otherwise required by this Agreement, the ABL Agent, on behalf of itself and the ABL Secured Parties, agrees that the Second-Lien Secured Parties and the Second-Lien Security Agent have no duty to the ABL Agent or the ABL Secured Parties in respect of the maintenance or preservation of the Term Loan Priority Collateral, the Second-Lien Obligations or otherwise.

(iv)The ABL Agent, on behalf of itself and the ABL Secured Parties, agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request,

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plead or otherwise assert or otherwise claim the benefit of, any marshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Term Loan Priority Collateral or any other similar rights a junior secured creditor may have under applicable law.

(f)Obligations Unconditional.  All rights, interests, agreements and obligations of the ABL Agent and the ABL Secured Parties, the First-Lien Security Agent and the First-Lien Secured Parties, and the Second-Lien Security Agent and the Second-Lien Secured Parties, respectively, hereunder shall remain in full force and effect irrespective of:

(i)any lack of validity or enforceability of any ABL Document, any First-Lien Document or any Second-Lien Document;

(ii)except as otherwise set forth in this Agreement, any change permitted hereunder in the time, manner or place of payment of, or in any other terms of, all or any of the ABL Obligations, Second-Lien Obligations or First-Lien Obligations, or any amendment or waiver or other modification permitted hereunder, whether by course of conduct or otherwise, of the terms of any ABL Document, any First-Lien Document or any Second-Lien Document;

(iii)except as otherwise set forth in this Agreement, any exchange of any security interest in any ABL Priority Collateral or any Term Loan Priority Collateral or any amendment, waiver or other modification permitted hereunder, whether in writing or by course of conduct or otherwise, of all or any of the ABL Obligations, First-Lien Obligations or Second-Lien Obligations;

(iv)the commencement of any Insolvency or Liquidation Proceeding in respect of the Company or any other Grantor; or

(v)any other circumstances which otherwise might constitute a defense available to, or a discharge of, the Company or any other Grantor in respect of the ABL Obligations, or of the First-Lien Security Agent, any First-Lien Secured Party, the Second-Lien Security Agent or any Second-Lien Secured Party in respect of this Agreement.

Section 6.  Cooperation with Respect to ABL Priority Collateral.

6.1Consent to License to Use Intellectual Property.  Each of the First-Lien Security Agent and the Second-Lien Security Agent (and any purchaser, assignee or transferee of assets as provided in Section 6.3) (a) consents (without any representation, warranty or obligation whatsoever) to the grant by any Grantor to the ABL Agent of a non-exclusive royalty-free license to use for a period not to exceed 120 days (commencing with the initiation of any enforcement of Liens by either the First-Lien Security Agent or the Second-Lien Security Agent (provided, in each case, that the ABL Agent has received notice thereof) or by the ABL Agent) any Patent, Trademark or proprietary information of such Grantor that is subject to a Lien held by either the First-Lien Security Agent or the Second-Lien Security Agent, respectively, (or any Patent, Trademark or proprietary information acquired by such purchaser, assignee or transferee from any Grantor, as the case may be) and (b) grants, in its capacity as a secured party (or as a purchaser, assignee or transferee, as the case may be), to the ABL Agent a non-exclusive royalty-free license to use for a period not to exceed 120 days (commencing with (x) the initiation of any enforcement of Liens by either the First-Lien Security Agent or the Second-Lien Security Agent (provided that the ABL Agent has received notice thereof) or by the ABL Agent or (y) the purchase, assignment or transfer, as the case may be) any Patent, Trademark or proprietary information that is subject to a Lien held by the First-Lien Security Agent or the Second-Lien Security Agent, respectively,

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(or subject to such purchase, assignment or transfer, as the case may be), in each case in connection with the enforcement of any Lien held by the ABL Agent upon any Inventory or other ABL Priority Collateral of any Grantor and to the extent the use of such Patent, Trademark or proprietary information is necessary or appropriate, in the good faith opinion of the ABL Agent, to process, ship, produce, store, complete, supply, lease, sell or otherwise dispose of any such inventory in any lawful manner.  The 120 day license periods shall be tolled during the pendency of any Insolvency or Liquidation Proceeding of any Grantor pursuant to which the ABL Agent is effectively stayed from enforcing its rights and remedies with respect to the ABL Priority Collateral.

6.2Access to Information.  If either the First-Lien Security Agent or the Second-Lien Security Agent takes actual possession of any documentation of a Grantor (whether such documentation is in the form of a writing or is stored in any data equipment or data record in the physical possession of the First-Lien Security Agent or the Second-Lien Security Agent), then upon the reasonable request of the ABL Agent and reasonable advance notice, the First-Lien Security Agent or Second-Lien Security Agent, as the case may be, will permit the ABL Agent or its representative to inspect and copy such documentation.

6.3Access to Property to Process and Sell Inventory.  (a)  (i)  If the ABL Agent commences any action or proceeding with respect to any of its rights or remedies (including, but not limited to, any action of foreclosure), enforcement, collection or execution with respect to the ABL Priority Collateral (“ABL Priority Collateral Enforcement Actions”) or if either of the First-Lien Security Agent or the Second-Lien Security Agent commences any action or proceeding with respect to any of its rights or remedies (including any action of foreclosure), enforcement, collection or execution with respect to the Term Loan Priority Collateral and the First-Lien Security Agent or the Second-Lien Term Security Agent, as the case may be (or a purchaser at a foreclosure sale conducted in foreclosure of any First-Lien Security Agent’s Liens or the Second-Lien Security Agent’s Liens) takes actual or constructive possession of Term Loan Priority Collateral of any Grantor (“Term Loan Priority Collateral Enforcement Actions”), then the First-Lien Secured Parties and the First-Lien Security Agent, or the Second-Lien Secured Parties and the Second-Lien Security Agent, as the case may be, shall (subject to, in the case of any Term Loan Priority Collateral Enforcement Action, a prior written request by the ABL Agent to the First-Lien Security Agent or the Second-Lien Security Agent, as the case may be, (the “Term Loan Priority Collateral Enforcement Action Notice”)) (x) cooperate with the ABL Agent (and with its officers, employees, representatives and agents) in its efforts to conduct ABL Priority Collateral Enforcement Actions in the ABL Priority Collateral and to finish any work-in-process and process, ship, produce, store, complete, supply, lease, sell or otherwise handle, deal with, assemble or dispose of, in any lawful manner, the ABL Priority Collateral, (y) not hinder or restrict in any respect the ABL Agent from conducting ABL Priority Collateral Enforcement Actions in the ABL Priority Collateral or from finishing any work-in-process or processing, shipping, producing, storing, completing, supplying, leasing, selling or otherwise handling, dealing with, assembling or disposing of, in any lawful manner, the ABL Priority Collateral, and (z) permit the ABL Agent, its employees, agents, advisers and representatives, at the cost and expense of the ABL Secured Parties (but with the Grantors’ reimbursement and indemnity obligation with respect thereto), to enter upon and use the Term Loan Priority Collateral (including, without limitation, equipment, processors, computers and other machinery related to the storage or processing of records, documents or files and intellectual property), for a period commencing on (I) the date of the initial ABL Priority Collateral Enforcement Action or the date of delivery of the Term Loan Priority Collateral Enforcement Action Notice, as the case may be, and (II) ending on the earlier of the date occurring 120 days thereafter and the date on which all ABL Priority Collateral (other than ABL Priority Collateral abandoned by the ABL Agent in writing) has been removed from the Term Loan Priority Collateral (such period, the “ABL Priority Collateral Processing and Sale Period”), for purposes of:

(A)assembling and storing the ABL Priority Collateral and completing the

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processing of and turning into finished goods any ABL Priority Collateral consisting of work-in-process;

(B)selling any or all of the ABL Priority Collateral located in or on such Term Loan Priority Collateral, whether in bulk, in lots or to customers in the ordinary course of business or otherwise;

(C)removing and transporting any or all of the ABL Priority Collateral located in or on such Term Loan Priority Collateral;

(D)otherwise processing, shipping, producing, storing, completing, supplying, leasing, selling or otherwise handling, dealing with, assembling or disposing of, in any lawful manner, the ABL Priority Collateral; and/or

(E)taking reasonable actions to protect, secure, and otherwise enforce the rights or remedies of the ABL Secured Parties and/or the ABL Agent (including with respect to any ABL Priority Collateral Enforcement Actions) in and to the ABL Priority Collateral;

provided, however, that nothing contained in this Agreement shall restrict the rights of the First-Lien Security Agent or the Second-Lien Security Agent from selling, assigning or otherwise transferring any Term Loan Priority Collateral prior to the expiration of such ABL Priority Collateral Processing and Sale Period if the purchaser, assignee or transferee thereof agrees in writing (for the benefit of the ABL Agent and the ABL Secured Parties) to be bound by the provisions of this Section 6.  If any stay or other order prohibiting the exercise of remedies with respect to the ABL Priority Collateral has been entered by a court of competent jurisdiction, such ABL Priority Collateral Processing and Sale Period shall be tolled during the pendency of any such stay or other order.

(ii)During the period of actual occupation, use and/or control by the ABL Secured Parties and/or the ABL Agent (or their respective employees, agents, advisers and representatives) of any Term Loan Priority Collateral, the ABL Secured Parties and the ABL Agent shall be obligated to repair at their expense any physical damage to such Term Loan Priority Collateral resulting from such occupancy, use or control, and to leave such Term Loan Priority Collateral in substantially the same condition as it was at the commencement of such occupancy, use or control, ordinary wear and tear excepted.  Notwithstanding the foregoing, in no event shall the ABL Secured Parties or the ABL Agent have any liability to the First-Lien Secured Parties, the First-Lien Security Agent, the Second-Lien Secured Parties and/or to the Second-Lien Security Agent pursuant to this Section 6.3(a) as a result of any condition (including any environmental condition, claim or liability) on or with respect to the Term Loan Priority Collateral existing prior to the date of the exercise by the ABL Secured Parties (or the ABL Agent, as the case may be) of their rights under this Section 6.3(a) and the ABL Secured Parties shall have no duty or liability to maintain the Term Loan Priority Collateral in a condition or manner better than that in which it was maintained prior to the use thereof by the ABL Secured Parties, or for any diminution in the value of the Term Loan Priority Collateral that results from ordinary wear and tear resulting from the use of the Term Loan Priority Collateral by the ABL Secured Parties in the manner and for the time periods specified under this Section 6.3(a).  Without limiting the rights granted in this Section 6.3(a), the ABL Secured Parties and the ABL Agent shall cooperate with the First-Lien Secured Parties, the First-Lien Security Agent, the Second-Lien Secured Parties and/or the Second-Lien Security Agent in connection with any efforts made by the First-Lien Secured Parties, the First-Lien Security Agent, the Second-Lien Secured Parties and/or the Second-Lien Security Agent, as the case may be, to sell the Term Loan Priority Collateral.

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(b)The ABL Secured Parties shall (i) use the Term Loan Priority Collateral in accordance with applicable law; (ii) obtain insurance for damage to property and liability to persons, including property and liability insurance, substantially similar to the insurance maintained by Grantors, naming each of the First-Lien Security Agent and the Second-Lien Security Agent as mortgagee, loss payee and additional insured, at no cost to the First-Lien Secured Parties, but only to the extent such insurance is not otherwise in effect; and (iii) indemnify each of the First-Lien Secured Parties and the Second-Lien Secured Parties from any claim, loss, damage, cost or liability arising out of any claim asserted by any third party as a result of any acts or omissions by the ABL Agent, or any of its agents or representatives, in connection with the exercise by the ABL Secured Parties of their rights of access set forth in this Section 6.3.  In no event shall any ABL Secured Party have any liability to the First-Lien Secured Parties or the Second-Lien Secured Parties pursuant to this Section 6.3(b) or otherwise as a result of any condition on or with respect to the Term Loan Priority Collateral existing prior to the date of the exercise by the ABL Secured Parties of their access rights under this Section 6.3(b), and the ABL Secured Parties shall have no duty or liability to maintain the Term Loan Priority Collateral in a condition or manner better than that in which it was maintained prior to the access and/or use thereof by the ABL Secured Parties.

(c)Each of the First-Lien Security Agent and the Second-Lien Security Agent (x) shall, at the request of the ABL Agent, provide reasonable cooperation to the ABL Agent in connection with the manufacture, production, completion, handling, removal and sale of any ABL Priority Collateral by the ABL Agent as provided above and (y) shall be entitled to receive, from the ABL Agent, fair compensation and reimbursement for their reasonable costs and expenses incurred in connection with such cooperation, support and assistance to the ABL Agent.  Each of the First-Lien Security Agent and the Second-Lien Security Agent and/or any such purchaser (or its transferee or successor) shall not otherwise be required to manufacture, produce, complete, remove, insure, protect, store, safeguard, sell or deliver any inventory subject to any First Priority Lien held by the ABL Agent or to provide any support, assistance or cooperation to the ABL Agent in respect thereof.

Section 7.  Application of Proceeds.

7.1Application of Proceeds in Distributions by the First-Lien Security Agent.

(a)The First-Lien Security Agent will apply the proceeds of any collection, sale, foreclosure or other realization upon any Term Loan Priority Collateral, and, after the Discharge of ABL Obligations, the proceeds of any collection, sale, foreclosure or other realization of any ABL Priority Collateral by First-Lien Security Agent, and, in each case the proceeds of any title insurance policy covering any Term Loan Priority Collateral (or, after the Discharge of ABL Obligations, any ABL Priority Collateral) required and actually obtained under any First-Lien Document, in the following order of application:

First, to the payment of all amounts payable under the First-Lien Documents on account of the First-Lien Security Agent’s fees and any reasonable legal fees, costs and expenses or other liabilities of any kind incurred by the First-Lien Security Agent or any co-trustee or agent of the First-Lien Security Agent in connection with any First-Lien Document;

Second, to the First-Lien Administrative Agent for application to the payment of all outstanding First-Lien Priority Obligations that are then due and payable in such order as may be provided in the First-Lien Documents in an amount sufficient to pay in full in cash all outstanding First-Lien Priority Obligations that are then due and payable (including all interest accrued thereon after the commencement of any Insolvency or Liquidation Proceeding at the rate, and including any applicable post-default rate, specified in the First-

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Lien Documents, even if such interest is not enforceable, allowable or allowed as a claim in such proceeding);

Third, to the payment of all amounts payable under the Second-Lien Documents on account of the Second-Lien Security Agent’s fees and any reasonable legal fees, costs and expenses or other liabilities of any kind incurred by the Second-Lien Security Agent or any co-trustee or agent of the Second-Lien Security Agent in connection with any Second-Lien Document;

Fourth, to the Second-Lien Administrative Agent for application to the payment of all outstanding Second-Lien Priority Obligations that are then due and payable in such order as may be provided in the Second-Lien Documents in an amount sufficient to pay in full in cash all outstanding Second-Lien Priority Obligations that are then due and payable (including all interest accrued thereon after the commencement of any Insolvency or Liquidation Proceeding at the rate, and including any applicable post-default rate, specified in the Second-Lien Documents, even if such interest is not enforceable, allowable or allowed as a claim in such proceeding);

Fifth, to the payment of all amounts payable under the ABL Documents on account of the ABL Agent’s fees and any reasonable legal fees, costs and expenses or other liabilities of any kind incurred by the ABL Agent or any co-trustee or agent of the ABL Agent in connection with any ABL Document;

Sixth, to the ABL Agent for application to the payment of all outstanding ABL Priority Obligations that are then due and payable in such order as may be provided in the ABL Documents in an amount sufficient to pay in full in cash all outstanding ABL Priority Obligations that are then due and payable (including all interest accrued thereon after the commencement of any Insolvency or Liquidation Proceeding at the rate, including any applicable post-default rate, specified in the ABL Documents, even if such interest is not enforceable, allowable or allowed as a claim in such proceeding, and including the discharge or cash collateralization (at 105% of the aggregate undrawn amount) of all outstanding letters of credit and ABL Bank Product Obligations, if any, constituting ABL Priority Obligations);

Seventh, to the First-Lien Administrative Agent for application to the payment of all outstanding Excess First-Lien Obligations that are then due and payable in such order as may be provided in the First-Lien Documents in an amount sufficient to pay in full in cash all outstanding Excess First-Lien Obligations that are then due and payable;

Eighth, to the Second-Lien Administrative Agent for application to the payment of all outstanding Excess Second-Lien Obligations that are then due and payable in such order as may be provided in the First-Lien Documents in an amount sufficient to pay in full in cash all outstanding Excess Second-Lien Obligations that are then due and payable;

Ninth, to the ABL Agent for application to the payment of all outstanding Excess ABL Obligations that are then due and payable in such order as may be provided in the First-Lien Documents in an amount sufficient to pay in full in cash all outstanding Excess ABL Obligations that are then due and payable; and

Tenth, any surplus remaining after the payment in full in cash of the amounts described in the preceding clauses will be paid to the Company or the applicable Grantor, as the case may be, its successors or assigns, or as a court of competent jurisdiction may direct.

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(b)In connection with the application of proceeds pursuant to Section 7.1(a), except as otherwise directed by the “Required Lenders” under, and as defined in, the First-Lien Documents, the First-Lien Security Agent may sell any non-Cash Proceeds for cash prior to the application of the proceeds thereof.

(c)If the First-Lien Security Agent or any First-Lien Secured Party collects or receives any proceeds of such foreclosure, collection or other enforcement that should have been applied to the payment of the ABL Obligations in accordance with Section 7.2(a) below, whether after the commencement of an Insolvency or Liquidation Proceeding or otherwise, such First-Lien Secured Party will forthwith deliver the same to the ABL Agent, for the account of the holders of the ABL Obligations, to be applied in accordance with Section 7.2(a).  Until so delivered, such proceeds will be held by that First-Lien Secured Party for the benefit of the holders of the ABL Obligations.

7.2Application of Proceeds in Distributions by the ABL Agent.

(a)The ABL Agent will apply the proceeds of any collection, sale, foreclosure or other realization upon any ABL Priority Collateral and, after the Discharge of First-Lien Obligations and the Discharge of Second-Lien Obligations, the proceeds of any collection, sale, foreclosure or other realization of any Term Loan Priority Collateral by the ABL Agent, and the proceeds of any title insurance policy covering any ABL Priority Collateral (and, after the Discharge of First-Lien Obligations and the Discharge of Second-Lien Obligations, any title insurance policy covering any Term Loan Priority Collateral) required and actually obtained under any ABL Document permitted to be received by it, in the following order of application:

First, to the payment of all amounts payable under the ABL Documents on account of the ABL Agent’s fees and any reasonable legal fees, costs and expenses or other liabilities of any kind incurred by the ABL Agent or any co-trustee or agent of the ABL Agent in connection with any ABL Document;

Second, to the ABL Agent for application to the payment of all outstanding ABL Priority Obligations that are then due and payable in such order as may be provided in the ABL Documents in an amount sufficient to pay in full in cash all outstanding ABL Priority Obligations that are then due and payable (including all interest accrued thereon after the commencement of any Insolvency or Liquidation Proceeding at the rate, and including any applicable post-default rate, specified in the ABL Documents, even if such interest is not enforceable, allowable or allowed as a claim in such proceeding and including the discharge or cash collateralization of all outstanding letters of credit (at 105% of the aggregate undrawn amount) and ABL Bank Product Obligations (in such amount as the ABL Agent reasonably determines is necessary to secure the ABL Bank Product Obligations), if any, constituting ABL Priority Obligations);

Third, to the payment of all amounts payable under the First-Lien Documents on account of the First-Lien Security Agent’s fees and any reasonable legal fees, costs and expenses or other liabilities of any kind incurred by the First-Lien Security Agent or any co-trustee or agent of the First-Lien Security Agent in connection with any First-Lien Document;

Fourth, to the First-Lien Administrative Agent for application to the payment of all outstanding First-Lien Priority Obligations that are then due and payable in such order as may be provided in the First-Lien Documents in an amount sufficient to pay in full in cash all outstanding First-Lien Priority Obligations that are then due and payable (including all interest accrued thereon after the commencement of any Insolvency or Liquidation

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Proceeding at the rate, and including any applicable post-default rate, specified in the First-Lien Documents, even if such interest is not enforceable, allowable or allowed as a claim in such proceeding and including the discharge or cash collateralization);

Fifth, to the payment of all amounts payable under the Second-Lien Documents on account of the Second-Lien Security Agent’s fees and any reasonable legal fees, costs and expenses or other liabilities of any kind incurred by the Second-Lien Security Agent or any co-trustee or agent of the Second-Lien Security Agent in connection with any Second-Lien Document;

Sixth, to the Second-Lien Administrative Agent for application to the payment of all outstanding Second-Lien Priority Obligations that are then due and payable in such order as may be provided in the Second-Lien Documents in an amount sufficient to pay in full in cash all outstanding Second-Lien Priority Obligations that are then due and payable (including all interest accrued thereon after the commencement of any Insolvency or Liquidation Proceeding at the rate, and including any applicable post-default rate, specified in the Second-Lien Documents, even if such interest is not enforceable, allowable or allowed as a claim in such proceeding);

Seventh, to the ABL Agent for application to the payment of all outstanding Excess ABL Obligations that are then due and payable in such order as may be provided in the ABL Documents in an amount sufficient to pay in full in cash all outstanding Excess ABL Obligations that are then due and payable; and

Eighth, to the First-Lien Administrative Agent for application to the payment of all outstanding Excess First-Lien Obligations that are then due and payable in such order as may be provided in the First-Lien Documents in an amount sufficient to pay in full in cash all outstanding Excess First-Lien Obligations that are then due and payable;

Ninth, to the Second-Lien Administrative Agent for application to the payment of all outstanding Excess Second-Lien Obligations that are then due and payable in such order as may be provided in the Second-Lien Documents in an amount sufficient to pay in full in cash all outstanding Excess Second-Lien Obligations that are then due and payable;

Tenth, any surplus remaining after the payment in full in cash of the amounts described in the preceding clauses will be paid to the Company or the other applicable Grantor, as the case may be, its successors or assigns, or as a court of competent jurisdiction may direct.

(b)In connection with the application of proceeds pursuant to Section 7.2(a), except as otherwise directed by the “Required Lenders” under, and as defined in, the ABL Documents, the ABL Agent may sell any non-Cash Proceeds for cash prior to the application of the proceeds thereof.

(c)If the ABL Agent or any ABL Secured Party collects or receives any proceeds of such foreclosure, collection or other enforcement that should have been applied to the payment of the First-Lien Obligations in accordance with Section 7.1(a) above, or the Second-Lien Obligations in accordance with Section 7.3(a) below, whether after the commencement of an Insolvency or Liquidation Proceeding or otherwise, such ABL Secured Party will forthwith deliver the same to the First-Lien Security Agent or the Second-Lien Security Agent, as the case may be, for the account of the holders of the First-Lien Obligations or the Second-Lien Obligations, as the case may be, to be applied in accordance with Section 7.1(a) or Section 7.3(a), as the case may be.  Until so delivered, such proceeds will be held by that ABL Secured Party for the benefit of the holders of the First-Lien Obligations or the Second-Lien Obligations, as the case may be.

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7.3Application of Proceeds in Distributions by the Second-Lien Security Agent.

(a)The Second-Lien Security Agent will, after the Discharge of First-Lien Obligations, apply the proceeds of any collection, sale, foreclosure or other realization upon any Term Loan Priority Collateral and, after the Discharge of ABL Obligations and the Discharge of First-Lien Obligations, the proceeds of any collection, sale, foreclosure or other realization of any ABL Priority Collateral by Second-Lien Security Agent, and, in each case the proceeds of any title insurance policy required and actually obtained under any Second-Lien Document, in the following order of application:

First, to the payment of all amounts payable under the Second-Lien Documents on account of the Second-Lien Security Agent’s fees and any reasonable legal fees, costs and expenses or other liabilities of any kind incurred by the Second-Lien Security Agent or any co-trustee or agent of the Second-Lien Security Agent in connection with any Second-Lien Document;

Second, to the Second-Lien Administrative Agent for application to the payment of all outstanding Second-Lien Priority Obligations that are then due and payable in such order as may be provided in the Second-Lien Documents in an amount sufficient to pay in full in cash all outstanding Second-Lien Priority Obligations that are then due and payable (including all interest accrued thereon after the commencement of any Insolvency or Liquidation Proceeding at the rate, and including any applicable post-default rate, specified in the Second-Lien Documents, even if such interest is not enforceable, allowable or allowed as a claim in such proceeding);

Third, to the payment of all amounts payable under the ABL Documents on account of the ABL Agent’s fees and any reasonable legal fees, costs and expenses or other liabilities of any kind incurred by the ABL Agent or any co-trustee or agent of the ABL Agent in connection with any ABL Document;

Fourth, to the ABL Agent for application to the payment of all outstanding ABL Priority Obligations that are then due and payable in such order as may be provided in the ABL Documents in an amount sufficient to pay in full in cash all outstanding ABL Priority Obligations that are then due and payable (including all interest accrued thereon after the commencement of any Insolvency or Liquidation Proceeding at the rate, including any applicable post-default rate, specified in the ABL Documents, even if such interest is not enforceable, allowable or allowed as a claim in such proceeding, and including the discharge or cash collateralization (at 105% of the aggregate undrawn amount) of all outstanding letters of credit and ABL Bank Product Obligations, if any, constituting ABL Priority Obligations);

Fifth, to the Second-Lien Administrative Agent for application to the payment of all outstanding Excess Second-Lien Obligations that are then due and payable in such order as may be provided in the Second-Lien Documents in an amount sufficient to pay in full in cash all outstanding Excess Second-Lien Obligations that are then due and payable;

Sixth, to the ABL Agent for application to the payment of all outstanding Excess ABL Obligations that are then due and payable in such order as may be provided in the Second-Lien Documents in an amount sufficient to pay in full in cash all outstanding Excess ABL Obligations that are then due and payable; and

Seventh, any surplus remaining after the payment in full in cash of the amounts described in the preceding clauses will be paid to the Company or the applicable Grantor, as the case may be, its successors or assigns, or as a court of competent jurisdiction may direct.

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(b)In connection with the application of proceeds pursuant to Section 7.3(a), except as otherwise directed by the “Required Lenders” under, and as defined in, the Second-Lien Documents, the Second-Lien Security Agent may sell any non-Cash Proceeds for cash prior to the application of the proceeds thereof.

(c)If the Second-Lien Security Agent or any Second-Lien Secured Party collects or receives any proceeds of such foreclosure, collection or other enforcement that should have been applied to the payment of the First-Lien Obligations in accordance with Section 7.1(a) or ABL Obligations in accordance with Section 7.2(a) above, whether after the commencement of an Insolvency or Liquidation Proceeding or otherwise, such Second-Lien Secured Party will forthwith deliver the same to the First-Lien Security Agent, for the account of the holders of the First-Lien Obligations, or the ABL Agent, for the account of the holders of the ABL Obligations, to be applied in accordance with Section 7.1(a) or Section 7.2(a), as the case may be.  Until so delivered, such proceeds will be held by that Second-Lien Secured Party for the benefit of the holders of the First-Lien Obligations or the ABL Obligations, as the case may be.

7.4Mixed Collateral Proceeds.  Notwithstanding anything to the contrary contained above or in the definition of the ABL Priority Collateral or Term Loan Priority Collateral, in the event that proceeds of Collateral are received from (or are otherwise attributable to the value of) a sale or other disposition of Collateral that involves a combination of ABL Priority Collateral and Term Loan Priority Collateral, the portion of such proceeds that shall be allocated as proceeds of ABL Priority Collateral for purposes of this Agreement shall be an amount equal to the net book value of such ABL Priority Collateral (except in the case of Accounts which amount shall be equal to the face amount of such Accounts).  In addition, notwithstanding anything to the contrary contained above or in the definition of the ABL Priority Collateral or Term Loan Priority Collateral, to the extent proceeds of Collateral are proceeds received from (or are otherwise attributable to the value of) the sale or disposition of all or substantially all of the Capital Stock of any of the Subsidiaries of Parent which is a Grantor or all or substantially all of the assets of any such Subsidiary, such proceeds shall constitute (1) first, in an amount equal to the face amount of the Accounts (as described in clause (i) of the definition of ABL Priority Collateral, and excluding any Accounts to the extent excluded pursuant to said clause (i)) and the net book value of the Inventory owned by such Subsidiary at the time of such sale, ABL Priority Collateral and (2) second, to the extent in excess of the amounts described in the preceding clause (1), Term Loan Priority Collateral.

7.5Tracing of Proceeds in Deposit Accounts.  The First-Lien Security Agent, for itself and/or on behalf of the First-Lien Secured Parties and the Second-Lien Security Agent, for itself and/or on behalf of the Second-Lien Secured Parties, hereby agree that all funds deposited under a Deposit Account (other than an Asset Sale Proceeds Account) and then applied to the ABL Obligations will be treated as ABL Priority Collateral, unless prior to the application of such funds, the ABL Agent has actual knowledge, or any First-Lien Agent, Second-Lien Agent or any Grantor has delivered written notice to the ABL Agent indicating, that any such funds are the identifiable Proceeds of Term Priority Collateral that have been deposited under such Deposit Agreements.

Section 8.  Miscellaneous.

8.1Conflicts.  In the event of any conflict between the provisions of this Agreement and the provisions of the First-Lien Documents, the Second-Lien Documents or the ABL Documents, the provisions of this Agreement shall govern and control, except with respect to the scope of the assets included in the respective “granting clauses” in the various First-Lien Security Documents, Second-Lien Security Documents and ABL Security Documents.  Each Secured Party acknowledges and agrees that the terms and provisions of this Agreement do not violate any term or provision of its respective First-

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Lien Document, or Second-Lien Document or ABL Document.

8.2Effectiveness; Continuing Nature of this Agreement; Amendment and Restatement; Severability.  (a) This Agreement shall become effective when executed and delivered by the parties hereto.  Each Security Agent, on behalf of itself and the applicable Secured Parties, hereby waives any right it may have under applicable law to revoke this Agreement or any of the provisions of this Agreement.  The terms of this Agreement shall survive, and shall continue in full force and effect, in any Insolvency or Liquidation Proceeding.  Without limiting the generality of the foregoing, this Agreement is intended to constitute and shall be deemed to constitute a “subordination agreement” within the meaning of Section 510(a) of the Bankruptcy Code and is intended to be and shall be interpreted to be enforceable to the maximum extent permitted pursuant to applicable non-bankruptcy law.  Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall not invalidate the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.  All references to the Company or any other Grantor shall include the Company or such Grantor as debtor and debtor in possession and any receiver or trustee for the Company or any other Grantor (as the case may be) in any Insolvency or Liquidation Proceeding.

(b)This Agreement amends and restates, replaces and supersedes the Prior Intercreditor Agreement in its entirety.  This Agreement is the “Intercreditor Agreement”, as such term is used in the ABL Documents, in the First-Lien Documents and in the Second-Lien Documents.

(c)This Agreement shall terminate and be of no further force and effect:

(i)with respect to the ABL Agent, the ABL Secured Parties and the ABL Obligations, upon the Discharge of ABL Obligations, subject to the rights of the ABL Secured Parties under Section 8.17;

(ii)with respect to the First-Lien Security Agent, the First-Lien Secured Parties and the First-Lien Obligations, upon the Discharge of First-Lien Obligations, subject to the rights of the First-Lien Secured Parties under Section 8.17; and

(iii)with respect to the Second-Lien Security Agent, the Second-Lien Secured Parties and the Second-Lien Obligations, upon the Discharge of Second-Lien Obligations, subject to the rights of the Second-Lien Secured Parties under Section 8.17.

8.3Amendments; Waivers.  (a)  No amendment, modification or waiver of any of the provisions of this Agreement by any Security Agent shall be deemed to be made unless the same shall be in writing signed on behalf of each party hereto or its authorized agent; provided that additional Grantors may acknowledge this Agreement in accordance with the provisions of Section 8.16; provided, further that each of the ABL Agent, the First-Lien Agent and the Second-Lien Agent and the Security Agents shall be obligated to enter into amendments and modifications to this Agreement on their own behalf and on behalf of their respective Secured Parties to the extent requested by the Company in accordance with Section 8.3(b) below.  Each waiver of the terms of this Agreement, if any, shall be a waiver only with respect to the specific instance involved and shall in no way impair the rights of the parties making such waiver or the obligations of the other parties to such party in any other respect or at any other time.  Notwithstanding the foregoing, the Company or any other Grantor shall not have any right to consent to or approve any amendment, modification or waiver of any provision of this Agreement except to the extent its rights are directly affected (which includes any amendment to the Grantors’ ability to cause additional obligations to constitute First-Lien Obligations, Second-Lien Obligations or ABL Obligations as the Company and/or any other Grantor may designate).

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(b)It is understood and agreed that the ABL Agent, the First-Lien Security Agent, the Second-Lien Security Agent, the First-Lien Agent and the Second-Lien Agent, without the consent of any other ABL Secured Party, First-Lien Secured Party or Second-Lien Secured Party, shall, upon request of the Company, enter into a supplemental agreement (which may take the form of an amendment or amendment and restatement of this Agreement) within 10 business days of such request (or such shorter or longer period as reasonably agreed to by the Security Agents and the Company) (i) to have additional indebtedness or other obligations of any of the Grantors incorporated herein as ABL Obligations, First-Lien Obligations or Second-Lien Obligations, as the case may be, under this Agreement, (ii) to give effect to any amendments contemplated by Sections 3.4(h)(i), 3.4(i)(i) or 4.4(h)(i) in connection with a Permitted Refinancing of First-Lien Obligations, Second-Lien Obligations and ABL Obligations, respectively or (iii) to effectuate the priority of the Liens permitted pursuant to clauses (a), (q) and (r) of the definition of “Permitted Liens” in the ABL Credit Agreement (or any Permitted Refinancing thereof), Sections 9.01(d), (t), (u) or (v) of the First-Lien Credit Agreement (or any Permitted Refinancing thereof) or Sections 9.01(d), (t), (u) or (v) of the Second-Lien Credit Agreement (or any Permitted Refinancing thereof) (including allowing the Additional Debt secured by such Liens to share in the benefits of this Agreement on a basis consistent with the existing First-Lien Obligations (to the extent such Additional Debt is intended to consist of First-Lien Obligations), the existing Second-Lien Obligations (to the extent such Additional Debt is intended to consist of Second-Lien Obligations), or the existing ABL Obligations (to the extent such Additional Debt is intended to consist of ABL Obligations), in relation to (x) the Liens on the Term Loan Priority Collateral securing the ABL Obligations,  the First-Lien Obligations and Second-Lien Obligations and (y) the Liens on the ABL Priority Collateral securing ABL Obligations, the First-Lien Obligations and Second-Lien Obligations (the indebtedness or other obligations described in clauses (i) and (iii), “Additional Debt”), which supplemental agreement shall specify whether such Additional Debt constitutes ABL Obligations, First-Lien Obligations or Second-Lien Obligations; provided that such Additional Debt is permitted to be incurred under the each of the ABL Credit Agreement, the First-Lien Credit Agreement and the Second-Lien Credit Agreement then extant in accordance with the terms thereof, and each of the ABL Agent, the First-Lien Security Agent and the Second-Lien Security Agent (and the First-Lien Agent and the Second-Lien Agent)  shall execute and deliver such supplemental agreement at the other’s request (or upon the request of the Company) and such supplemental agreement may contain additional intercreditor terms applicable solely to the holders of such Additional Debt and the holders of the relevant obligations hereunder, which are intended to share priority in the Collateral on a pari passu basis with such Additional Debt.

8.4Information Concerning Financial Condition of the Company and its Subsidiaries.  The First-Lien Security Agent and the First-Lien Secured Parties, the Second-Lien Security Agent and the Second-Lien Secured Parties, and the ABL Agent and the ABL Secured Parties, shall each separately be responsible for keeping themselves informed of (a) the financial condition of the Company and its Subsidiaries and all endorsers and/or guarantors of the First-Lien Obligations, the Second-Lien Obligations or the ABL Obligations and (b) all other circumstances bearing upon the risk of nonpayment of the ABL Obligations, the First-Lien Obligations or the Second-Lien Obligations.  No Security Agent or its respective Secured Parties shall have any duty to advise any other Security Agent or that other Security Agent’s respective Secured Parties of information known to it or them regarding such condition or any such circumstances or otherwise.  In the event that any of the First-Lien Security Agent or any of the First-Lien Secured Parties, the Second-Lien Security Agent or any of the Second-Lien Secured Parties, or the ABL Agent or any of the ABL Secured Parties, respectively, in its or their sole discretion, undertakes at any time or from time to time to provide any such information to any other party hereto, it or they shall be under no obligation (w) to make, and such informing party shall not make, any express or implied representation or warranty, including with respect to the accuracy, completeness, truthfulness or validity of any such information so provided, (x) to provide any additional information or to provide any such information on any subsequent occasion, (y) to undertake any investigation or (z) to disclose any information which, pursuant to accepted or reasonable commercial finance practices, such party wishes to

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maintain confidential or is otherwise required to maintain confidential.

8.5Submission to Jurisdiction; Waivers.  (a)  ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY PARTY HERETO ARISING OUT OF OR RELATING HERETO SHALL BE BROUGHT EXCLUSIVELY IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE, COUNTY AND CITY OF NEW YORK, BOROUGH OF MANHATTAN.  BY EXECUTING AND DELIVERING THIS AGREEMENT, EACH PARTY HERETO, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (i) ACCEPTS GENERALLY AND UNCONDITIONALLY THE EXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS; (ii) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; (iii) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE APPLICABLE PARTY AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 8.6; AND (iv) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (iii) ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE APPLICABLE PARTY IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT.

(b)EACH OF THE PARTIES HERETO HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER.  THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER HEREOF, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.  EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS.  EACH PARTY HERETO FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.  THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 8.5(b) AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO.  IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.

8.6Notices.  All notices to the ABL Secured Parties, the First-Lien Secured Parties and the Second-Lien Secured Parties permitted or required under this Agreement shall also be sent to the ABL Agent, the First-Lien Security Agent and the Second-Lien Security Agent, respectively.  Unless otherwise specifically provided herein, any notice hereunder shall be in writing and may be personally served, telexed or sent by telefacsimile or United States mail or courier service and shall be deemed to have been given when delivered in person or by courier service and signed for against receipt thereof, upon receipt of telefacsimile, or three Business Days after depositing it in the United States mail with postage prepaid and properly addressed.  For the purposes hereof, the addresses of the parties hereto shall be as set forth below each party’s name on the signature pages hereto, or, as to each party, at such other address as may be designated by such party in a written notice to all of the other parties.

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8.7Further Assurances.  The First-Lien Security Agent, on behalf of itself and the First-Lien Secured Parties, the Second-Lien Security Agent, on behalf of itself and the Second-Lien Secured Parties, and the ABL Agent, on behalf of itself and the ABL Secured Parties, and each Grantor, agrees that each of them shall take such further action and shall execute (without recourse or warranty) and deliver such additional documents and instruments (in recordable form, if requested) as the First-Lien Security Agent, the Second-Lien Security Agent or the ABL Agent (or in the circumstances set forth in Section 8.3, the Company) may reasonably request to effectuate the terms of and the lien priorities contemplated by this Agreement (including with respect to Additional Debt).

8.8APPLICABLE LAW.  THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

8.9Binding on Successors and Assigns.  This Agreement shall be binding upon the parties hereto, the First-Lien Secured Parties, the Second-Lien Secured Parties, the ABL Secured Parties and their respective successors and assigns.

8.10Specific Performance.  Each of the First-Lien Security Agent, the Second-Lien Security Agent and the ABL Agent may demand specific performance of this Agreement.  The First-Lien Security Agent, on behalf of itself and the First-Lien Secured Parties, the Second-Lien Security Agent, on behalf of itself and the Second-Lien Secured Parties, and the ABL Agent, on behalf of itself and the ABL Secured Parties, hereby irrevocably waives any defense based on the adequacy of a remedy at law and any other defense which might be asserted to bar the remedy of specific performance in any action which may be brought by the First-Lien Security Agent, the Second-Lien Security Agent or the ABL Agent, as the case may be.

8.11Headings.  Section headings in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose or be given any substantive effect.

8.12Counterparts.  This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall be deemed an original, but all of which when taken together shall constitute a single contract.  Delivery of an executed counterpart of a signature page of this Agreement or any document or instrument delivered in connection herewith by telecopy or other electronic transmission shall be effective as delivery of a manually executed counterpart of this Agreement or such other document or instrument, as the case may be.

8.13Authorization; No Conflict.  Each of the parties hereto represents and warrants to all other parties hereto that the execution, delivery and performance by or on behalf of such party to this Agreement has been duly authorized by all necessary action, corporate or otherwise, does not violate any provision of law, governmental regulation, or any agreement or instrument by which such party is bound, and requires no governmental or other consent that has not been obtained and is not in full force and effect.

8.14No Third Party Beneficiaries.  This Agreement and the rights and benefits hereof shall inure to the benefit of the First-Lien Secured Parties, the Second-Lien Secured Parties, the ABL Secured Parties and each of their respective successors and assigns.  No other Person shall have or be entitled to assert rights or benefits hereunder other than the specific rights of the Grantors under Section 8.3.

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8.15Provisions Solely to Define Relative Rights.  (a)  The provisions of this Agreement are and are intended solely for the purpose of defining the relative rights and remedies of the First-Lien Secured Parties, the Second-Lien Secured Parties and the ABL Secured Parties, respectively.  None of the Company, any other Grantor or any other creditor thereof shall have any rights hereunder (except as provided in Section 8.3).  Nothing in this Agreement is intended to or shall impair the obligations of the Company or any other Grantor, which are absolute and unconditional, to pay the First-Lien Obligations, the Second-Lien Obligations and the ABL Obligations as and when the same shall become due and payable in accordance with their terms.

(b)Nothing in this Agreement shall relieve the Company or any other Grantor from the performance of any term, covenant, condition or agreement on the Company’s or such Grantor’s part to be performed or observed under or in respect of any of the Collateral pledged by it or from any liability to any Person under or in respect of any of such Collateral or impose any obligation on any Security Agent to perform or observe any such term, covenant, condition or agreement on the Company’s or such other Grantor’s part to be so performed or observed or impose any liability on any Security Agent for any act or omission on the part of the Company or such other Grantor relative thereto or for any breach of any representation or warranty on the part of the Company or such other Grantor contained in this Agreement or any ABL Document, any First-Lien Document or any Second-Lien Document, or in respect of the Collateral pledged by it.  The obligations of the Company and each other Grantor contained in this paragraph shall survive the termination of this Agreement and the discharge of the Company’s or such other Grantor’s other obligations hereunder.

(c)Each of the Security Agents acknowledges and agrees that it has not made any representation or warranty with respect to the execution, validity, legality, completeness, collectability or enforceability of any other ABL Document, any First-Lien Document or any Second-Lien Document.  Except as otherwise provided in this Agreement, each of the Security Agents and the Administrative Agents will be entitled to manage and supervise their respective extensions of credit to the Company or any of its Subsidiaries in accordance with law and their usual practices, modified from time to time as they deem appropriate.

8.16Additional Grantors.  The Company will cause each Person that becomes a Grantor or is a Wholly-Owned Subsidiary which is a Domestic Subsidiary (other than an Excluded Subsidiary) required by any First-Lien Document, any Second-Lien Document or any ABL Document to acknowledge this Agreement by causing such Person to execute and deliver to the parties hereto an Intercreditor Agreement Acknowledgement in substantially the form attached hereto as Exhibit B, whereupon such Person will be deemed to have acknowledged and consented to the terms hereof to the same extent as if it had executed and delivered an Intercreditor Agreement Acknowledgement as of the date hereof.  The Company shall promptly provide each Security Agent with a copy of an Intercreditor Agreement Acknowledgement executed and delivered pursuant to this Section 8.16.

8.17Avoidance Issues.  If any ABL Secured Party, First-Lien Secured Party or Second-Lien Secured Party is required in any Insolvency or Liquidation Proceeding or otherwise to turn over or otherwise pay to the estate of the Company or any other Grantor any amount (a “Recovery”), then such ABL Secured Party, First-Lien Secured Party or Second-Lien Secured Party, as the case may be, shall be entitled to a reinstatement of ABL Obligations, First-Lien Obligations or Second-Lien Obligations, as the case may be, with respect to all such recovered amounts.  If this Agreement shall have been terminated prior to such Recovery, this Agreement shall be reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise affect the obligations of the parties hereto from such date of reinstatement. To the extent the ABL Debt Cap was decreased in connection with such payment of the ABL Obligations, the ABL Debt Cap shall be increased to such extent; to the extent the First-Lien Debt Cap was decreased in connection with such payment of the First-

96

Lien Obligations, the First-Lien Debt Cap shall be increased to such extent; and to the extent the Second-Lien Debt Cap was decreased in connection with such payment of the Second-Lien Obligations, the Second-Lien Debt Cap shall be increased to such extent.

8.18Subrogation.  (a)  Subject to the Discharge of First-Lien Obligations, with respect to the value of any payments or distributions in cash, property or other assets that (i) the ABL Secured Parties or ABL Agent pay over to the First-Lien Security Agent or any of the other First-Lien Secured Parties under the terms of this Agreement with respect to any Term Loan Priority Collateral, the ABL Secured Parties and the ABL Agent shall be subrogated to the rights of the First-Lien Security Agent and such other First-Lien Secured Parties following the Discharge of Second-Lien Obligations, (ii) the Second-Lien Secured Parties or Second-Lien Security Agent pay over to the First-Lien Security Agent or any of the other First-Lien Secured Parties under the terms of this Agreement with respect to any Term Loan Priority Collateral, the Second-Lien Secured Parties and the Second-Lien Security Agent shall be subrogated to the rights of the First-Lien Security Agent and such other First-Lien Secured Parties and (iii) the Second-Lien Secured Parties or Second-Lien Security Agent pay over to the First-Lien Security Agent or any of the other First-Lien Secured Parties under the terms of this Agreement with respect to the ABL Priority Collateral, the Second-Lien Secured Parties and the Second-Lien Security Agent shall be subrogated to the rights of the First-Lien Security Agent and the other First-Lien Secured Parties; provided that, each of the ABL Agent, on behalf of itself and the ABL Secured Parties, and the Second-Lien Security Agent, on behalf of itself and the Second-Lien Secured Parties, hereby agrees not to assert or enforce all such rights of subrogation it may acquire as a result of any payment hereunder until the Discharge of First-Lien Obligations has occurred.  Each of the Company and each other Grantor acknowledges and agrees that, the value of any payments or distributions in cash, property or other assets received by the ABL Agent, any other ABL Secured Parties, the Second-Lien Security Agent or any other Second-Lien Secured Parties and paid over to the First-Lien Security Agent or the other First-Lien Secured Parties pursuant to, and applied in accordance with, this Agreement, shall not relieve or reduce any of the First-Lien Obligations owed by the Company or any other Grantor under the First-Lien Documents.

(b)Subject to the Discharge of Second-Lien Obligations, with respect to the value of any payments or distributions in cash, property or other assets that the ABL Secured Parties or ABL Agent pay over to the Second-Lien Security Agent or any of the other Second-Lien Secured Parties under the terms of this Agreement with respect to any Term Loan Priority Collateral, the ABL Secured Parties and the ABL Agent shall be subrogated to the rights of the Second-Lien Security Agent and such other Second-Lien Secured Parties; provided that, the ABL Agent, on behalf of itself and the ABL Secured Parties, hereby agrees not to assert or enforce all such rights of subrogation it may acquire as a result of any payment hereunder until the Discharge of Second-Lien Obligations has occurred.  Each of the Company and each other Grantor acknowledges and agrees that, the value of any payments or distributions in cash, property or other assets received by the ABL Agent or the other ABL Secured Parties and paid over to the Second-Lien Security Agent or the other Second-Lien Secured Parties pursuant to, and applied in accordance with, this Agreement, shall not relieve or reduce any of the Second-Lien Obligations owed by the Company or any other Grantor under the Second-Lien Documents (but rather shall reduce the ABL Obligations).

(c)Subject to the Discharge of ABL Obligations, with respect to the value of any payments or distributions in cash, property or other assets that (i) the First-Lien Secured Parties or First-Lien Security Agent pay over to the ABL Agent or any of the other ABL Secured Parties under the terms of this Agreement with respect to the ABL Priority Collateral, the First-Lien Secured Parties and the First-Lien Security Agent shall be subrogated to the rights of the ABL Agent and the other ABL Secured Parties and (ii) the Second-Lien Secured Parties or Second-Lien Security Agent pay over to the ABL Agent or any of the other ABL Secured Parties under the terms of this Agreement with respect to the

97

ABL Priority Collateral, the Second-Lien Secured Parties and the Second-Lien Security Agent shall be subrogated to the rights of the ABL Agent and the other ABL Secured Parties following the Discharge of First-Lien Obligations; provided that each of the First-Lien Security Agent, on behalf of itself and the First-Lien Secured Parties, and the Second-Lien Security Agent, on behalf of itself and the Second-Lien Secured Parties, hereby agrees not to assert or enforce all such rights of subrogation it may acquire as a result of any payment hereunder until the Discharge of ABL Obligations has occurred.  Each of the Company and each other Grantor acknowledges and agrees that, the value of any payments or distributions in cash, property or other assets received by the First-Lien Security Agent, any other First-Lien Secured Parties, the Second-Lien Security Agent or any other Second-Lien Secured Parties and paid over to the ABL Agent or the other ABL Secured Parties pursuant to, and applied in accordance with, this Agreement, shall not relieve or reduce any of the ABL Obligations owed by the Company or any other Grantor under the ABL Documents, as the case may be (but rather shall relieve or reduce the First-Lien Obligations or Second-Lien Obligations, as applicable).

8.19Effectiveness in Insolvency or Liquidation Proceedings.  This Agreement shall be applicable both before and after the commencement of any Insolvency or Liquidation Proceeding and all converted or succeeding cases in respect thereof.  The relative rights of the Secured Parties in or to any distributions from or in respect of any Collateral or proceeds of any Collateral, shall continue after the commencement of any Insolvency or Liquidation Proceeding.  Accordingly, the provisions of this Agreement are intended to be and shall be enforceable as a subordination agreement within the meaning of Section 510 of the Bankruptcy Code.

[SIGNATURE PAGES FOLLOW]

98

IN WITNESS WHEREOF, the parties hereto have caused this [Second] Amended and Restated Intercreditor Agreement to be executed by their respective officers or representatives as of the day and year first above written.

Address:	WELLS FARGO CAPITAL FINANCE, LLC,
	as ABL Agent
Wells Fargo Capital Finance, LLC
2450 Colorado Avenue
Suite 3000 West
Santa Monica, CA 90404	By:
Attn: Loan Portfolio Manager		Name:
Fax No.: (866) 350-1924		Title:

Address:	MORGAN STANLEY SENIOR FUNDING, INC.,
	as First-Lien Administrative Agent and as First-Lien Security Agent
Morgan Stanley Senior Funding, Inc.
1585 Broadway
New York, New York 10036
Attention: Agency Team	By:
Telecopier No.: (212) 507-6680		Name:
Telephone: (917) 260-0588		Title:

Address:	[                           ],
	as Second-Lien Administrative Agent and as Second-Lien Security Agent
[           ]
[           ]
[           ]	By:
[           ]		Name:
[           ]		Title:
	By:
		Name:
		Title:

ACKNOWLEDGMENT OF
[SECOND] AMENDED AND RESTATED INTERCREDITOR AGREEMENT

Each Grantor hereby acknowledges that it has received a copy of this Agreement, as in effect on the date first written above, and each such Grantor hereby (i) consents thereto, (ii) agrees to recognize all rights granted thereby to the ABL Agent, the ABL Secured Parties, the First-Lien Agents, the Second-Lien Agents, the First-Lien Secured Parties and the Second-Lien Secured Parties, (iii) waives the provisions of Section 9-615(a) of the UCC in connection with the application of proceeds of Collateral in accordance with the provisions of this Agreement, (iv) acknowledges and agrees that no First-Lien Agent, Second-Lien Agent, holder of First-Lien Obligations or holder of Second-Lien Obligations shall ever be accountable or liable for any actions taken or omitted by the ABL Agent or any ABL Secured Party or its or any of their officers, employees, agents, successors or assigns in connection therewith or incidental thereto or in consequence thereof, including any improper use or disclosure of any proprietary information or other intellectual property by the ABL Agent or any ABL Secured Party or its or any of their officers, employees, agents, successors or assigns or any other damage to or misuse or loss of any property of the Grantors as a result of any action taken or omitted by the ABL Agent or its officers, employees, agents, successors or assigns, (v) acknowledges and agrees that no First-Lien Agent, ABL Agent, holder of First-Lien Obligations or holder of ABL Obligations shall ever be accountable or liable for any actions taken or omitted by any Second-Lien Agent or any Second-Lien Secured Party or its or any of their officers, employees, agents, successors or assigns in connection therewith or incidental thereto or in consequence thereof, including any improper use or disclosure of any proprietary information or other intellectual property by any Second-Lien Agent or any Second-Lien Secured Party or its or any of their officers, employees, agents, successors or assigns or any other damage to or misuse or loss of any property of the Grantors as a result of any action taken or omitted by any Second-Lien Agent or its officers, employees, agents, successors or assigns, (vi) acknowledges and agrees that no Second-Lien Agent, ABL Agent, holder of Second-Lien Obligations or holder of ABL Obligations shall ever be accountable or liable for any actions taken or omitted by any First-Lien Agent or any First-Lien Secured Party or its or any of their officers, employees, agents, successors or assigns in connection therewith or incidental thereto or in consequence thereof, including any improper use or disclosure of any proprietary information or other intellectual property by any First-Lien Agent or any First-Lien Secured Party or its or any of their officers, employees, agents, successors or assigns or any other damage to or misuse or loss of any property of the Grantors as a result of any action taken or omitted by any First-Lien Agent or its officers, employees, agents, successors or assigns, and (vii) agrees that it will not do any act or perform any obligation which is not in accordance with the agreements set forth in this Agreement as in effect on the date hereof.  Each Grantor further acknowledges and agrees that, other than as provided in Section 8.3 of this Agreement (pursuant to Section 8.15(a) of this Agreement), it is not an intended beneficiary or third party beneficiary under this Agreement, as amended, restated, supplemented, or otherwise modified hereafter.

[SIGNATURE PAGES FOLLOW]

IN WITNESS WHEREOF, the parties hereto have caused this Intercreditor Agreement Acknowledgement to be executed by their respective officers or representatives as of [                  ].

ADVANCEPIERRE FOODS, INC.,
as a Grantor
By:
	Name:
	Title:
ADVANCEPIERRE FOODS HOLDINGS, INC.,
as a Grantor
By:
	Name:
	Title:
PIERRE HOLDCO, INC.,
as Grantor
By:
	Name:
	Title:
[OTHER GRANTORS],
as a Grantor
By:
	Name:
	Title:

EXHIBIT A
to Intercreditor Agreement

FORM OF
INTERCREDITOR AGREEMENT JOINDER

The undersigned,                      , a                , hereby agrees to become party as [an ABL Agent][a First-Lien Security Agent][a Second-Lien Security Agent] under the [Second] Amended and Restated Intercreditor Agreement, dated as of [           ] (as amended, restated, amended and restated, supplemented, joined or otherwise modified from time to time, the “Intercreditor Agreement”), made by and among Wells Fargo Capital Finance, LLC (in its individual capacity, and any successor thereto by merger, consolidation or otherwise, “WFCF”), as ABL Agent, Morgan Stanley Senior Funding, Inc., as First-Lien Administrative Agent and as First-Lien Security Agent, and [             ], as Second-Lien Administrative Agent and as Second-Lien Security Agent, and acknowledged by AdvancePierre Foods Holdings, Inc., a Delaware corporation (“Parent”), Pierre Holdco, Inc. a Delaware corporation (“Holdings”), AdvancePierre Foods, Inc., a Delaware corporation (the “Company”), and certain other Grantors (as defined therein), as such Intercreditor Agreement may be in effect from time to time for all purposes thereof on the terms set forth therein, and to be bound by the terms of the Intercreditor Agreement as fully as if the undersigned had executed and delivered the Intercreditor Agreement as of the date thereof.

The provisions of Section 6 of the Intercreditor Agreement will apply with like effect to this Intercreditor Agreement Joinder.

IN WITNESS WHEREOF, the parties hereto have caused this Intercreditor Agreement Joinder to be executed by their respective officers or representatives as of                    , 20    .

[                                    ]
By:
	Name:
	Title:

EXHIBIT B
to Intercreditor Agreement

FORM OF ACKNOWLEDGMENT OF
[SECOND] AMENDED AND RESTATED INTERCREDITOR AGREEMENT

The undersigned,                      , a                 (“Grantor”), hereby acknowledges that it has received a copy of the [Second] Amended and Restated Intercreditor Agreement, dated as of [      ] (as amended, restated, amended and restated, supplemented, joined or otherwise modified from time to time, the “Intercreditor Agreement”; capitalized terms used herein but not otherwise defined herein shall have the meanings set forth in the Intercreditor Agreement), made by and among Wells Fargo Capital Finance, LLC (in its individual capacity, and any successor thereto by merger, consolidation or otherwise, “WFCF”), as ABL Agent, Morgan Stanley Senior Funding, Inc., as First-Lien Administrative Agent and as First-Lien Security Agent, and [           ], as Second-Lien Administrative Agent and as Second-Lien Security Agent, and acknowledged by AdvancePierre Foods Holdings, Inc., a Delaware corporation (“Parent”), Pierre Holdco, Inc. a Delaware corporation (“Holdings”), AdvancePierre Foods, Inc., a Delaware corporation (the “Company”), and certain other Grantors.  Grantor hereby (i) consents to the Intercreditor Agreement, (ii) agrees to recognize all rights granted thereby to the ABL Agent, the ABL Secured Parties, the First-Lien Agents, the First-Lien Secured Parties, the Second-Lien Agents, and the Second-Lien Secured Parties, (iii) waives the provisions of Section 9-615(a) of the UCC in connection with the application of proceeds of Collateral in accordance with the provisions of the Intercreditor Agreement, (iv) acknowledges and agrees that no First-Lien Agent, Second-Lien Agent, holder of First-Lien Obligations or holder of Second-Lien Obligations shall ever be accountable or liable for any actions taken or omitted by the ABL Agent or any ABL Secured Party or its or any of their officers, employees, agents, successors or assigns in connection therewith or incidental thereto or in consequence thereof, including any improper use or disclosure of any proprietary information or other intellectual property by the ABL Agent or any ABL Secured Party or its or any of their officers, employees, agents, successors or assigns or any other damage to or misuse or loss of any property of the Grantors as a result of any action taken or omitted by the ABL Agent or its officers, employees, agents, successors or assigns, (v) acknowledges and agrees that no First-Lien Agent, ABL Agent, holder of First-Lien Obligations or holder of ABL Obligations shall ever be accountable or liable for any actions taken or omitted by any Second-Lien Agent or any Second-Lien Secured Party or its or any of their officers, employees, agents, successors or assigns in connection therewith or incidental thereto or in consequence thereof, including any improper use or disclosure of any proprietary information or other intellectual property by any Second-Lien Agent or any Second-Lien Secured Party or its or any of their officers, employees, agents, successors or assigns or any other damage to or misuse or loss of any property of the Grantors as a result of any action taken or omitted by any Second-Lien Agent or its officers, employees, agents, successors or assigns, (vi) acknowledges and agrees that no Second-Lien Agent, ABL Agent, holder of Second-Lien Obligations or holder of ABL Obligations shall ever be accountable or liable for any actions taken or omitted by any First-Lien Agent or any First-Lien Secured Party or its or any of their officers, employees, agents, successors or assigns in connection therewith or incidental thereto or in consequence thereof, including any improper use or disclosure of any proprietary information or other intellectual property by any First-Lien Agent or any First-Lien Secured Party or its or any of their officers, employees, agents, successors or assigns or any other damage to or misuse or loss of any property of the Grantors as a result of any action taken or omitted by any First-Lien Agent or its officers, employees, agents, successors or assigns, and (vii) agrees that it will not do any act or perform any obligation which is not in accordance with the agreements set forth in the Intercreditor Agreement as in effect on the date hereof.  Grantor further acknowledges and agrees that, other than as provided in Section 8.3 of the Intercreditor Agreement (pursuant to Section 8.15(a) of the Intercreditor Agreement), it is not an intended beneficiary or third party beneficiary under the Intercreditor Agreement, as amended, restated, supplemented, or otherwise modified hereafter.

IN WITNESS WHEREOF, the parties hereto have caused this Intercreditor Agreement Acknowledgement to be executed by their respective officers or representatives as of                    , 20    .

[                                    ]
By:
	Name:
	Title:

EXHIBIT L

AUCTION PROCEDURES

This Exhibit L is intended to summarize certain basic terms of the modified Dutch auction procedures to be utilized in connection with Section 2.15 of the Term Loan Credit Agreement dated as of June 2, 2016, among AdvancePierre Foods Holdings, Inc., Pierre Holdco, Inc., AdvancePierre Foods, Inc., the Lenders party thereto from time to time and Morgan Stanley Senior Funding, Inc., as Administrative Agent (as amended, restated amended and restated, amended and extended, supplemented, modified, restructured, replaced or refinanced from time to time, the “First-Lien Credit Agreement”), of which this Exhibit L is a part. It is not intended to be a definitive list of all of the terms and conditions of a modified Dutch auction and all such terms and conditions shall be set forth in the applicable offering document (the “Offer Document”). None of the Administrative Agent, the Auction Manager or any of their respective Affiliates, or any officers, directors, employees, agents or attorneys-in-fact of such Persons (together with the Administrative Agent and its Affiliates, the “Agent-Related Person”) makes any recommendation pursuant to any Offer Document as to whether or not any Lender should sell Loans and/or Incremental Loans, as the case may be, to each of Parent, Holdings, the Borrower, the Restricted Subsidiaries of the Borrower, the Sponsor, any Sponsor Debt Fund, the Advance Shareholders, the other holders of Equity Interests of Holdings as at the Effective Date or any of their respective Affiliates (collectively, the “Affiliated Persons” and each an “Affiliated Person”) pursuant to any Offer Documents, nor shall the decision by the Administrative Agent in its respective capacity as a Lender to sell any of its Loans and/or Incremental Loans to any of the respective Affiliated Persons be deemed to constitute such a recommendation. Each Lender should make its own decision on whether to sell any of its Loans and/or Incremental Loans, as the case may be, and, if it decides to do so, the principal amount of and price to be sought for such Loans and/or Incremental Loans. In addition, each Lender should consult its own attorney, business advisor or tax advisor as to legal, business, tax and related matters concerning each Auction and the relevant Offer documents. The Affiliated Persons and any Sponsor Debt Fund may tender Return Bids (as defined below) and participate in Auctions on the same terms and conditions set forth in this Exhibit N and the applicable Offer documents, and such participation may not be deemed a recommendation to any Lender to submit a Return Bid or to take part in this or any other Auction. Capitalized terms not otherwise defined in this Exhibit L have the meanings assigned to them in the Term Loan Credit Agreement.

Summary. The Affiliated Persons may conduct modified Dutch auctions in order to purchase Loans and/or Incremental Loans (each, an “Auction”). The aggregate principal amount (calculated on the face amount thereof) of all Loans or Incremental Loans so purchased by Parent, Holdings, the Borrower or its Restricted Subsidiaries (collectively, the “Affiliated Borrower Lenders” and each an “Affiliated Borrower Lender”) shall automatically be cancelled and retired by such Affiliated Borrower Lender, on the settlement date of the relevant purchase (and may not be resold). No Affiliated Person other than a Sponsor Debt Fund shall be permitted to hold an aggregate principal amount of outstanding Loans and Incremental Loans that represents more than 25% of the aggregate principal amount of all outstanding Loans and Incremental Loans, calculated as of the date of such purchase (excluding any amounts subject to cancellation pursuant to the first sentence of this paragraph) (the “Maximum Permitted Affiliated Holding”).

Notice Procedures. In connection with each Auction, the applicable Affiliated Persons will provide notification to the Auction Manager for distribution to the Lenders of the Loans and/or Incremental Loans that will be the subject of such Auction (an “Auction Notice”). Each Auction Notice shall contain (i) the maximum principal amount of Loans and/or Incremental Loans that the Affiliated Person is willing to purchase in such Auction (the “Auction Amount”), which shall be no less than $10,000,000 or an integral multiple of $1,000,000 in excess of thereof; (ii) the range of discounts to par

1

(the “Discount Range”), at which the Affiliated Person would be willing to purchase Loans and/or Incremental Loans in such Auction; and (iii) the date on which such Auction will conclude, on which date Return Bids (as defined below) will be due by 1:00 p.m. New York time (the “Expiration Time”). Such Expiration Time may be extended for a period not exceeding three (3) Business Days upon notice by the Affiliated Persons to the Auction Manager not less than 24 hours before the Expiration Time; provided, however, that only one extension per Return Bid shall be permitted (unless otherwise agreed by the Auction Manager). An Auction shall be regarded as a “failed auction” in the event that either (x) the Affiliated Persons withdraw such Auction in accordance with the terms hereof or (y) the Expiration Time occurs with no Qualifying Bids (as defined below) having been received. Notwithstanding anything to the contrary contained herein, the Affiliated Persons shall not initiate any Auction by delivering an Auction Notice to the Auction Manager until after the conclusion (whether successful or failed) of the previous Auction (if any), whether such conclusion occurs by withdrawal of such previous Auction or the occurrence of the Expiration Time of such previous Auction.

Reply Procedures. In connection with any Auction, each Lender wishing to participate in such Auction shall, prior to the Expiration Time, provide the Auction Manager with a notice of participation, in the form included in the respective Offer Documents (each, a “Return Bid”) which shall specify (i) a discount to par that must be expressed as a price per $1,000 (in increments of $5) of Loans and/or Incremental Loans (the “Reply Price”) within the Discount Range and (ii) the principal amount of Loans and/or Incremental Loans, in an amount not less than US$1,000,000 or an integral multiple in excess thereof, that such Lender is willing to offer for sale at its Reply Price (the “Reply Amount”). A Lender may submit a Reply Amount that is less than the minimum amount and incremental amount requirements described above only if the Reply Amount comprises the entire amount of the Loans and/or Incremental Loans held by such Lender. The Lenders may only submit one Return Bid per Auction but each Return Bid may contain up to three (3) component bids, each of which may result in a separate Qualifying Bid (as defined below) and each of which will not be contingent on any other component bid by such Lender resulting in a Qualifying Bid. In addition to the Return Bid, the participating Lender must execute and deliver, to be held by the Auction Manager, an assignment and acceptance agreement in the form included in the Offer Documents (each, an “Auction Assignment and Acceptance”). The Affiliated Persons will not have any obligation to purchase any Loans or Affiliated Loans at a price outside of the applicable Discount Range, nor will any Return Bids tendered outside such applicable Discount Range be considered in any calculation of the Applicable Threshold Price or satisfaction of the Maximum Permitted Auction Amount.

Acceptance Procedures. Based on the Reply Discounts and Reply Amounts received by the Auction Manager, the Auction Manager, in consultation with the Affiliated Persons, will calculate the lowest purchase price (the “Applicable Threshold Price”) for such Auction within the Discount Range for such Auction that will allow the Affiliated Persons to complete the Auction by purchasing the full Auction Amount (or such lesser amount of Loans and/or Incremental Loans for which the Affiliated Persons has received Return Bids within the Discount Range); provided that the aggregate principal amount of Loans and/or Incremental Loans purchased by the Affiliated Persons shall not exceed the Maximum Permitted Affiliated Holding. The Affiliated Persons shall purchase Loans and/or Incremental Loans from each Lender whose Return Bid contains a Reply Price that is equal to or less than the Applicable Threshold Price (each, a “Qualifying Bid”). All principal amount of Loans and/or Incremental Loans included in Return Bids received at a Reply Price lower than the Applicable Threshold Price will be purchased at the applicable Reply Price and shall not be subject to proration. If a Lender has submitted a Return Bid containing multiple component bids at different Reply Prices, then all Loans and/or Incremental Loans of such Lender offered in Qualifying Bids with Reply Prices lower than the Applicable Threshold Price shall also be purchased at the applicable Reply Price and shall not be subject to proration. All Loans and/or Incremental Loans offered in Return Bids at the Applicable Threshold Price will be purchased at the Applicable Threshold Price; provided that if (a) the aggregate principal amount of all

2

Loans and/or Incremental Loans for which Qualifying Bids have been submitted in any given Auction at the Applicable Threshold Price would exceed the remaining portion of the Auction Amount (after deducting all Loans and/or Incremental Loans purchased below the Applicable Threshold Price), or (b) the aggregate principal amount of Loans and/or Incremental Loans purchased pursuant to such Auction, together with all previous Auctions, would exceed the Maximum Permitted Affiliated Holding, the Affiliated Persons shall purchase the Loans and/or Incremental Loans for which the Qualifying Bids submitted were at the Applicable Threshold Price ratably based on the respective principal amounts offered and in an aggregate amount up to the lower of (x) the amount necessary to complete the purchase of the Auction Amount and (y) the highest amount that would not cause the Affiliated Persons to exceed the Maximum Permitted Affiliated Holding. No Return Bids will be accepted above the Applicable Threshold Price. The Auction Manager will calculate the Applicable Threshold Price and post the Applicable Threshold Price and proration factor onto the Platform by 4:00 p.m. New York time on the same business day as the date the Return Bids were due. The Auction Manager will insert the amount of Loans and/or Incremental Loans to be assigned and the applicable settlement date onto each applicable Auction Assignment and Acceptance received in connection with a Qualifying Bid. The Auction Manager will promptly destroy any Auction Assignment and Acceptance received in connection with a Return Bid that is not a Qualifying Bid.

Additional Procedures. Once initiated by an Auction Notice, the Affiliated Persons may not withdraw an Auction. Furthermore, in connection with any Auction, upon submission by a Lender of a Return Bid, such Lender will not have any withdrawal rights. Any Return Bid delivered to the Auction Manager may not be modified, revoked, terminated or cancelled by a Lender. However, an Auction may be terminated by the applicable Affiliated Persons if the conditions to the purchase of Loans and/or Incremental Loans by the Affiliated Persons required by the terms and conditions of Section 2.15 of the Term Loan Credit Agreement are not met. The purchase price in respect of each Qualifying Bid shall be paid directly to the respective assigning Lender on a settlement date as determined by the Auction Manager in consultation with the Affiliated Persons (which shall be no later than thirty (30) days after the date Return Bids are due).

All questions as to the form of documents and validity and eligibility of Loans and/or Incremental Loans that are the subject of an Auction will be determined by the Auction Manager, in consultation with the Affiliated Persons, and its determination will be final and binding. The Auction Manager’s interpretation of the terms and conditions of the Offer Documents, in consultation with the Affiliated Persons, will be final and binding.

This Exhibit L shall not require the Affiliated Persons to undertake any Auction.

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EX-10.6

Exhibit 10.6

AMENDMENT NUMBER THREE TO SECOND AMENDED
AND RESTATED CREDIT AGREEMENT

THIS AMENDMENT NUMBER THREE TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”), dated as of June 2, 2016, is entered into by and among ADVANCEPIERRE FOODS, INC., a Delaware corporation (“Borrower”), the lenders identified on the signature pages hereof (such lenders, together with their respective successors and permitted assigns, are referred to hereinafter each individually as a “Lender” and collectively as the “Lenders”), and WELLS FARGO CAPITAL FINANCE, LLC, a Delaware limited liability company as administrative agent for each member of the Lender Group and the Bank Product Providers (in such capacity, together with any successor administrative agent, “Agent”).

W I T N E S S E T H

WHEREAS, Borrower, Lenders, and Agent are parties to that certain Second Amended and Restated Credit Agreement, dated as of October 10, 2012 (as amended, restated, amended and restated, supplemented, or otherwise modified from time to time prior to the date hereof, the “Existing Credit Agreement”);

WHEREAS, Borrower has requested that Agent and Lenders agree to amend the Existing Credit Agreement on and subject to the terms and conditions set forth herein; and

WHEREAS, subject to the satisfaction of the conditions set forth in this Amendment, Agent and the Lenders are willing to so amend the Existing Credit Agreement, in each case, on the terms and conditions set forth herein.

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:

1.Defined Terms.  All initially capitalized terms used herein (including the preamble and recitals hereof) without definition shall have the meanings ascribed thereto in the Existing Credit Agreement (including Schedule 1.1 thereto), as amended hereby (as so amended, the “Credit Agreement”).

2.Amendments to Credit Agreement.  Each of the parties hereto agrees that, effective as of the Amendment Effective Date, the Credit Agreement, including certain schedules and exhibits attached thereto, shall be amended as follows:

(a)The Credit Agreement and Schedule 1.1 thereto are each hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in the pages of the Credit Agreement and Schedule 1.1 thereto attached as Exhibit A hereto.

(b)Each of the schedules to the Credit Agreement (other than Schedule 3.1 and Schedule 3.6) are hereby amended and modified by replacing such schedules in their entirety with the schedules attached as Exhibit B hereto.

(c)Each of the following exhibits to the Credit Agreement are hereby amended and modified by replacing such exhibits in their entirety with the corresponding exhibits attached as Exhibit C

hereto: Exhibit B-1 (Form of Borrowing Base Certificate) and Exhibit C-1 (Form of Compliance Certificate).

3.Conditions Precedent to Amendment. The satisfaction (or waiver in writing by Agent) of each of the conditions precedent set forth on Exhibit D attached hereto (the execution and delivery of this Amendment by a Lender being conclusively deemed to be its satisfaction or waiver of such conditions precedent) shall constitute conditions precedent to the effectiveness of this Amendment (such date being the “Amendment Effective Date”).

4.Representations and Warranties. Borrower hereby represents and warrants to Agent and each other member of the Lender Group as follows:

(a)The execution, delivery, and performance by each Loan Party of each Loan Document to which it is a party (as amended on the Amendment Effective date, as applicable) (i) have been duly authorized by all necessary corporate or other organizational action of such Loan Party and (ii) do not and will not (A) contravene the terms of such Loan Party’s Governing Documents or (B) conflict with, result in a breach of, or constitute (with due notice of lapse of time or both), after giving effect to the Transactions, a default under the Intercreditor Agreement or the Term Loan Documents.

(b)This Amendment is, and each other Loan Document to which Borrower is a party, when executed and delivered by Borrower, will be the legally valid and binding obligation of Borrower, enforceable against Borrower in accordance with its respective terms, except as enforcement may be limited by equitable principles or by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally.

(c)No Default or Event of Default has occurred and is continuing as of the Amendment Effective Date, and no condition exists, as of the Amendment Effective Date, which constitutes a Default or an Event of Default.

(d)The representations and warranties of each of the Loan Parties set forth in this Amendment, the Credit Agreement (after giving effect to this Amendment), and the other Loan Documents (as amended on the Amendment Effective Date, if and to the extent applicable) to which it is a party are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) on and as of the date hereof, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date, in which case such representations and warranties were true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) as of such earlier date).

5.CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER; JUDICIAL REFERENCE PROVISION.  THIS AMENDMENT SHALL BE SUBJECT TO THE PROVISIONS REGARDING CHOICE OF LAW AND VENUE, JURY TRIAL WAIVER AND JUDICIAL REFERENCE PROVISION SET FORTH IN SECTION 12 OF THE CREDIT AGREEMENT, AND SUCH PROVISIONS ARE INCORPORATED HEREIN BY THIS REFERENCE, MUTATIS MUTANDIS.

6.Amendments.  This Amendment cannot be altered, amended, changed or modified in any respect except in accordance with Section 14.1 of the Credit Agreement.

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7.Counterpart Execution.  This Amendment may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, when taken together, shall constitute but one and the same Amendment.  Delivery of an executed counterpart of this Amendment by telefacsimile or other electronic method of transmission shall be equally as effective as delivery of an original executed counterpart of this Amendment.  Any party delivering an executed counterpart of this Amendment by telefacsimile or other electronic method of transmission also shall deliver an original executed counterpart of this Amendment, but the failure to deliver an original executed counterpart shall not affect the validity, enforceability, and binding effect of this Amendment.

8.Effect on Loan Documents.

(a)The Credit Agreement and each of the other Loan Documents (as amended, to the extent applicable) shall be and remain in full force and effect in accordance with their respective terms and hereby are ratified and confirmed in all respects.  The execution, delivery, and performance of this Amendment shall not operate, except as expressly set forth herein or in any other amendment to any other Loan Document as of the Amendment Effective Date, as a modification or waiver of any right, power, or remedy of Agent or any Lender under the Credit Agreement or any other Loan Document.  Except for the amendments to the Credit Agreement expressly set forth herein, the Credit Agreement shall remain unchanged and in full force and effect.  The waivers, consents and modifications set forth herein are limited to the specifics hereof (including facts or occurrences on which the same are based), shall not apply with respect to any facts or occurrences other than those on which the same are based, shall neither excuse any future non-compliance with the Loan Documents nor operate as a waiver of any Default or Event of Default, shall not operate as a consent to any further waiver, consent or amendment or other matter under the Loan Documents, and shall not be construed as an indication that any future waiver or amendment of covenants or any other provision of the Credit Agreement will be agreed to, it being understood that the granting or denying of any waiver or amendment which may hereafter be requested by Borrower remains in the sole and absolute discretion of Agent and Lenders.

(b)Upon and after the Amendment Effective Date, each reference in the Credit Agreement to “this Agreement”, “hereunder”, “herein”, “hereof” or words of like import referring to the Credit Agreement, and each reference in the other Loan Documents to “the Credit Agreement”, “thereunder”, “therein”, “thereof” or words of like import referring to the Credit Agreement, shall mean and be a reference to the Credit Agreement as modified and amended hereby.

(c)This Amendment shall constitute a “Loan Document” for all purposes.

(d)Unless the context of this Amendment clearly requires otherwise, references to the plural include the singular, references to the singular include the plural, the terms “includes” and “including” are not limiting, and the term “or” has, except where otherwise indicated, the inclusive meaning represented by the phrase “and/or”.  The words “hereof,” “herein,” “hereby,” “hereunder,” and similar terms in this Amendment refer to this Amendment as a whole and not to any particular provision of this Amendment.  Section, subsection, clause, schedule, and exhibit references herein are to this Amendment unless otherwise specified.  Any reference in this Amendment to any agreement, instrument, or document shall include all alterations, amendments, changes, extensions, modifications, renewals, replacements, substitutions, joinders, and supplements, thereto and thereof, as applicable (subject to any restrictions on such alterations, amendments, changes, extensions, modifications, renewals, replacements, substitutions, joinders, and supplements set forth herein).

9.Entire Agreement.  This Amendment, and the terms and provisions hereof, the Credit Agreement and the other Loan Documents constitute the entire understanding and agreement between the

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parties hereto with respect to the subject matter hereof and supersede any and all prior or contemporaneous amendments or understandings with respect to the subject matter hereof, whether express or implied, oral or written.

10.Integration.  This Amendment, together with the other Loan Documents, incorporates all negotiations of the parties hereto with respect to the subject matter hereof and is the final expression and agreement of the parties hereto with respect to the subject matter hereof.

11.Reaffirmation of Obligations.  Borrower hereby (a) acknowledges and reaffirms its obligations owing to Agent, each member of the Lender Group, and the Bank Product Providers under each Loan Document (as amended hereby or otherwise on the Amendment Effective Date, if and to the extent applicable) to which it is a party, and (b) agrees that each of the Loan Documents (as amended hereby or otherwise on the Amendment Effective Date, if and to the extent applicable)  to which it is a party is and shall remain in full force and effect.  Borrower hereby (i) further ratifies and reaffirms the validity and enforceability of all of the Liens and security interests heretofore granted by Borrower, pursuant to and in connection with the Security Agreement (as defined in the Existing Credit Agreement) or any other Loan Document (as defined in the Existing Credit Agreement) to Agent, on behalf and for the benefit of each member of the Lender Group and each Bank Product Provider, as collateral security for the Obligations, and (ii) acknowledges that all of such Liens and security interests, and all Collateral heretofore pledged as security for the Obligations (as defined in the Existing Credit Agreement), continue to be and remain Collateral for the Obligations from and after the date hereof (including, without limitation, from and after giving effect to this Amendment).

12.Ratification.  Borrower hereby restates, ratifies and reaffirms each and every term and condition set forth in the Credit Agreement and the Loan Documents (as amended hereby or otherwise on the Amendment Effective Date, if and to the extent applicable) to which it is a party effective as of the date hereof and as modified hereby.

13.Severability.  In case any provision in this Amendment shall be invalid, illegal or unenforceable, such provision shall be severable from the remainder of this Amendment and the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

[Signature pages follow]

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IN WITNESS WHEREOF, the parties have entered into this Amendment as of the date first above written.

“Borrower”
ADVANCEPIERRE FOODS, INC.,
a Delaware corporation
By:	/s/ Michael B. Sims
Name:	Michael B. Sims
Title:	Chief Financial Officer, Vice President, Treasurer and Secretary

[SIGNATURE PAGE TO AMENDMENT NUMBER THREE TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]

“Agent” and “Lender”
WELLS FARGO CAPITAL FINANCE, LLC,
a Delaware limited liability company
By:	/s/ Dennis King
Name:	Dennis King
Title:	Vice President

[SIGNATURE PAGE TO AMENDMENT NUMBER THREE TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT]

“Lender”
BANK OF MONTREAL
By:	/s/ Jason Hoetler
Name:	Jason Hoetler
Title:	Director

[SIGNATURE PAGE TO AMENDMENT NUMBER THREE TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT]

EXHIBIT A

AMENDMENTS TO CREDIT AGREEMENT AND SCHEDULE 1.1

EXECUTION VERSION

SECOND AMENDED AND RESTATED CREDIT AGREEMENT

by and among

ADVANCEPIERRE FOODS, INC.

as Borrower,

THE LENDERS THAT ARE SIGNATORIES HERETO

as the Lenders,

and

WELLS FARGO CAPITAL FINANCE, LLC

as Agent

Dated as ofClosing Date - October 10, 2012

Amendment Effective Date — June 2, 2016

SECOND AMENDED AND RESTATED CREDIT AGREEMENT

THIS SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”), is entered into as of October 10, 2012, by and among the lenders identified on the signature pages hereof (each of such lenders, together with its successors and permitted assigns, is referred to hereinafter as a “Lender” as that term is hereinafter further defined), WELLS FARGO CAPITAL FINANCE, LLC, a Delaware limited liability company, as administrative agent for each member of the Lender Group and the Bank Product Providers (in such capacity, together with its successors and assigns in such capacity, “Agent”), and ADVANCEPIERRE FOODS, INC. (formerly known as Pierre Foods, Inc.), a Delaware corporation (“Borrower”).

WHEREAS, Agent, Lenders, and Borrower are parties to that certain Amended and Restated Credit Agreement, dated as of September 30, 2010 (as amended, supplemented, or otherwise modified from time to time prior to the date hereof, the “Original Credit Agreement”); and

WHEREAS, Agent, Lenders, and Borrower desire to amend and restate the Original Credit Agreement in its entirety subject to the terms and conditions set forth herein, it being understood that no repayment of the obligations under the Original Credit Agreement is being effected hereby, but merely an amendment and restatement in accordance with the terms hereof.

NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree to amend and restate the Original Credit Agreement in its entirety as follows:

1.DEFINITIONS AND CONSTRUCTION.

1.1Definitions.  Capitalized terms used in this Agreement shall have the meanings specified therefor on Schedule 1.1.

1.2Accounting Terms.  All accounting terms not specifically defined herein shall be construed in accordance with GAAP; provided, that if Borrower notifies Agent that Borrower requests an amendment to any provision hereof to eliminate the effect of any Accounting Change occurring after the Closing Date or in the application thereof on the operation of such provision (or if Agent notifies Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such Accounting Change or in the application thereof, then Agent and Borrower shall negotiate in good faith amendments to the provisions of this Agreement that are directly affected by such Accounting Change with the intent of having the respective positions of the Lenders and BorrowerParent and its Restricted Subsidiaries after such Accounting Change conform as nearly as possible to their respective positions as of the date of this Agreementimmediately before such Accounting Change took effect and, until any such amendments have been agreed upon and agreed to by the Required Lenders and Borrower, the provisions in this Agreement shall be calculated as if no such Accounting Change had occurred.  When used herein, the term “financial statements” shall include the notes and schedules thereto.  Whenever the term “BorrowerParent” is used in respect of a financial covenant or a related definition, it shall be understood to mean BorrowerParent and its Restricted Subsidiaries on a consolidated basis, unless the context clearly requires otherwise.  Notwithstanding anything to the contrary contained herein, (a) all financial statements delivered hereunder shall be prepared, and all financial covenants contained herein shall be calculated, without giving effect to any election under the Statement of Financial Accounting Standards No. 159Board’s Accounting Standards Codification Topic 825 (or any similar accounting principle) permitting a Person to value its financial liabilities or Indebtedness at the fair value thereof, and (b) the term “unqualified opinion” as used herein to refer to opinions or reports provided by accountants shall mean an opinion or report that is (i) unqualified, and (ii) does not include any explanation, supplemental comment, or other comment, in each case, concerning the ability of the applicable Person to continue as a going concern or concerning the scope of the audit; provided, that it shall not be a violation of the

foregoing, if the report and opinion accompanying the financial statements for the fiscal year ending immediately prior to the Maturity Date is subject to a “going concern” or other qualification solely as a result of such impending Maturity Date).  Whether a lease constitutes a Capitalized Lease Obligation shall be determined in accordance with GAAP and policies in conformity with those used to prepare the financial statements of Borrower and its Subsidiaries fiscal year ended December 31, 2011as in effect on the Amendment Effective Date.

1.3Code.  Any terms used in this Agreement that are defined in the Code shall be construed and defined as set forth in the Code unless otherwise defined herein; provided, that to the extent that the Code is used to define any term herein and such term is defined differently in different Articles of the Code, the definition of such term contained in Article 9 of the Code shall govern.

1.4Construction.  Unless the context of this Agreement or any other Loan Document clearly requires otherwise, references to the plural include the singular, references to the singular include the plural, the terms “includes” and “including” are not limiting, and the term “or” has, except where otherwise indicated, the inclusive meaning represented by the phrase “and/or.”  The words “hereof,” “herein,” “hereby,” “hereunder,” and similar terms in this Agreement or any other Loan Document refer to this Agreement or such other Loan Document, as the case may be, as a whole and not to any particular provision of this Agreement or such other Loan Document, as the case may be.  Section, subsection, clause, schedule, and exhibit references herein are to this Agreement unless otherwise specified.  Any reference in this Agreement or in any other Loan Document to any agreement, instrument, or document shall include all alterations, amendments, changes, extensions, modifications, renewals, replacements, substitutions, joinders, and supplements, thereto and thereof, as applicable (subject to any restrictions on such alterations, amendments, changes, extensions, modifications, renewals, replacements, substitutions, joinders, and supplements set forth herein).  Any reference in this Agreement or in any other Loan Document to any definition set forth in, or any term as defined in, any agreement, instrument, or document as in effect on the Closing Date or the Amendment Effective Date (or words of similar import), that includes reference to other definitions or defined terms shall be deemed to reference such other definitions or defined terms as they are in effect as of the Closing Date or as of the Amendment Effective Date, as applicable.  The words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties.  Any reference herein or in any other Loan Document to the satisfaction, repayment, or payment in full of the Obligations shall mean (a) the payment or repayment in full in immediately available funds of (i) the principal amount of, and interest accrued and unpaid with respect to, all outstanding Loans, together with the payment of any premium, if any, applicable to the repayment of the Loans, (ii) all Lender Group Expenses that have accrued and are unpaid regardless of whether demand has been made therefor, and (iii) all fees or charges that have accrued hereunder or under any other Loan Document (including the Letter of Credit Fee and the Unused Line Fee) and are unpaid, (b) in the case of contingent reimbursement obligations with respect to Letters of Credit, providing Letter of Credit Collateralization, (c) in the case of obligations with respect to Bank Products (other than Hedge Obligations), providing Bank Product Collateralization, (d) the receipt by Agent of cash collateral in order to secure any other contingent Obligations for which a claim or demand for payment has been made on or prior to such time or in respect of matters or circumstances known to Agent or a Lender at such time that are reasonably expected to result in any loss, cost, damage, or expense (including attorneys’ fees and legal expenses), and for which the amount of such contingent Obligations can be reasonably estimated, such cash collateral to be in such amount as Agent reasonably determines is appropriate to secure the amount of such contingent Obligations, (e) the payment or repayment in full in immediately available funds of all other outstanding Obligations (including the payment of any termination amount then applicable (or which would or could become applicable as a result of the repayment of the other Obligations) under Hedge Agreements provided by Hedge Providers) other than (i) unasserted contingent indemnification Obligations and unasserted Lender Group Expenses, (ii) any Bank Product Obligations (other than Hedge Obligations) that, at such time, are allowed, by their terms or otherwise, by the applicable Bank Product Provider to remain outstanding without being required to be repaid or cash collateralized, and (iii) any Hedge Obligations that, at such time, are allowed, by their terms or otherwise, by the applicable Hedge Provider to remain outstanding without being required to be repaid, and (f) the termination of all of the Commitments of the Lenders.  Any reference herein

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to any Person shall be construed to include such Person’s successors and assigns.  Any requirement of a writing contained herein or in any other Loan Document shall be satisfied by the transmission of a Record.

1.5Schedules and Exhibits.  All of the schedules and exhibits attached to this Agreement shall be deemed incorporated herein by reference.

1.6Time References.  Unless the context of this Agreement or any other Loan Document clearly requires otherwise, all references to time of day refer to Pacific standard time or Pacific daylight saving time, as in effect in Los Angeles, California on such day.  For purposes of the computation of a period of time from a specified date to a later specified date, unless otherwise expressly provided, the word “from” means “from and including” and the words “to” and “until” each means “to and including”; provided, that with respect to a computation of fees or interest payable to Agent or any Lender, such period shall in any event consist of at least one full day.

1.7Limited Condition Acquisition.  Notwithstanding anything to the contrary in this Agreement, for purposes of (i) determining compliance with any provision of this Agreement that requires the calculation of the Fixed Charge Coverage Ratio or the Total Net Leverage Ratio, (ii) determining compliance with representations and warranties or the occurrence of any Default or Event of Default (other than as a condition to the making of any Advance or the issuance of any Letter of Credit) or (iii) testing availability under baskets set forth herein (including baskets measured as a percentage of EBITDA), in each case, in connection with a Permitted Acquisition or another Permitted Investment by one or more of Parent and its Restricted Subsidiaries, in each case the consummation of which is not conditioned on the availability of, or on obtaining, third-party financing (any such acquisition, a “Limited Condition Acquisition”), at the option of Borrower (Borrower’s election to exercise such option in connection with any Limited Condition Acquisition, an “LCA Election”), the date of determination of whether any such Limited Condition Acquisition is permitted hereunder shall be deemed to be the date that the definitive agreement for such Limited Condition Acquisition is entered into (the “LCA Test Date”), and if, after giving pro forma effect to the Limited Condition Acquisition and the other transactions to be entered into in connection therewith as if they had occurred at the beginning of the most recent Calculation Period ending prior to the LCA Test Date, Parent or its applicable Restricted Subsidiary could have taken such action on the relevant LCA Test Date in compliance with such ratio or basket, such ratio or basket shall be deemed to have been complied with for such Limited Condition Acquisition.  For the avoidance of doubt, if Borrower has made an LCA Election and any of the ratios or baskets for which compliance was determined or tested as of the LCA Test Date (including with respect to the incurrence of any Indebtedness) are exceeded as a result of fluctuations in any such ratio or basket (including due to fluctuations of the target of any Limited Condition Acquisition) at or prior to the consummation of the relevant transaction or action, such baskets or ratios will not be deemed to have been exceeded as a result of such fluctuations.  If Borrower has made an LCA Election for any Limited Condition Acquisition, then in connection with any subsequent calculation of any ratio or basket (other than for purposes of calculating compliance with (x) the financial covenant set forth in Section 7 or (y) the Payment Conditions) on or following the relevant LCA Test Date and prior to the earlier of (i) the date on which such Limited Condition Acquisition is consummated or (ii) the date that the definitive agreement for such Limited Condition Acquisition is terminated or expires without consummation of such Limited Condition Acquisition, any such ratio or basket shall be calculated on a Pro Forma Basis assuming such Limited Condition Acquisition and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated; provided, that such Limited Condition Acquisition shall be actually consummated within 180 days or the relevant “drop-dead date” (as extended), if shorter, of the relevant LCA Test Date. Notwithstanding anything to the contrary herein, with respect to any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement that does not require compliance with a financial ratio or test (any such amounts, the “Fixed Amounts”) substantially concurrently with any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement that requires compliance with any such financial ratio or test (any such amounts, the “Incurrence Based Amounts”), it is understood and agreed that the Fixed Amounts shall be disregarded in the calculation of

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the financial ratio or test applicable to the Incurrence-Based Amounts in connection with such substantially concurrent incurrence.

2.LOANS AND TERMS OF PAYMENT.

2.1Revolver Advances.

(a)Subject to the terms and conditions of this Agreement, and during the term of this Agreement, each Revolving Lender agrees (severally, not jointly or jointly and severally) to make revolving loans (“Advances”) to Borrower in an amount at any one time outstanding not to exceed the lesser of (i) such Lender’s Revolver Commitment, or (ii) such Lender’s Pro Rata Share of an amount equal to the lesser of (A) the amount equal to (1) the Maximum Revolver Amount less (2) the sum of (y) the Letter of Credit Usage at such time, plus (z) the principal amount of Swing Loans outstanding at such time, and (B) the amount equal to (1) the Borrowing Base at such timeas of such date (based upon the most recent Borrowing Base Certificate delivered by Borrower to Agent, as adjusted for Reserves established by Agent in accordance with Section 2.1(c)), less (2) the sum of (y) the Letter of Credit Usage at such time, plus (z) the principal amount of Swing Loans outstanding at such time.

(b)Amounts borrowed pursuant to this Section 2.1 may be repaid and, subject to the terms and conditions of this Agreement, reborrowed at any time during the term of this Agreement.  The outstanding principal amount of the Advances, together with interest accrued and unpaid thereon, shall constitute Obligations and shall be due and payable on the Maturity Date or, if earlier, on the date on which they are declaredotherwise become due and payable pursuant to the terms of this Agreement.

(c)Anything to the contrary in this Section 2.1 notwithstanding, Agent shall have the right (but not the obligation) at any time, in the exercise of its Permitted Discretion, to establish reservesand increase or decrease Reserves and Bank Product Reserves against the Borrowing Base in such amounts, and with respect to such matters, as Agent in its Permitted Discretion shall deem necessary or appropriate, including reserves with respect to (i) sums that Borrower or its Subsidiaries are required to pay under any Section of this Agreement or any other Loan Document (such as taxes, assessments, insurance premiums, or, in the case of leased assets, rents or other amounts payable under such leases) and has failed to pay, and (ii) amounts owing by Borrower or its Subsidiaries to any Person to the extent secured by a Lien on, or trust over, any of the Borrowing Base Collateral (other than a Permitted Lien), which Lien or trust, in the Permitted Discretion of Agent likely would have a priority superior to the Agent’s Liens (such as Liens or trusts in favor of landlords, warehousemen, carriers, mechanics, materialmen, laborers, or suppliers, or Liens or trusts for ad valorem, excise, sales, or other taxes where given priority under applicable law) in and to such item of the Borrowing Base Collateral; provided, that reserves shall bearor the Maximum Revolver Amount; provided, that Agent shall notify Borrower at least 5 Business Days prior to the date on which any such Reserve or Bank Product Reserve is to be established or increased, but a non-willful failure of Agent to so notify Borrower shall not be a breach of this Agreement and shall not cause such establishment or increase of any such Reserve or Bank Product Reserve to be ineffective; provided, further, that (A) Borrower may not obtain any new Advances (including Swing Loans) or Letters of Credit to the extent that such Advances (including Swing Loans) or Letter of Credit would cause an Overadvance after giving effect to the establishment or increase of such Reserve or Bank Product Reserve as set forth in such notice; (B) no such prior notice shall be required for changes to any Reserves resulting solely by virtue of mathematical calculations of the amount of such Reserves in accordance with the methodology of calculation set forth in this Agreement or previously utilized; (C) no such prior notice shall be required during the continuance of any Event of Default; and (D) no such prior notice shall be required with respect to any Reserve established in respect of any Lien that has priority over Agent’s Liens on the Collateral.  Upon notice of or establishment or increase in Reserves or Bank Product Reserves, Agent agrees to make itself available to discuss the Reserve or Bank Product Reserve or the increase, and Borrower may take such action as may be required so that the event, condition, circumstance, or fact that is the basis for such reserve or increase no longer exists, in a manner and to the extent reasonably satisfactory to Agent in the exercise of its Permitted Discretion.  The amount of any Reserve or Bank Product

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Reserve established by Agent, and any changes to the eligibility criteria set forth in the definitions of Eligible Accounts, Eligible Credit Card Receivables, and Eligible Inventory shall have a commercially reasonable relationship to the cost, risk, or other matter reserved for,event, condition, other circumstance or fact that is the basis for such reserve or change in eligibility and shall not be duplicative of any other reserve established and currently maintained and shall not duplicate eligibility criteria contained in the definitionsdetermination of “Eligible Accounts”, “Eligible Credit Card Receivables” or “Eligible Inventory” or matters taken into account in the determination of the Borrowing Base.

2.2[Intentionally Omitted]

2.3Borrowing Procedures and Settlements.

(a)Procedure for Borrowing.  Each Borrowing shall be made by a written request by an Authorized Person delivered to Agent and received by Agent no later than 1:00 p10:00 a.m. (Massachusetts time) (i) on the Business Day that is the requested Funding Date in the case of a request for a Swing Loan, and (ii) on the Business Day that is 1 Business Day prior to the requested Funding Date in the case of a request for a Base Rate Loan, and (iii) on the Business Day that is 3 Business Days prior to the requested Funded Date in the case of all other requests, specifying (iA) the amount of such Borrowing, and (iiB) the requested Funding Date, which shall be a Business Day; provided, that Agent may, in its sole discretion, elect to accept as timely requests that are received later than 1:00 p10:00 a.m. (Massachusetts time) on the applicable Business Day.  At Agent’s election, in lieu of delivering the above-described written request, any Authorized Person may give Agent telephonic notice of such request by the required time.  In such circumstances, Borrower agrees that any such telephonic notice will be confirmed in writing within 24 hours of the giving of such telephonic notice, but the failure to provide such written confirmation shall not affect the validity of the request.

(b)Making of Swing Loans.  In the case of a request for an Advance and so long as either (i) the aggregate amount of Swing Loans made since the last Settlement Date, minus all payments or other amounts applied to Swing Loans since the last Settlement Date, plus the amount of the requested Swing Loan does not exceed $20,000,000, or (ii) Swing Lender, in its sole discretion, agrees to make a Swing Loan notwithstanding the foregoing limitation, Swing Lender shall make an Advance (any such Advance made by Swing Lender pursuant to this Section 2.3(b) being referred to as a “Swing Loan” and all such Advances being referred to as “Swing Loans”) available to Borrower on the Funding Date applicable thereto by transferring immediately available funds in the amount of such requested Borrowing to the Designated Account.  Each Swing Loan shall be deemed to be an Advance hereunder and shall be subject to all the terms and conditions (including Section 3) applicable to other Advances, except that all payments (including interest) on any Swing Loan shall be payable to Swing Lender solely for its own account.  Subject to the provisions of Section 2.3(d)(ii), Swing Lender shall not make and shall not be obligated to make any Swing Loan if Swing Lender has actual knowledge that (i) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing, or (ii) the requested Borrowing would exceed the Availability on such Funding Date.  Swing Lender shall not otherwise be required to determine whether the applicable conditions precedent set forth in Section 3 have been satisfied on the Funding Date applicable thereto prior to making any Swing Loan.  The Swing Loans shall be secured by the Agent’s Liens, constitute Advances and Obligations, and bear interest at the rate applicable from time to time to Base Rate Loans.

(c)Making of LoansAdvances.

(i)In the event that Swing Lender is not obligated to make a Swing Loan, then after receipt of a request for a Borrowing pursuant to Section 2.3(a), Agent shall notify the Lenders by telecopy, telephone, email, or other electronic form of transmission, of the requested Borrowing; such notification to be sent on the Business Day that is at least 1 Business Day prior to the requested Funding Date.  Each Lender shall make the amount of such Lender’s Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent’s Account, not later than 1:00 p10:00 a.m. (Massachusetts

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time) on the Business Day that is the requested Funding Date.  After Agent’s receipt of the proceeds of such Advances from the Lenders, Agent shall make the proceeds thereof available to Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to the Designated Account; provided, that, subject to the provisions of Section 2.3(d)(ii), no Lender shall have thean obligation to make any Advance if (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Availability on such Funding Date.

(ii)Unless Agent receives notice from a Lender prior to 11:599:30 a.m. (Massachusetts time) on the Business Day that is the requested Funding Date relative to a requested Borrowing as to which Agent has notified the Lenders of a requested Borrowing that such Lender will not make available as and when required hereunder to Agent for the account of Borrower the amount of that Lender’s Pro Rata Share of the Borrowing, Agent may assume that each Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrower on such date a corresponding amount.  If, on the requested Funding Date, any Lender shall not have remitted the full amount that it is required to make available to Agent in immediately available funds and if Agent has made available to Borrower such amount, then such Lender shall make the amount of such Lender’s Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent’s Account no later than 1:00 p10:00 a.m. (Massachusetts time) on the Business Day that is the first Business Day after the requested Funding Date (in which case, the interest accrued on such Lender’s portion of such Borrowing for the Funding Date shall be for Agent’s separate account).  If any Lender shall not remit the full amount that it is required to make available to Agent in immediately available funds as and when required hereby and if Agent has made available to Borrower such amount, then that Lender shall be obligated to immediately remit such amount to Agent, together with interest at the Defaulting Lender Rate for each day until the date on which such amount is so remitted.  A notice submitted by Agent to any Lender with respect to amounts owing under this Section 2.3(c)(ii) shall be conclusive, absent manifest error.  If the amount that a Lender is required to remit is made available to Agent, then such payment to Agent shall constitute such Lender’s Advance for all purposes of this Agreement.  If such amount is not made available to Agent on or prior to the Business Day following the Funding Date, Agent will notify Borrower of such failure to fund and, upon demand by Agent, Borrower shall pay such amount to Agent for Agent’s account, together with interest thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal to the interest rate applicable at the time to the Revolving Loans composing such Borrowing.

(d)Protective Advances and Optional Overadvances.

(i)Any contrary provision of this Agreement or any other Loan Document notwithstanding, but subject to Section 2.3(d)(iv), and notwithstanding whether Overadvances exist or whether the principal amount of Overadvances exceeds the limits set forth in Section 2.3(d)(ii), Agent hereby is authorized by Borrower and the Lenders, from time to time, in Agent’s sole discretion, (A) at any time after the occurrence and during the continuance of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 3 are not satisfied, to make Advances to, or for the benefit of, Borrower on behalf of the Lenders that Agent, in its Permitted Discretion, deems necessary or desirable (1) to preserve or protect the Collateral, or any portion thereof, or (2) to enhance the likelihood of repayment of the Obligations (other than the Bank Product Obligations) (any of the Advances described in this Section 2.3(d)(i) shall be referred to as “Protective Advances”), so long as, after giving effect to a Protective Advance and subject to clause (iv) below, the aggregate outstanding amount of all Protective Advances does not exceed the lesser of (x) $15,000,000 and (y) 10% of the Borrowing Base.

(ii)Any contrary provision of this Agreement or any other Loan Document notwithstanding, but subject to Section 2.3(d)(iv), the Lenders hereby authorize Agent or Swing Lender, as applicable, and either Agent or Swing Lender, as applicable, may, but is not obligated to, knowingly and intentionally, continue to make Advances (including Swing Loans) to Borrower notwithstanding that an

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Overadvance exists or would be created thereby, so long as (A) after giving effect to such Advances and subject to clause (iv) below, the outstanding Revolver Usage does not exceed the Borrowing Base by more than the lesser of (x) $15,000,000 and (y) 10% of the Borrowing Base, and (B) after giving effect to such Advances, the outstanding Revolver Usage (except for and excluding amounts charged to the Loan Account for interest, fees, or Lender Group Expenses) does not exceed the Maximum Revolver Amount.  In the event Agent obtains actual knowledge that the Revolver Usage exceeds the amounts permitted by the immediately foregoing provisionsthis Section 2.3(d), regardless of the amount of, or reason for, such excess, Agent shall notify the Lenders as soon as practicable (and prior to making any (or any additional) intentional Overadvances (except for and excluding amounts charged to the Loan Account for interest, fees, or Lender Group Expenses) unless Agent determines that prior notice would result in imminent harm to the Collateral or its value), in which case Agent may make such Overadvances and provide notice as promptly as practicable thereafter), and the Revolving Lenders thereupon shall, together with Agent, jointly determine the terms of arrangements that shall be implemented with Borrower intended to reduce, within a reasonable time, the outstanding principal amount of the Advances to Borrower to an amount permitted by the preceding sentence.  In such circumstances, if any Revolving Lender objects to the proposed terms of reduction or repayment of any Overadvance, the terms of reduction or repayment thereof shall be implemented according to the determination of the Required Lenders.  The foregoing provisions are meant for the benefit of the Lenders and Agent and are not meant for the benefit of Borrower, which shall continue to be bound by the provisions of Section 2.5.  Each Revolving Lender shall be obligated to settle with Agent as provided in Section 2.3(e) or Section 2.3(g), as applicable, for the amount of such Lender’s Pro Rata Share of any unintentional Overadvances by Agent reported to such Lender, any intentional Overadvances made as permitted under this Section 2.3(d)(ii), and any Overadvances resulting from the charging to the Loan Account of interest, fees, or Lender Group Expenses.2.4(e).

(iii)Each Protective Advance and each Overadvance (each, an “Extraordinary Advance”) shall be deemed to be an Advance hereunder, except that no Extraordinary Advance shall be eligible to be a LIBOR Rate Loan and, prior.  Prior to Settlement thereforof any Extraordinary Advance, all payments on the Extraordinary Advanceswith respect thereto, including interest thereon, shall be payable to Agent solely for its own account. Notwithstanding anything contained herein to the contrary, the authorization provided to Agent to make Protective Advances and Overadvances as set forth in this Section 2.3(d) and the making of Protective Advances or Overadvances pursuant to this Section 2.3(d) shall not constitute a waiver of any Event of Default arising from Borrower’s failure to comply with Section 2.4(e); provided, that unless Required Lenders otherwise direct Agent, Agent may, in its sole discretion, forbear from exercising any or all of its rights and remedies as a result of such Event of Default.  Each Lender shall be obligated to settle with Agent as provided in Section 2.3(e) (or Section 2.3(g), as applicable) for the amount of such Lender’s Pro Rata Share of any Extraordinary Advance.  The Extraordinary Advances shall be repayable on demand, secured by the Agent’s Liens, constitute Obligations hereunder, and bear interest at the rate applicable from time to time to Advances that are Base Rate Loans.  The provisions of this Section 2.3(d) are for the exclusive benefit of Agent, Swing Lender, and the Lenders and are not intended to benefit Borrower (or any other Loan Party) in any way.

(iv)Notwithstanding anything contained in this Agreement or any other Loan Document to the contrary, no Extraordinary Advance may be made by Agent if such Extraordinary Advance would cause the aggregate principal amount of Extraordinary Advances outstanding to exceed $15,000,000Revolver Usage to exceed the Maximum Revolver Amount or any Lender’s Pro Rata Share of the Revolver Usage to exceed such Lender’s Revolver Commitments.

(e)Settlement.  It is agreed that each Lender’s funded portion of the Advances is intended by the Lenders to equal, at all times, such Lender’s Pro Rata Share of the outstanding Advances.  Such agreement notwithstanding, Agent, Swing Lender, and the other Lenders agree (which agreement shall not be for the benefit of Borrower) that in order to facilitate the administration of this Agreement and the other Loan Documents, settlement among the Lenders as to the Advances, Swing Loans, and Extraordinary Advances shall take place on a periodic basis in accordance with the following provisions:

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(i)Agent shall request settlement (“Settlement”) with the Lenders on a weekly basis, or on a more frequent basis if so determined by Agent in its sole discretion (1) on behalf of Swing Lender, with respect to the outstanding Swing Loans, (2) for itself, with respect to the outstanding Extraordinary Advances, and (3) with respect to Borrower’s orany Loan Party’s or any of its Subsidiaries’ payments or other amounts received, as to each by notifying the Lenders by telecopy, telephone, email or other similarelectronic form of transmission, of such requested Settlement, no later than 5:002:00 p.m. (Massachusetts time) on the Business Day immediately prior to the date of such requested Settlement (the date of such requested Settlement being the “Settlement Date”).  Such notice of a Settlement Date shall include a summary statement of the amount of outstanding Advances, (including Swing Loans, and Extraordinary Advances) for the period since the prior Settlement Date.  Subject to the terms and conditions contained herein (including Section 2.3(g)):  (y) if the outstanding amount of the Advances (including Swing Loans and Extraordinary Advances) made by a Lender that is not a Defaulting Lender exceeds such Lender’s Pro Rata Share of the Advances (including Swing Loans and Extraordinary Advances) as of a Settlement Date, then Agent shall, by no later than 3:0012:00 p.m. (Massachusetts time) on the Settlement Date, transfer in immediately available funds to a Deposit Account of such Lender (as such Lender may designate), an amount such that each such Lender shall, upon receipt of such amount, have as of the Settlement Date, its Pro Rata Share of the Advances (including Swing Loans and Extraordinary Advances), and (z) if the outstanding amount of the Advances (including Swing Loans and Extraordinary Advances) made by a Lender is less than such Lender’s Pro Rata Share of the Advances (including Swing Loans and Extraordinary Advances) as of a Settlement Date, such Lender shall no later than 3:0012:00 p.m. (Massachusetts time) on the Settlement Date transfer in immediately available funds to the Agent’s Account, an amount such that each such Lender shall, upon transfer of such amount, have as of the Settlement Date, its Pro Rata Share of the Advances (including Swing Loans and Extraordinary Advances).  Such amounts made available to Agent under clause (z) of the immediately preceding sentence shall be applied against the amounts of the applicable Swing Loans or Extraordinary Advances and, together with the portion of such Swing Loans or Extraordinary Advances representing Swing Lender’s Pro Rata Share thereof, shall constitute Advances of such Lenders.  If any such amount is not made available to Agent by any Lender on the Settlement Date applicable thereto to the extent required by the terms hereof, Agent shall be entitled to recover for its account such amount on demand from such Lender together with interest thereon at the Defaulting Lender Rate.

(ii)In determining whether a Lender’s balance of the Advances, (including Swing Loans, and Extraordinary Advances) is less than, equal to, or greater than such Lender’s Pro Rata Share of the Advances, (including Swing Loans, and Extraordinary Advances) as of a Settlement Date, Agent shall, as part of the relevant Settlement, apply to such balance the portion of payments actually received in good funds by Agent with respect to principal, interest, fees payable by Borrower and allocable to the Lenders hereunder, and proceeds of Collateral.

(iii)Between Settlement Dates, Agent, to the extent Extraordinary Advances or Swing Loans are outstanding, may pay over to Agent or Swing Lender, as applicable, any payments or other amounts received by Agent, that in accordance with the terms of this Agreement would be applied to the reduction of the Advances, for application to the Extraordinary Advances or Swing Loans.  Between Settlement Dates, Agent, to the extent no Extraordinary Advances or Swing Loans are outstanding, may pay over to Swing Lender any payments or other amounts received by Agent, that in accordance with the terms of this Agreement would be applied to the reduction of the Advances, for application to Swing Lender’s Pro Rata Share of the Advances.  If, as of any Settlement Date, payments or other amounts of the Loan Parties or their Subsidiaries received since the then immediately preceding Settlement Date have been applied to Swing Lender’s Pro Rata Share of the Advances other than to Swing Loans, as provided for in the previous sentence, Swing Lender shall pay to Agent for the accounts of the Lenders, and Agent shall pay to the Lenders (other than a Defaulting Lender if Agent has implemented the provisions of Section 2.3(g)), to be applied to the outstanding Advances of such Lenders, an amount such that each Lender shall, upon receipt of such amount, have, as of such Settlement Date, its Pro Rata Share of the Advances.  During the period between Settlement Dates, Swing Lender with respect to Swing Loans, Agent with respect to Extraordinary Advances, and each Lender with respect to the Advances other than Swing Loans and Extraordinary Advances, shall be entitled to

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interest at the applicable rate or rates payable under this Agreement on the daily amount of funds employed by Swing Lender, Agent, or the Lenders, as applicable.

(iv)Anything in this Section 2.3(e) to the contrary notwithstanding, in the event that a Lender is a Defaulting Lender, Agent shall be entitled to refrain from remitting settlement amounts to the Defaulting Lender and, instead, shall be entitled to elect to implement the provisions set forth in Section 2.3(g).

(f)Notation.  Agent, as a non-fiduciary agent for Borrower, shall maintain a register (in accordance with Section 13.1) showing the principal amount of the Advances, owing to each Lender, including the Swing Loans owing to Swing Lender, and Extraordinary Advances owing to Agent, and the interests therein of each Lender, from time to time and such register shall, absent manifest error, be presumed to be correct and accurate.

(g)Defaulting Lenders.

(i)Notwithstanding the provisions of Section 2.4(b)(ii), Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrower to Agent for the Defaulting Lender’s benefit or any proceeds of Collateral that would otherwise be remitted hereunder to the Defaulting Lender, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments (A) first, to Agent to the extent of any Extraordinary Advances that were made by Agent and that were required to be, but were not, paid by Defaulting Lender, (B) second, to Swing Lender to the extent of any outstanding Swing Loans that were made by Swing Lender and that were required to be, but were not, paid by the Defaulting Lender, (BC) secondthird, to Issuing Lender, to the extent of the portion of any outstanding Letter of Credit Disbursement that was required to be, but was not, paid by the Defaulting Lender, (CD) thirdfourth, to each Non-Defaulting Lender ratably in accordance with its Revolver Commitment (but, in each case, only to the extent that such Defaulting Lender’s portion of an Advance (or other funding obligation) was funded by such other Non-Defaulting Lender), (DE) fourthfifth, to a suspense account maintained by Agent, the proceeds of which shall be retained by Agent and may be made available to be re-advanced to or for the benefit of Borrower (upon the request of Borrower and subject to the conditions set forth in Section 3.2) as if such Defaulting Lender had made its portion of Advances (or other funding obligations) hereunder, and (EF) seventh, from and after the date on which all other Obligations have been paid in full, to such Defaulting Lender in accordance with tier (L) of Section 2.4(b)(ii).  Subject to the foregoing, Agent may hold and, in its discretion, re-lend to Borrower for the account of such Defaulting Lender the amount of all such payments received and retained by Agent for the account of such Defaulting Lender.  Solely for the purposes of voting or consenting to matters with respect to the Loan Documents (including the calculation of Pro Rata Share in connection therewith) and for the purpose of calculating the fee payable under Section 2.10(b), such Defaulting Lender shall be deemed not to be a “Lender” and such Lender’s Revolver Commitment shall be deemed to be zero; provided, that the foregoing shall not apply to any of the matters governed by Section 14.1(a)(i) through (iii).  The provisions of this Section 2.3(g) shall remain effective with respect to such Defaulting Lender until the earlier of (y) the date on which all of the Non-Defaulting Lenders, Agent, Issuing Lender, and Borrower shall have waived, in writing, the application of this Section 2.3(g) to such Defaulting Lender, or (z) the date on which such Defaulting Lender makes payment of all amounts that it was obligated to fund hereunder, pays to Agent all amounts owing by Defaulting Lender in respect of the amounts that it was obligated to fund hereunder, and, if requested by Agent, provides adequate assurance of its ability to perform its future obligations hereunder (on which earlier date, so long as no Event of Default has occurred and is continuing, any remaining cash collateral held by Agent pursuant to Section 2.3(g)(ii) shall be released to Borrower).  The operation of this Section 2.3(g) shall not be construed to increase or otherwise affect the Commitment of any Lender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrower of its duties and obligations hereunder to Agent, Issuing Lender, or to the Lenders other than such Defaulting Lender.  Any failure by a Defaulting Lender to fund amounts that it was obligated to fund hereunder shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Borrower, in addition to any other remedies to

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which it may be entitled under applicable law, at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolver Commitment of such Defaulting Lender, such substitute Lender to be reasonably acceptable to Agent.  In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being paid its share of the outstanding Obligations (other than Bank Product Obligations, but including (1) all interest, fees, and other amounts that may be due and payable in respect thereof, and (2) an assumption of its Pro Rata Share of its participation in the Letters of Credit); provided, that any such assumption of the Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or Borrower’s rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.  In the event of a direct conflict between the priority provisions of this Section 2.3(g) and any other provision contained in this Agreement or any other Loan Document, it is the intention of the parties hereto that such provisions be read together and construed, to the fullest extent possible, to be in concert with each other.  In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.3(g) shall control and govern.

(ii)If any Swing Loan or Letter of Credit is outstanding at the time that a Lender becomes a Defaulting Lender then:

(A)such Defaulting Lender’s Swing Loan Exposure and Letter of Credit Exposure shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Shares but only to the extent (x) the sum of all Non-Defaulting Lenders’ Revolving Loan Exposures plus such Defaulting Lender’s Swing Loan Exposure and Letter of Credit Exposure does not exceed the total of all Non-Defaulting Lenders’ Revolver Commitments and (y) the conditions set forth in Section 3.2 are satisfied at such time;

(B)if the reallocation described in clause (A) above cannot, or can only partially, be effected, Borrower shall within 1 Business Day following notice by the Agent (x) first, prepay such Defaulting Lender’s Swing Loan Exposure (after giving effect to any partial reallocation pursuant to clause (A) above) and (y) second, cash collateralize such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (A) above), pursuant to a cash collateral agreement to be entered into in form and substance reasonably satisfactory to the Agent, for so long as such Letter of Credit Exposure is outstanding; provided, that Borrower shall not be obligated to cash collateralize any Defaulting Lender’s Letter of Credit Exposure if such Defaulting Lender is also the Issuing Lender;

(C)if Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to this Section 2.3(g)(ii), Borrower shall not be required to pay any Letter of Credit Fees to Agent for the account of such Defaulting Lender pursuant to Section 2.6(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit Exposure during the period such Letter of Credit Exposure is cash collateralized;

(D)to the extent the Letter of Credit Exposure of the Non-Defaulting Lenders is reallocated pursuant to this Section 2.3(g)(ii), then the Letter of Credit Fees payable to the Non-Defaulting Lenders pursuant to Section 2.6(b) shall be adjusted in accordance with such Non-Defaulting Lenders’ Letter of Credit Exposure;

(E)to the extent any Defaulting Lender’s Letter of Credit Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.3(g)(ii), then, without prejudice to any rights or remedies of the Issuing Lender or any Lender hereunder, all Letter of Credit Fees that would have otherwise been payable to such Defaulting Lender under Section 2.6(b) with respect to such portion of such Letter of Credit Exposure shall instead be payable to the Issuing Lender until such portion of such Defaulting Lender’s Letter of Credit Exposure is cash collateralized or reallocated;

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(F)so long as any Lender is a Defaulting Lender, the Swing Lender shall not be required to make any Swing Loan and the Issuing Lender shall not be required to issue, amend, or increase any Letter of Credit, in each case, to the extent (x) the Defaulting Lender’s Pro Rata Share of such Swing Loans or Letter of Credit cannot be reallocated pursuant to this Section 2.3(g)(ii) or (y) the Swing Lender or Issuing Lender, as applicable, has not otherwise entered into arrangements reasonably satisfactory to the Swing Lender or Issuing Lender, as applicable, and Borrower to eliminate the Swing Lender’s or Issuing Lender’s risk with respect to the Defaulting Lender’s participation in Swing Loans or Letters of Credit; and

(G)Agent may release any cash collateral provided by Borrower pursuant to this Section 2.3(g)(ii) to the Issuing Lender, and the Issuing Lender may apply any such cash collateral to the payment of such Defaulting Lender’s Pro Rata Share of any Letter of Credit Disbursement that is not reimbursed by Borrower pursuant to Section 2.11(d).  Subject to Section 17.13, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.

(h)Independent Obligations.  All Advances (other than Swing Loans and Extraordinary Advances) shall be made by the Lenders contemporaneously and in accordance with their Pro Rata Shares.  It is understood that (i) no Lender shall be responsible for any failure by any other Lender to perform its obligation to make any Advance (or other extension of credit) hereunder, nor shall any Commitment of any Lender be increased or decreased as a result of any failure by any other Lender to perform its obligations hereunder, and (ii) no failure by any Lender to perform its obligations hereunder shall excuse any other Lender from its obligations hereunder.

2.4Payments; Reductions of Commitments; Prepayments.

(a)Payments by Borrower.

(i)Except as otherwise expressly provided herein, all payments by Borrower shall be made to Agent’s Account for the account of the Lender Group and shall be made in immediately available funds, no later than 2:001:30 p.m. (Massachusetts time) on the date specified herein.  AnyFor purposes of calculating interest and fees, any payment received by Agent later than 2:001:30 p.m. (Massachusetts time) shall be deemed to have been received (unless Agent, in its sole discretion, elects to credit it on the date received) on the following Business Day and any applicable interest or fee shall continue to accrue until such following Business Day.

(ii)Unless Agent receives notice from Borrower prior to the date on which any payment is due to the Lenders that Borrower will not make such payment in full as and when required, Agent may assume that Borrower has made (or will make) such payment in full to Agent on such date in immediately available funds and Agent may (but shall not be so required), in reliance upon such assumption, distribute to each Lender on such due date an amount equal to the amount then due such Lender.  If and to the extent Borrower does not make such payment in full to Agent on the date when due, each Lender severally shall repay to Agent on demand such amount distributed to such Lender, together with interest thereon at the Defaulting Lender Rate for each day from the date such amount is distributed to such Lender until the date repaid.

(b)Apportionment and Application.

(i)So long as no Application Event has occurred and is continuing and except as otherwise provided herein with respect to Defaulting Lenders, all principal and interest payments received by Agent shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and all payments of fees and expenses

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received by Agent (other than fees or expenses that are for Agent’s separate account or for the separate account of Issuing Lender) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee or expense relates.  All payments to be made hereunder by Borrower shall be remitted to Agent and all (, subject to Section 2.4(b)(iv)), such payments, and all proceeds of Collateral received by Agent, shall be applied, so long as no Application Event has occurred and is continuing and except as otherwise provided herein with respect to Defaulting Lenders, to reduce the balance of the Advances outstanding and, thereafter, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.

(ii)At any time that an Application Event has occurred and is continuing and except as otherwise provided herein with respect to Defaulting Lenders, all payments remitted to Agent and all proceeds of Collateral received by Agent shall be applied as follows:

(A)first, to pay any Lender Group Expenses (including cost or expense reimbursements) or indemnities then due to Agent under the Loan Documents, until paid in full,

(B)second, to pay any fees or premiums then due to Agent under the Loan Documents until paid in full,

(C)third, to pay interest accrued in respect of all Protective Advances until paid in full,

(D)fourth, to pay the principal of all Protective Advances until paid in full,

(E)fifth, ratably to pay any Lender Group Expenses (including cost or expense reimbursements) or indemnities then due to any of the Lenders under the Loan Documents, until paid in full,

(F)sixth, ratably to pay any fees or premiums then due to any of the Lenders under the Loan Documents until paid in full,

(G)seventh, to pay interest accrued in respect of the Swing Loans until paid in full,

(H)eighth, to pay the principal of all Swing Loans until paid in full,

(I)ninth, ratably to pay interest accrued in respect of the Advances (other than Protective Advances) until paid in full,

(J)tenth, ratably

(i)to pay the principal of all Advances until paid in full,

(ii)to Agent, to be held by Agent, for the benefit of Issuing Lender (and for the ratable benefit of each of the Lenders that have an obligation to pay to Agent, for the account of Issuing Lender, a share of each Letter of Credit Disbursement), as cash collateral in an amount up to 105% of the Letter of Credit Usage (to the extent permitted by applicable law, such cash collateral shall be applied to the reimbursement of any Letter of Credit Disbursement as and wherewhen such disbursement occurs and, if a Letter of Credit expires undrawn, the cash collateral held by Agent in respect of such Letter of Credit, shall be reapplied pursuant to this Section 2.4(b)(ii), beginning with tier (A) hereof), and

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(iii)to Agent, to be held by Agent, for the ratable benefit of the Bank Product Providers, as cash collateral in an amount up to the amount the Bank Product Providers reasonably determine to be the credit exposure of BorrowerParent and its Restricted Subsidiaries in respect of Bank Products Obligations as and when such amounts first become due and payable and, if any such Bank Product Obligation is paid or otherwise satisfied in full, the cash collateral held by Agent in respect of such Bank Product Obligation shall, to the extent permitted by applicable law, be reapplied pursuant to this Section 2.4(b)(ii), beginning with tier (A) hereof),

(K)eleventh, to pay any other Obligations other than Obligations owed to Defaulting Lenders,

(L)twelfth, ratably to pay any Obligations owed to Defaulting Lenders, and

(M)thirteenth, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.

(iii)Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.3(e).

(iv)In each instance, so long as no Application Event has occurred and is continuing, Section 2.4(b)(i) shall not apply to any payment made by Borrower to Agent and specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement or any other Loan Document.

(v)For purposes of Section 2.4(b)(ii), “paid in full” of a type of Obligation means payment in cash or immediately available funds of all amounts owing on account of such type of Obligation, including interest accrued after the commencement of any Insolvency Proceeding, default interest, interest on interest, and expense reimbursements, irrespective of whether any of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.

(vi)In the event of a direct conflict between the priority provisions of this Section 2.4 and any other provision contained in this Agreement or any other Loan Document (other than the Intercreditor Agreement), it is the intention of the parties hereto that such provisions be read together and construed, to the fullest extent possible, to be in concert with each other.  In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, if the conflict relates to the provisions of Section 2.3(g) and this Section 2.4, then the provisions of Section 2.3(g) shall control and govern, and if otherwise, then the terms and provisions of this Section 2.4 shall control and govern.

(c)Reduction of Revolver Commitments.  The Revolver Commitments shall terminate on the Maturity Date or earlier termination thereof pursuant to the terms of this Agreement.  Borrower may reduce the Revolver Commitments, without premium or penalty, to an amount (which may be zero) not less than the sum of (A) the Revolver Usage as of such date, plus (B) the principal amount of all Advances not yet made as to which a request has been given by Borrower under Section 2.3(a) and not subsequently revoked), plus (C) the amount of all Letters of Credit not yet issued as to which a request has been given (and not revoked) by Borrower pursuant to Section 2.11(a).  Each such reduction shall be in a minimum amount of $5,000,000 (unless the Revolver Commitments are being reduced to zero and the amount of the Revolver Commitments in effect immediately prior to such reduction are less than $5,000,000), shall be made by providing not less than 5 Business Days prior written notice to Agent (or such shorter period as may be acceptable to Agent in its sole discretion), and shall be irrevocable, unless such notice specifies that it is conditional on the consummation of a refinancing or other transaction, in which case such notice shall be

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contingent on the consummation of such refinancing or transaction and may be revoked by Borrower if such refinancing or transaction fails to close.  Once reduced, the Revolver Commitments may not be increased (except in accordance with Section 2.14).  Each such reduction of the Revolver Commitments shall reduce the Revolver Commitments of each Lender proportionately in accordance with its ratable share thereof.

(d)Optional Prepayments.  Borrower may prepay the principal of any Advance at any time in whole or in part, without premium or penalty.

(e)Mandatory Prepayments.

(ei)Overadvances.  If, at any time, (A) the Revolver Usage on such date exceeds (B) the Borrowing Base reflected in the Borrowing Base Certificate most recently delivered by Borrower to Agent, as adjusted for Reserves established by Agent in accordance with Section 2.1(c), then Borrower shall promptly, but in any event, within 1 Business Day (or 3 Business Days in the case of any excess that is caused solely by the implementation of a reserveReserve or the charging of Lender Group Expenses to the Loan Account) (following notice by Agent in the case of any excess that is caused solely by the implementation of a Reserve, any change in eligibility criteria or the charging of Lender Group Expenses to the Loan Account, in each case without notice to Borrower) prepay the Obligations in accordance with Section 2.4(f) in an aggregate amount equal to the amount of such excess.

(ii)Within one Business Day of the date of receipt by Borrower of the proceeds of any Curative Equity pursuant to Section 9.3, Borrower shall prepay the outstanding principal of the Obligations in accordance with Section 2.4(f)(ii) in an amount equal to 100% of such proceeds.

(f)Application of Payments.  Each prepayment pursuant to Section 2.4(e) shall, (A) so long as no Application Event shall have occurred and be continuing, be applied, first, to the outstanding principal amount of the Advances until paid in full, and second, to cash collateralize the Letters of Credit in an amount equal to 105% of the then outstanding Letter of Credit Usage, and (B) if an Application Event shall have occurred and be continuing, be applied in the manner set forth in Section 2.4(b)(ii).

2.5Promise to Pay; Promissory Notes.

(a)Borrower agrees to pay the Lender Group Expenses on the earlier of (i) the first dayBusiness Day of the month following the date on which the applicable Lender Group Expenses were first incurred or (ii)invoiced to Borrower ( so long as such invoice is received by Borrower at least 3 Business Days prior to such date) or (ii) within 3 Business Days after the date on which written demand therefor is made by Agent (it being acknowledged and agreed that any charging of such costs, expenses or Lender Group Expenses to the Loan Account pursuant to the provisions of Section 2.6(d) shall be deemed to constitute a demand for payment thereof for the purposes of this subclause (ii)).  Borrower promises to pay all of the Obligations (including principal, interest, premiums, if any, fees, costs, and expenses (including Lender Group Expenses)) in full on the Maturity Date or, if earlier, on the date on which the Obligations (other than the Bank Product Obligations) become due and payable pursuant to the terms of this Agreement.  Borrower agrees that its obligations contained in the first sentence of this Section 2.5(a) shall survive payment or satisfaction in full of all other Obligations.

(b)Any Lender may request that any portion of its Revolver Commitments or the Advances made by it be evidenced by one or more promissory notes.  In such event, Borrower shall execute and deliver to such Lender the requested promissory notes payable to the order of such Lender in a form furnished by Agent and reasonably satisfactory to Borrower.

2.6Interest Rates and Letter of Credit Fee:  Rates, Payments, and Calculations.

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(a)Interest Rates.  Except as provided in Section 2.6(c), all Obligations (except for undrawn Letters of Credit and except for Bank Product Obligations) that have been charged to the Loan Account pursuant to the terms hereof shall bear interest as follows:

(i)if the relevant Obligation is a LIBOR Rate Loan, at a per annum rate equal to the LIBOR Rate plus the LIBOR Rate Margin, and

(ii)otherwise, at a per annum rate equal to the Base Rate, plus if the relevant Obligation is an Advance, the Base Rate Margin.

(b)Letter of Credit Fee.  Borrower shall pay Agent (for the ratable benefit of the Revolving Lenders), a Letter of Credit fee (the “Letter of Credit Fee”) (which fee shall be in addition to the fronting fees and commissions, other fees, charges and expenses set forth in Section 2.11(k) which) that shall accrue at a per annum rate equal to the LIBOR Rate Margin times the undrawnaverage amount of all outstanding Lettersthe Letter of Credit Usage during the immediately preceding month.

(c)Default Rate.  Upon the occurrence and during the continuation of an Event of Default under Section 8.1, Section 8.4, or Section 8.5, following the election of the Required Lenders,

(i)all Obligations (except for undrawn Letters of Credit and except for Bank Product Obligations) that have been charged to the Loan Account pursuant to the terms hereof shall bear interest at a per annum rate equal to 2 percentage points above the per annum rate otherwise applicable hereunder, and

(ii)the Letter of Credit Fee shall be increased to 2 percentage points above the per annum rate otherwise applicable hereunder.

(d)Payment.  Except to the extent provided to the contrary in Section 2.10, Section 2.11(k) or Section 2.12(a), (i) all interest, all Letter of Credit Fees and all other fees payable hereunder or under any of the other Loan Documents (other than Letter of Credit Fees) shall be due and payable, in arrears, on the first dayBusiness Day of each month, (ii) all Letter of Credit Fees payable hereunder, and all fronting fees and all commissions, other fees, charges and expenses provided for in Section 2.11(k) shall be due and payable, in arrears, on the first Business Day of each month, and (iiiii) all costs and expenses payable hereunder or under any of the other Loan Documents, and all Lender Group Expenses shall be due and payable on the earlier of (x) the first dayBusiness Day of the month following the date on which the applicable costs, expenses, or Lender Group Expenses were first incurred or (y)invoiced to Borrower (so long as such invoice is received by Borrower at least 3 Business Days prior to such date) or (y) within 3 Business Days after the date on which written demand therefor is made by Agent (it being acknowledged and agreed that any charging of such costs, expenses or Lender Group Expenses to the Loan Account pursuant to the provisions of the following sentence shall be deemed to constitute a demand for payment thereof for the purposes of this subclause (y)).  Borrower hereby authorizes Agent, from time to time without prior notice to Borrower, to charge to the Loan Account (to the extent not already paid) (A) on the first dayBusiness Day of each month, all interest accrued during the prior month on the Advances hereunder, (B) on the first dayBusiness Day of each month, all Letter of Credit Fees accrued or chargeable hereunder during the prior month, (C) as and when incurred or accruedon the date that is 3 Business Days after the date on which written notice thereof is delivered to Borrower, all fees and costs provided for in Section 2.10(a), (D) on the first dayBusiness Day of each calendar quarter, (or, if an Event of Default has occurred and is continuing, on the first Business Day of each month), the Unused Line Fee accrued during the prior calendar quarter (or if an Event of Default has occurred and is continuing, month) pursuant to Section 2.10(b), (E) as and when incurred or accrued,on the date that is 3 Business Days after the date on which a written notice is delivered to Borrower, all non-out-of-pocket audit, appraisal, valuation, or other charges or fees payable hereunder pursuant to Section 2.10(c), (F) if Borrower does not pay any such Lender Group Expenses within 3 Business Days of the date of Borrower’s

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receipt of written notice thereof, all out-of-pocket audit, appraisal, valuation, or other charges or fees payable hereunder pursuant to Section 2.10(c), (G) as and when due and payableon the date that is 3 Business Days after the date on which a written notice is delivered to Borrower, all other fees payable hereunder or under any of the other Loan Documents, (H) as and when incurred or accrued, the fronting fees and all other commissions, fees, and charges provided for in Section 2.11(k), (I) if Borrower does not pay any other Lender Group Expenses within 3 Business Days of the date of Borrower’s receipt of written notice thereof, all other Lender Group Expenses, and (J) as and when due and payableI) on the date that is 3 Business Days after the date on which a written notice is delivered to Borrower, all other payment obligations payable under any Loan Document or any Bank Product Agreement (including any amounts due and payable to the Bank Product Providers in respect of Bank Products); provided, that if such amounts are not paid and, instead, are charged to the Loan Account, they shall be charged thereto as of the day on which the item was first due and payable or incurred or accrued without regard to the applicable delay and such amounts shall accrue interest from such original date; provided further, that the applicable delays set forth in the foregoing clauses (F) and (I) shall not be applicable (and Agent shall be entitled to immediately charge to the Loan Account) at any time that an Event of Default has occurred and is continuing.  All amounts (including interest, fees, costs, expenses, Lender Group Expenses, or other amounts payable hereunder or under any other Loan Document or under any Bank Product Agreement) charged to the Loan Account shall constitute Advances hereunder, shall constitute Obligations hereunder, and shall initially accrue interest (beginning on the date such amounts are charged to the Loan Account) at the rate then applicable to Advances that are Base Rate Loans (unless and until converted into LIBOR Rate Loans in accordance with the terms of this Agreement).

(e)Computation.  All interest and fees chargeable under the Loan Documents shall be computed on the basis of a 360 day year, in each case, for the actual number of days elapsed in the period during which the interest or fees accrue, other than interest for Base Rate Loans which shall be calculated on the basis of 365 or 366 day year, as applicable, and actual days elapsed (including the first day but excluding the last day).  In the event the Base Rate is changed from time to time hereafter, the rates of interest hereunder based upon the Base Rate automatically and immediately shall be increased or decreased by an amount equal to such change in the Base Rate.

(f)Intent to Limit Charges to Maximum Lawful Rate.  In no event shall the interest rate or rates payable under this Agreement, plus any other amounts paid in connection herewith, exceed the highest rate permissible under any law that a court of competent jurisdiction shall, in a final determination, deem applicable.  Borrower and the Lender Group, in executing and delivering this Agreement, intend legally to agree upon the rate or rates of interest and manner of payment stated within it; provided, however, that, anything contained herein to the contrary notwithstanding, if such rate or rates of interest or manner of payment exceeds the maximum allowable under applicable law, then, ipso facto, as of the date of this Agreement, Borrower is and shall be liable only for the payment of such maximum amount as is allowed by law, and payment received from Borrower in excess of such legal maximum, whenever received, shall be applied to reduce the principal balance of the Obligations to the extent of such excess.

2.7Crediting Payments.  The receipt of any payment item by Agent shall not be required to be considered a payment on account unless such payment item is a wire transfer of immediately available federal funds made to the Agent’s Account or unless and until such payment item is honored when presented for payment.  Should any payment item not be honored when presented for payment, then Borrower shall be deemed not to have made such payment and interest shall be calculated accordingly.  Anything to the contrary contained herein notwithstanding, for purposes of calculating interest and fees, any payment item shall be deemed received by Agent only if it is received into the Agent’s Account on a Business Day on or before 2:001:30 p.m. (Massachusetts time). If any payment item is received into the Agent’s Account on a non-Business Day or after 2:001:30 p.m. (Massachusetts time) on a Business Day (unless Agent, in its sole discretion, elects to credit it on the date received), it shall be deemed to have been received by Agent as of the opening of business on the immediately following Business Day for purposes of calculating interest and fees.

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2.8Designated Account.  Agent is authorized to make the Advances, and Issuing Lender is authorized to issue the Letters of Credit, under this Agreement based upon telephonic or other instructions received from anyone purporting to be an Authorized Person or, without instructions, if pursuant to Section 2.6(d).  Borrower agrees to establish and maintain the Designated Account with the Designated Account Bank for the purpose of receiving the proceeds of the Advances requested by Borrower and made by Agent or the Lenders hereunder.  Unless otherwise agreed by Agent and Borrower, any Advance or Swing Loan requested by Borrower and made by Agent or the Lenders hereunder shall be made to the Designated Account.

2.9Maintenance of Loan Account; Statements of Obligations.  Agent shall maintain an account on its books in the name of Borrower (the “Loan Account”) on which Borrower will be charged with all Advances (including Extraordinary Advances and Swing Loans) made by Agent, Swing Lender, or the Lenders to Borrower or for Borrower’s account, the Letters of Credit issued or arranged by Issuing Lender for Borrower’s account, and, subject to the delays set forth in clauses (F) and (I) of Section 2.6(d) (if applicable), with all other payment Obligations hereunder or under the other Loan Documents (except for Bank Product Obligations), including, accrued interest, fees and expenses, and Lender Group Expenses.  In accordance with Section 2.7, the Loan Account will be credited with all payments received by Agent from Borrower or for Borrower’s account.  Agent shall rendermake available to Borrower monthly statements regarding the Loan Account to Borrower, including principal, interest, fees, and including anthe principal amount of the Advances, interest accrued hereunder, fees accrued or charged hereunder or under the other Loan Documents, and a summary itemization of all charges and expenses constituting Lender Group Expenses owing, and such statementsaccrued hereunder or under the other Loan Documents, and each such statement, absent manifest error, shall be presumed to be correct and accurate and constitute an account stated between Borrower and the Lender Group unless, within 60 days after receipt thereof byAgent first makes such a statement available to Borrower, Borrower shall deliver to Agent written objection thereto describing the error or errors contained in any such statementsstatement.

2.10Fees.

(a)Agent Fees.  Borrower shall pay to Agent, for the account of Agent, as and when due and payable under the terms of the Fee Letter, the fees set forth in the Fee Letter.

(b)Unused Line Fee.  Borrower shall pay to Agent, for the ratable account of the Revolving Lenders, an unused line fee (the “Unused Line Fee”) in an amount equal to 0.375%the Applicable Unused Line Fee Percentage per annum times the result of (i) the aggregate amount of the Revolver Commitments, less (ii) the average amount of theAverage Revolver Usage during the immediately preceding calendar quarter (or portion thereof), which Unused Line Fee shall be due and payable, in arrears, on the first dayBusiness Day of each calendar quarter from and after the Original Closing Date and on the date on which the Obligations are paid in full;(provided, that if an Event of Default has occurred and is continuing, such Unused Line Fee shall be due and payable, in arrears, on the first day of each month.Business Day of each calendar month) from and after the Amendment Effective Date up to the first day of the calendar quarter (or, if an Event of Default has occurred and is continuing, the first day of the calendar month) prior to the date on which the Obligations are paid in full, and on the date on which the Obligations are paid in full.

(c)Audit, Appraisal, andField Examination and Other Fees.  Borrower shall pay to Agent auditfield examination, appraisal, and valuation fees and charges, as and when incurred or chargeable, as follows: (i) a fee of $1,000 per day, per auditorexaminer, plus reasonable and documented out-of-pocket expenses, (including travel, meals, and lodging) for each financial auditfield examination of the Loan Parties performed by personnel employed by Agent and (ii) the reasonable and documented fees, charges or expenses paid or incurred by Agent if it elects to employ the services of one or more third personsPersons to perform financial audits or quality of earnings analyses of Borrower or its Restricted Subsidiariesfield examinations of the Loan Parties, to appraise the Collateral (or any portion thereof), or to assess Borrower’sany Loan Party’s or its Restricted Subsidiaries’ business valuation; provided, that so long as no Event of Default shall have occurred and be continuing at the time of any such field examination or inventory appraisal, Borrower shall not

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be obligated to reimburse Agent for more than 2 audits during any calendar year or more than 1 appraisals of Inventory during any calendar year.1 field examination in such calendar year (increasing to 2 field examinations if an Increased Audit Event has occurred during such calendar year) and 1 inventory appraisal in such calendar year (increasing to 2 inventory appraisals if an Increased Audit Event has occurred during such calendar year), in each case, except for field examinations and appraisals conducted in connection with a proposed Permitted Acquisition (whether or not consummated).

2.11Letters of Credit.

(a)Subject to the terms and conditions of this Agreement, and prior to the Maturity Date, upon the request of Borrower made in accordance herewith, Issuing Lender agrees to issue, or to cause an Underlying Issuer (including as Issuing Lender’s agent) to issue, a requested Letter of Credit for the account of Borrower, which Letter of Credit may be issued for the benefit of any Loan Party.  If Issuing Lender, at its option, elects to cause an Underlying Issuer to issue a requested Letter of Credit, then Issuing Lender agrees that it will enter into arrangements relative to the reimbursement of such Underlying Issuer (which may include, among other means, by becoming an applicant with respect to such Letter of Credit or entering into undertakings or other arrangements that provide for reimbursement of such Underlying Issuer with respect to drawings under Letters of Credit; each such obligation or undertaking, irrespective of whether in writing, a “Reimbursement Undertaking”) with respect to Letters of Credit issued by such Underlying Issuer for the account of Borrower.  By submitting a request to Issuing Lender for the issuance of a Letter of Credit, Borrower shall be deemed to have requested that (i) Issuing Lender issue or (ii) an Underlying Issuer issue the requested Letter of Credit (and, in each such case, to have requested Issuing Lender to issue a Reimbursement Undertaking with respect to such requested Letter of Credit).  Borrower acknowledges and agrees that Borrower is and shall be deemed to be an applicant (within the meaning of Section 5-102(a)(2) of the Code) with respect to each Underlying Letter of Credit.  Each request for the issuance of a Letter of Credit, or the amendment, renewal, or extension of any outstanding Letter of Credit, shall be (i) irrevocable and shall be made in writing by an Authorized Person and, (ii) delivered to Issuing Lender via telefacsimile or other electronic method of transmission reasonably acceptable to Issuing Lender and reasonably in advance of the requested date of issuance, amendment, renewal, or extension, and (iii) subject to Issuing Lender’s authentication procedures with results satisfactory to Issuing Lender.  Each such request shall be in form and substance reasonably satisfactory to the Issuing Lender in its Permitted Discretion and (i) shall specify (A) the amount of such Letter of Credit, (B) the date of issuance, amendment, renewal, or extension of such Letter of Credit, (C) the proposed expiration date of such Letter of Credit, (D) the name and address of the beneficiary of the Letter of Credit, and (E) such other information (including the conditions to drawing and, in the case of an amendment, renewal, or extension, identification of the Letter of Credit to be so amended, renewed, or extended) as shall be necessary to prepare, amend, renew, or extend such Letter of Credit and (ii) shall be accompanied by such Issuer Documents as Agent, Issuing Lender or Underlying Issuer, as applicable, may request or require, providedto the extent that such requests or requirements are consistent with the Issuer Documents that Issuing Lender or Underlying Issuer, as applicable, generally requests for Letters of Credit in similar circumstances.  Issuing Lender’s records of the content of any such request will be conclusive.  Anything contained herein to the contrary notwithstanding, the Issuing Lender may, but shall not be obligated to, issue or cause the issuance of a Letter of Credit or to issue a Reimbursement Undertaking in respect of an Underlying Letter of Credit, in either case, that supports the obligations of Borrower ora Loan Party or one of its Subsidiaries in respect of (x) a lease of real property to the extent that the face amount of such Letter of Credit exceeds the highest rent (including all rent-like charges) payable under such lease for a period of one year, or (y) an employment contract to the extent that the face amount of such Letter of Credit exceeds the highest compensation payable under such contract for a period of one year.  Borrower agrees that this Agreement (along with the terms of the applicable application) will govern each Letter of Credit and its issuance.

(b)Issuing Lender shall have no obligation to issue a Letter of Credit or a Reimbursement Undertaking in respect of an Underlying Letter of Credit, in either case, if any of the following would result after giving effect to the requested issuance:

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(i)the Letter of Credit Usage would exceed the Borrowing Base at such time less the outstanding amount ofprincipal balance of the Advances (inclusive of Swing Loans), or

(ii)the Letter of Credit Usage would exceed $30,000,000the Letter of Credit Sublimit, or

(iii)the Letter of Credit Usage would exceed the Maximum Revolver Amount less the outstanding amount ofprincipal balance of the Advances (inclusive of Swing Loans).

(c)In the event there is a Defaulting Lender as of the date of any request for the issuance of a Letter of Credit, Issuing Lender shall not be required to issue or arrange for such Letter of Credit to the extent (x) the Defaulting Lender’s Letter of Credit Exposure with respect to such Letter of Credit may not be reallocated pursuant to Section 2.3(g)(ii) or (y) Issuing Lender has not otherwise entered into arrangements reasonably satisfactory to it and Borrower to eliminate Issuing Lender’s risk with respect to the participation in such Letter of Credit of such Defaulting Lender (after giving effect to any reallocation pursuant to Section 2.3(g)(ii), which arrangements may include Borrower cash collateralizing such Defaulting Lender’s Letter of Credit Exposure in accordance with Section 2.3(g)(ii).  Additionally, Issuing Lender shall have no obligation to issue a Letter of Credit or a Reimbursement Undertaking in respect of an Underlying Letter of Credit, in either case, (I) if any order, judgment, or decree of any Governmental Authority or arbitrator shall, by its terms, purport to enjoin or restrain Issuing Lender from issuing such Letter of Credit or Reimbursement Undertaking or Underlying Issuer from issuing such Letter of Credit, or any law applicable to Issuing Lender or Underlying Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over Issuing Lender or Underlying Issuer shall prohibit or request that Issuing Lender or Underlying Issuer refrain from the issuance of letters of credit generally or such Letter of Credit or Reimbursement Undertaking (as applicable) in particular, (II) if the issuance of such Letter of Credit would violate one or more policies of Issuing Lender or Underlying Issuer applicable to letters of credit generally, or (III) in a currency other than Dollars.

(d)Any Issuing Lender (other than Wells Fargo or any of its Affiliates) shall notify Agent in writing no later than the Business Day immediately following the Business Day on which such Issuing Lender issued any Letter of Credit; provided that (y) until Agent advises any such Issuing Lender that the provisions of Section 3.2 are not satisfied, or (z) unless the aggregate amount of the Letters of Credit issued in any such week exceeds such amount as shall be agreed by Agent and such Issuing Lender, such Issuing Lender shall be required to so notify Agent in writing only once each week of the Letters of Credit issued by such Issuing Lender during the immediately preceding week as well as the daily amounts outstanding for the prior week, such notice to be furnished on such day of the week as Agent and such Issuing Lender may agree.  Borrower and the Lender Group hereby acknowledge and agree that all Existing Letters of Credit shall constitute Letters of Credit under this Agreement on and after the Closing Date with the same effect as if such Existing Letters of Credit were issued by Issuing Lender or an Underlying Issuer at the request of Borrowers on the Closing Date.  Each Letter of Credit shall be in form and substance reasonably acceptable to Issuing Lender, and all amounts payable thereunder must be payable in Dollars.  If Issuing Lender makes a payment under a Letter of Credit or an Underlying Issuer makes a payment under an Underlying Letter of Credit, Borrower shall pay to Agent an amount equal to the applicable Letter of Credit Disbursement on the Business Day such Letter of Credit Disbursement is made and, in the absence of such payment, the amount of the Letter of Credit Disbursement immediately and automatically shall be deemed to be an Advance hereunder (notwithstanding any failure to satisfy any condition precedent set forth in Section 3) and, initially, shall bear interest at the rate then applicable to Advances that are Base Rate Loans (unless and until converted into LIBOR Rate Loans in accordance with the terms of this Agreement). If a Letter of Credit Disbursement is deemed to be an Advance hereunder, Borrower’s obligation to pay the amount of such Letter of Credit Disbursement to Issuing Lender shall be automatically converted into an obligation to pay the resulting Advance.  Promptly following receipt by Agent of any payment from Borrower pursuant to this paragraph, Agent shall distribute such payment to Issuing Lender or, to the extent that Revolving Lenders have made

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payments pursuant to Section 2.11(e) to reimburse Issuing Lender, then to such Revolving Lenders and Issuing Lender as their interests may appear.

(e)Promptly following receipt of a notice of a Letter of Credit Disbursement pursuant to Section 2.11(d), each Revolving Lender agrees to fund its Pro Rata Share of any Advance deemed made pursuant to Section 2.11(d) on the same terms and conditions as if Borrower had requested the amount thereof as an Advance and Agent shall promptly pay to Issuing Lender the amounts so received by it from the Revolving Lenders.  By the issuance of a Letter of Credit or a Reimbursement Undertaking (or an amendment, renewal or extension of a Letter of Credit or a Reimbursement Undertaking) and without any further action on the part of the Issuing Lender or the Revolving Lenders, the Issuing Lender shall be deemed to have granted to each Revolving Lender, and each Revolving Lender shall be deemed to have purchased, a participation in each Letter of Credit issued by Issuing Lender and each Reimbursement Undertaking, in an amount equal to its Pro Rata Share of such Letter of Credit or Reimbursement Undertaking, and each such Revolving Lender agrees to pay to Agent, for the account of the Issuing Lender, such Revolving Lender’s Pro Rata Share of any Letter of Credit Disbursement made by Issuing Lender or an Underlying Issuer under the applicable Letter of Credit.  In consideration and in furtherance of the foregoing, each Revolving Lender hereby absolutely and unconditionally agrees to pay to Agent, for the account of the Issuing Lender, such Lender’s Pro Rata Share of each Letter of Credit Disbursement made by Issuing Lender or an Underlying Issuer and not reimbursed by Borrower on the date due as provided in Section 2.11(d), or of any reimbursement payment required to be refunded (or that Agent or Issuing Lender elects, based upon the advice of counsel, to refund) to Borrower for any reason.  Each Revolving Lender acknowledges and agrees that its obligation to deliver to Agent, for the account of the Issuing Lender, an amount equal to its respective Pro Rata Share of each Letter of Credit Disbursement pursuant to this Section 2.11(e) shall be absolute and unconditional and such remittance shall be made notwithstanding the occurrence or continuation of an Event of Default or Default or the failure to satisfy any condition set forth in Section 3.  If any such Revolving Lender fails to make available to Agent the amount of such Revolving Lender’s Pro Rata Share of a Letter of Credit Disbursement as provided in this Section, such Revolving Lender shall be deemed to be a Defaulting Lender and Agent (for the account of the Issuing Lender) shall be entitled to recover such amount on demand from such Revolving Lender together with interest thereon at the Defaulting Lender Rate until paid in full.

(f)Borrower agrees to indemnify, defend and hold harmless each member of the Lender Group (including Issuing Lender and each Underlying Issuer and their respective branches, Affiliates, and correspondents) and each such Person’s respective directors, officers, employees, attorneys and agents (each, including Issuing Lender and each Underlying Issuer, a “Letter of Credit Related Person”) (to the fullest extent permitted by law) from and against any and all claims, demands, suits, actions, investigations, proceedings, liabilities, fines, costs, penalties, and damages, and all reasonable and documented fees and disbursements of attorneys, experts, or consultants and all other costs and expenses actually incurred in connection therewith or in connection with the enforcement of this indemnification (as and when they are incurred and irrespective of whether suit is brought), which may be incurred by or awarded against any Letter of Credit Related Person (other than Taxes, which shall be governed by Section 16) (the “Letter of Credit Indemnified Costs”), and which arise out of or in connection with, or as a result of this Agreement, any Letter of Credit, any Reimbursement Undertaking, any Issuer Document or any Drawing Document referred to in or related to any Letter of Credit, or any action or proceeding arising out of any of the foregoing (whether administrative, judicial or in connection with arbitration); in each case, including that resulting from the Letter of Credit Related Person’s own negligence; provided, that such indemnity shall not be available to any Letter of Credit Related Person claiming indemnification to the extent that such Letter of Credit Indemnified Costs may be finally determined in a final, non-appealable judgment of a court of competent jurisdiction to have resulted directly from the gross negligence or willful misconduct of, or a material breach of this Agreement by, the Letter of Credit Related Person claiming indemnity.  This indemnification provision shall survive termination of this Agreement and all Letters of Credit.

(g)The liability of Issuing Lender or any Underlying Issuer (or any other Letter of Credit Related Person) under, in connection with or arising out of any Letter of Credit or any Reimbursement

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Undertaking (or pre-advice), regardless of the form or legal grounds of the action or proceeding, shall be limited to direct damages suffered by Borrower that are caused directly by Issuing Lender’s or any Underlying Issuer’s gross negligence or willful misconduct in (i) honoring a presentation under a Letter of Credit that on its face does not at least substantially comply with the terms and conditions of such Letter of Credit, (ii) failing to honor a presentation under a Letter of Credit that strictly complies with the terms and conditions of such Letter of Credit or (iii) retaining Drawing Documents presented under a Letter of Credit.  Issuing Lender and each Underlying Issuer shall be deemed to have acted with due diligence and reasonable care if Issuing Lender or such Underlying Issuer’s (as the case may be) conduct is in accordance with Standard Letter of Credit Practice or in accordance with this Agreement.  Borrower’s aggregate remedies against Issuing Lender and any other Letter of Credit Related Person for wrongfully honoring a presentation under any Letter of Credit or wrongfully retaining honored Drawing Documents shall in no event exceed the aggregate amount paid by Borrower to Issuing Lender in respect of the honored presentation in connection with such Letter of Credit under Section 2.11(d), plus interest at the rate then applicable to Base Rate Loans hereunder.  Borrower shall take commercially reasonable action to avoid and mitigate the amount of any damages claimed against Issuing Lender or any other Letter of Credit Related Person, including by enforcing its rights against the beneficiaries of the Letters of Credit. Any claim by Borrower under or in connection with any Letter of Credit shall be reduced by an amount equal to the sum of (x) the amount (if any) saved by Borrower as a result of the breach or alleged wrongful conduct complained of; and (y) the amount (if any) of the loss that would have been avoided had Borrower taken all commercially reasonable steps to mitigate any loss, and in case of a claim of wrongful dishonor, by specifically and timely authorizing Issuing Lender to effect a cure.

(h)Borrower is responsible for preparing or approving the final text of the Letter of Credit as issued by Issuing Lender or Underlying Issuer, irrespective of any assistance Issuing Lender or such Underlying Issuer may provide such as drafting or recommending text or by Issuing Lender’s or such Underlying Issuer’s use or refusal to use text submitted by Borrower.  Borrower is solely responsible for the suitability of the Letter of Credit for Borrower’s purposes.  With respect to any Letter of Credit containing an “automatic amendment” to extend the expiration date of such Letter of Credit, Issuing Lender (or an Underlying Issuer), in its sole and absolute discretion, may give notice of nonrenewal of such Letter of Credit and, if Borrower does not at any time want such Letter of Credit to be renewed, Borrower will so notify Agent and Issuing Lender at least 15 calendar days before Issuing Lender (or an Underlying Issuer) is required to notify the beneficiary of such Letter of Credit or any advising bank of such nonrenewal pursuant to the terms of such Letter of Credit.

(i)Borrower’s reimbursement and payment obligations under this Section 2.11 are absolute, unconditional and irrevocable and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever, provided, that subject to Section 2.11(g) above, the foregoing shall not release Issuing Lender from such liability to Borrower as may be finally determined in a final, non-appealable judgment of a court of competent jurisdiction against Issuing Lender following reimbursement or payment of the obligations and liabilities, including reimbursement and other payment obligations, of Borrower to Issuing Lender arising under, or in connection with, this Section 2.11 or any Letter of Credit.

(j)Without limiting any other provision of this Agreement, Issuing Lender, each Underlying Issuer and each other Letter of Credit Related Person (if applicable) shall not be responsible to Borrower for, and Issuing Lender’s rights and remedies against Borrower and the obligation of Borrower to reimburse Issuing Lender for each drawing under each Letter of Credit shall not be impaired by:

(i)honor of a presentation under any Letter of Credit that on its face substantially complies with the terms and conditions of such Letter of Credit, even if the Letter of Credit requires strict compliance by the beneficiary;

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(ii)honor of a presentation of any Drawing Document that appears on its face to have been signed, presented or issued (A) by any purported successor or transferee of any beneficiary or other Person required to sign, present or issue such Drawing Document or (B) under a new name of the beneficiary;

(iii)acceptance as a draft of any written or electronic demand or request for payment under a Letter of Credit, even if nonnegotiable or not in the form of a draft or notwithstanding any requirement that such draft, demand or request bear any or adequate reference to the Letter of Credit;

(iv)the identity or authority of any presenter or signer of any Drawing Document or the form, accuracy, genuineness or legal effect of any Drawing Document (other than Issuing Lender’s or any Underlying Issuer’s determination that such Drawing Document appears on its face substantially to comply with the terms and conditions of the Letter of Credit);

(v)acting upon any instruction or request relative to a Letter of Credit or requested Letter of Credit that Issuing Lender or any Underlying Issuer in good faith believes to have been given by a Person authorized to give such instruction or request;

(vi)any errors, omissions, interruptions or delays in transmission or delivery of any message, advice or document (regardless of how sent or transmitted) or for errors in interpretation of technical terms or in translation or any delay in giving or failing to give notice to Borrower;

(vii)any acts, omissions or fraud by, or the insolvency of, any beneficiary, any nominated person or entity or any other Person or any breach of contract between the beneficiary and Borrower or any of the parties to the underlying transaction to which the Letter of Credit relates;

(viii)assertion or waiver of any provision of the ISP or UCP that primarily benefits an issuer of a letter of credit, including any requirement that any Drawing Document be presented to it at a particular hour or place;

(ix)payment to any paying or negotiating bank (designated or permitted by the terms of the applicable Letter of Credit) claiming that it rightfully honored or is entitled to reimbursement or indemnity under Standard Letter of Credit Practice applicable to it;

(x)acting or failing to act as required or permitted under Standard Letter of Credit Practice applicable to where Issuing Lender or any Underlying Issuer has issued, confirmed, advised or negotiated such Letter of Credit, as the case may be;

(xi)honor of a presentation after the expiration date of any Letter of Credit notwithstanding that a presentation was made prior to such expiration date and dishonored by Issuing Lender or any Underlying Issuer if subsequently Issuing Lender or such Underlying Issuer or any court or other finder of fact determines such presentation should have been honored;

(xii)dishonor of any presentation that does not strictly comply or that is fraudulent, forged or otherwise not entitled to honor; or

(xiii)honor of a presentation that is subsequently determined by Issuing Lender or any Underlying Issuer to have been made in violation of international, federal, state or local restrictions on the transaction of business with certain prohibited Persons.

(k)Borrower shall pay immediatelypromptly upon demand to Agent for the account of Issuing Lender as non-refundable fees, commissions, and charges (it being acknowledged and agreed that any charging of such fees, commissions and charges to the Loan Account pursuant to the provisions of Section

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2.6(d) shall be deemed to constitute a demand for payment thereof for the purposes of this Section 2.11(k)):  (i) a fronting fee, which shall be imposed by Issuing Lender upon the issuance of each Letter of Credit or Underlying Letter of Credit, of .125% per annum oftimes the face amount thereof, plus (ii) any and all other customary commissions, fees and charges then in effect imposed by, and any and all expenses incurred by, Issuing Lender, or by any adviser, confirming institution or entity or other nominated person, relating to Letters of Credit or Underlying Letters of Credit, at the time of issuance of any Letter of Credit or Underlying Letter of Credit and upon the occurrence of any other activity with respect to any Letter of Credit or Underlying Letter of Credit (including transfers, assignments of proceeds, amendments, drawings, renewals or cancellations).

(l)If by reason of (i) any Change in Law or (ii) compliance by the Issuing Lender, any other member of the Lender Group, or Underlying Issuer with any direction, request, or requirement (irrespective of whether having the force of law) of any Governmental Authority or monetary authority including, Regulation D of the Board of Governors as from time to time in effect (and any successor thereto):

(i)any reserve, deposit, or similar requirement is or shall be imposed or modified in respect of any Letter of Credit issued or caused to be issued hereunder or hereby, or any Advances or obligations to make Advances hereunder, or

(ii)there shall be imposed on the Issuing Lender, any other member of the Lender Group, or Underlying Issuer any other condition regarding any Letter of Credit or, Reimbursement Undertaking, Advance, or obligation to make Advances hereunder,

and the result of the foregoing is to increase, directly or indirectly, the cost to the Issuing Lender, any other member of the Lender Group, or an Underlying Issuer of issuing, making, participating in, or maintaining any Reimbursement Undertaking or Letter of Credit or to reduce the amount receivable in respect thereof, then, and in any such case, Agent may, at any time within a reasonable period after the additional cost is incurred or the amount received is reduced, notify Borrower, and Borrower shall pay within 30 days after written demand therefor, such amounts as Agent may specify to be necessary to compensate the Issuing Lender, any other member of the Lender Group, or an Underlying Issuer for such additional cost or reduced receipt, together with interest on such amount from the date of such demand until payment in full thereof at the rate then applicable to Base Rate Loans hereunder; provided, that Borrower shall not be required to provide any compensation pursuant to this Section 2.11(l) for any such amounts incurred more than 180 days prior to the date on which the demand for payment of such amounts is first made to Borrower; provided further, that if an event or circumstance giving rise to such amounts is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof.  The determination by Agent of any amount due pursuant to this Section 2.11(l), as set forth in a certificate setting forth the calculation thereof in reasonable detail, shall, in the absence of manifest or demonstrable error, be final and conclusive and binding on all of the parties hereto. For the avoidance of doubt, this Section 2.11(l) shall not apply to Taxes, which shall be governed by Section 16.

(m)Borrower hereby authorizes and directs any Underlying Issuer to deliver to the Issuing Lender all instruments, documents, and other writings and property received by such Underlying Issuer pursuant to such Underlying Letter of Credit and to accept and rely upon the Issuing Lender’s instructions with respect to all matters arising in connection with such Underlying Letter of Credit and the related application.

(n)Unless otherwise expressly agreed by Issuing Lender and Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of the ISP and the UCP shall apply to each standby Letter of Credit, and (ii) the rules of the UCP shall apply to each commercial Letter of Credit.

(o)In the event of a direct conflict between the provisions of this Section 2.11 and any provision contained in any Issuer Document, it is the intention of the parties hereto that such provisions be

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read together and construed, to the fullest extent possible, to be in concert with each other.  In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.11 shall control and govern.

2.12LIBOR Option.

(a)Interest and Interest Payment Dates.  In lieu of having interest charged at the rate based upon the Base Rate, Borrower shall have the option (the “LIBOR Option”) to have interest on all or a portion of the Advances be charged (whether at the time when made (unless otherwise provided herein), upon conversion from a Base Rate Loan to a LIBOR Rate Loan, or upon continuation of a LIBOR Rate Loan as a LIBOR Rate Loan) at a rate of interest based upon the LIBOR Rate.  Interest on LIBOR Rate Loans shall be payable on the earliest of (i) the last day of the Interest Period applicable thereto; provided, that, subject to the following clauses (ii) and (iii), in the case of any Interest Period greater than 3 months in duration, interest shall be payable at 3 month intervals after the commencement of the applicable Interest Period and on the last day of such Interest Period); (ii) the date on which all or any portion of the Obligations are accelerated pursuant to the terms hereof, or (iii) the date on which this Agreement is terminated pursuant to the terms hereof.  On the last day of each applicable Interest Period, unless Borrower properly has exercised the LIBOR Option with respect thereto, the interest rate applicable to such LIBOR Rate Loan automatically shall convert to the rate of interest then applicable to Base Rate Loans of the same type hereunder.  At any time that an Event of Default has occurred and is continuing at the election of the Required Lenders, Borrower no longer shall have the option to request that Advances bear interest at a rate based upon the LIBOR Rate.

(b)LIBOR Election.

(i)Borrower may, at any time and from time to time, so long as Borrower has not received a notice from Agent (which notice Agent may elect to give or not give in its discretion unless Agent is directed to give such notice by the Required Lenders, in which case, it shall give the notice to Borrower), after the occurrence and during the continuance of an Event of Default, to terminate the right of Borrower to exercise the LIBOR Option during the continuance of such Event of Default, elect to exercise the LIBOR Option by notifying Agent prior to 2:00 p11:00 a.m. (Massachusetts time) at least 3 Business Days prior to the commencement of the proposed Interest Period (the “LIBOR Deadline”).  Notice of Borrower’s election of the LIBOR Option for a permitted portion of the Advances and an Interest Period pursuant to this Section shall be made by delivery to Agent of a LIBOR Notice received by Agent before the LIBOR Deadline, or by telephonic notice received by Agent before the LIBOR Deadline (to be confirmed by delivery to Agent of a LIBOR Notice received by Agent prior to 5:002:00 p.m. (Massachusetts time) on the same day).  Promptly upon its receipt of each such LIBOR Notice, Agent shall provide a copy thereof to each of the affected Lenders.

(ii)Each LIBOR Notice shall be irrevocable and binding on Borrower.  In connection with each LIBOR Rate Loan, Borrower shall indemnify, defend, and hold Agent and the Lenders harmless against any loss, cost, or expense actually incurred by Agent or any Lender as a result of (A) the payment or required assignment of any principal of any LIBOR Rate Loan other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default), (B) the conversion of any LIBOR Rate Loan other than on the last day of the Interest Period applicable thereto, or (C) the failure to borrow, convert, continue or prepay any LIBOR Rate Loan on the date specified in any LIBOR Notice delivered pursuant hereto (such losses, costs, or expenses, “Funding Losses”).  A certificate of Agent or a Lender delivered to Borrower setting forth in reasonable detail any amount or amounts that Agent or such Lender is entitled to receive pursuant to this Section 2.12 shall be conclusive absent manifest error.  Borrower shall pay such amount to Agent or the Lender, as applicable, within 30 days of the date of its receipt of such certificate.  If a payment of a LIBOR Rate Loan on a day other than the last day of the applicable Interest Period would result in a Funding Loss, Agent may, in its sole discretion at the request of Borrower, hold the amount of such payment as cash collateral in support of the Obligations until the last day of such Interest Period and apply such amounts to the payment of the applicable LIBOR Rate Loan on such last day, it being

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agreed that Agent has no obligation to so defer the application of payments to any LIBOR Rate Loan and that, in the event that Agent does not defer such application, Borrower shall be obligated to pay any resulting Funding Losses.  For the avoidance of doubt, Borrower shall have no liability for Funding Losses that may arise by virtue of any Base Rate Loan accruing interest at the one month LIBOR Rate pursuant to clause (c) of the definition of “Base Rate”.

(iii)Unless Agent, in its sole discretion, agrees otherwise, Borrower shall have not more than 8 LIBOR Rate Loans in effect at any given time.  Borrower may only may exercise the LIBOR Option for proposed LIBOR Rate Loans of at least $1,000,000.

(c)Conversion.  Borrower may convert LIBOR Rate Loans to Base Rate Loans at any time or prepay LIBOR Rate Loans; provided, that in the event that LIBOR Rate Loans are converted or prepaid on any date that is not the last day of the Interest Period applicable thereto, including as a result of any prepayment through the required application by Agent of any payments or proceeds of Collateral in accordance with Section 2.4(b) or for any other reason, including early termination of the term of this Agreement or acceleration of all or any portion of the Obligations pursuant to the terms hereof, Borrower shall indemnify, defend, and hold Agent and the Lenders and their Participants harmless against any and all Funding Losses in accordance with Section 2.12 (b)(ii).

(d)Special Provisions Applicable to LIBOR Rate.

(i)The LIBOR Rate may be adjusted by Agent with respect to any Lender on a prospective basis to take into account any additional or increased costs to such Lender of maintaining or obtaining any eurodollar deposits or increased costs, in each case, due to changes in applicable law occurring subsequent to the commencement of the then applicable Interest Period, including any Changes in Law (including any changes in tax laws (except changes of general applicability in corporate income tax laws)) and changes in the reserve requirements imposed by the Board of Governors after the date hereof (or, in the case of a Lender that initially becomes a Lender by way of assignment, the date of such initial assignment), which additional or increased costs would increase the cost of funding or maintaining loans bearing interest at the LIBOR Rate.  In any such event, the affected Lender shall give Borrower and Agent notice of such a determination and adjustment and Agent promptly shall transmit the notice to each other Lender and, upon its receipt of the notice from the affected Lender, Borrower may, by notice to such affected Lender (y) require such Lender to furnish to Borrower a statement setting forth in reasonable detail the basis for adjusting such LIBOR Rate and the method for determining the amount of such adjustment, or (z) repay the LIBOR Rate Loans of such Lender with respect to which such adjustment is made (together with any amounts due under Section 2.12(b)(ii)) on a non-pro rata basis with subsequent Loans made by such Lender being made as Base Rate Loans until such time as such circumstances cease to be applicable.  Notwithstanding the foregoing, Borrower shall not be required to compensate any Lender pursuant to this Section 2.12 for such additional or increased costs incurred more than 180 days prior to the date that such Lender delivers such certificate; provided that if the change in applicable law giving rise to such additional or increased costs is retroactive, then the 180 day period referred to above shall be extended to include the period of retroactive effect thereof.

(ii)In the event that any change in market conditions or any Change in Law shall at any time after the date hereof (or in the case of a Lender that becomes a Lender by way of assignment, the date of such assignment), in the reasonable opinion of any Lender, makes it unlawful or impractical for such Lender to fund or maintain LIBOR Rate Loans or to continue such funding or maintaining, or to determine or charge interest rates at the LIBOR Rate, such Lender shall give notice of such changed circumstances to Agent and Borrower, and Agent promptly shall transmit the notice to each other Lender and (y) in the case of any LIBOR Rate Loans of such affected Lender that are outstanding, the date specified in such affected Lender’s notice shall be deemed to be the last day of the Interest Period of such affected Lender’s LIBOR Rate Loans, and interest upon the LIBOR Rate Loans of such affected Lender thereafter shall accrue interest at the rate then applicable to Base Rate Loans, and (z) Borrower shall not be entitled to elect the

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LIBOR Option with respect to such affected Lender’s LoansAdvances until such Lender determines that it would no longer be unlawful or impractical to do so.

(iii)For the avoidance of doubt, this Section 2.12(d) shall not apply to Taxes, which shall be governed by Section 16.

(e)No Requirement of Matched Funding.  Anything to the contrary contained herein notwithstanding, neither Agent, nor any Lender, nor any of their Participants, is required actually to acquire eurodollar deposits to fund or otherwise match fund any Obligation as to which interest accrues at the LIBOR Rate.

2.13Capital Requirements.

(a)If, after the date hereof (or, in the case of a Lender that after the date hereof becomes a Lender by way of assignment, after the date of such assignment if the assigning Lender has not already become entitled to make a request under this Section), Issuing Lender or any Lender determines that (i) any Change in Law regarding capital, liquidity or reserve requirements for banks or bank holding companies, or (ii) compliance by Issuing Lender or such Lender or their respective parent bank holding companies with any guideline, request or directive of any Governmental Authority regarding capital adequacy or liquidity requirements (whether or not having the force of law) changed or imposed after the date hereof (or, in the case of a Lender that after the date hereof becomes a Lender by way of assignment, after the date of such assignment if the assigning Lender has not already become entitled to make a request under this Section), has the effect of reducing the return on Issuing Lender’s, such Lender’s or such holding companies’ capital or liquidity as a consequence of Issuing Lender’s or such Lender’s commitments, loans, participations or other obligations hereunder to a level below that which Issuing Lender, such Lender or such holding companies could have achieved but for such Change in Law or compliance (taking into consideration Issuing Lender’s, such Lender’s or such holding companies’ then existing policies with respect to capital adequacy or liquidity requirements and assuming the full utilization of such entity’s capital) by any amount reasonably deemed by Issuing Lender or such Lender to be material, then Issuing Lender or such Lender may notify Borrower and Agent thereof.  Following receipt of such notice, Borrower agrees to pay Issuing Lender or such Lender on demand the amount of such reduction of return of capital as and when such reduction is determined, payable within 30 days after presentation by Issuing Lender or such Lender of a statement in the amount and setting forth in reasonable detail Issuing Lender’s or such Lender’s calculation thereof and the assumptions upon which such calculation was based (which statement shall be deemed true and correct absent manifest error).  In determining such amount, Issuing Lender or such Lender may use any reasonable averaging and attribution methods.  Failure or delay on the part of Issuing Lender or any Lender to demand compensation pursuant to this Section shall not constitute a waiver of Issuing Lender’s or such Lender’s right to demand such compensation; provided that Borrower shall not be required to compensate Issuing Lender or any Lender pursuant to this Section for any reductions in return incurred more than 180 days prior to the date that Issuing Lender or such Lender notifies Borrower of such Change in Law giving rise to such reductions and of Issuing Lender’s or such Lender’s intention to claim compensation therefor; provided further that if such claim arises by reason of a Change in Law that is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof.

(b)If Issuing Lender or any Lender requests additional or increased costs referred to in Section 2.11(l) or Section 2.12(d)(i) or amounts under Section 2.13(a) or sends a notice under Section 2.12(d)(ii) relative to changed circumstances (such Issuing Lender or Lender, an “Affected Lender”), then, if requested to do so by Borrower, such Affected Lender shall use reasonable efforts to promptly designate a different one of its lending offices or to assign its rights and obligations hereunder to another of its offices or branches, if (i) in the reasonable judgment of such Affected Lender, such designation or assignment would eliminate or reduce amounts payable pursuant to Section 2.11(l), Section 2.12(d)(i) or Section 2.13(a), as applicable, or would eliminate the illegality or impracticality of funding or maintaining LIBOR Rate Loans and (ii) in the reasonable judgment of such Affected Lender, such designation or assignment would not subject

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it to any material unreimbursed cost or expense and would not otherwise be materially disadvantageous to it.  If Borrower requests an Affected Lender to undertake such efforts, Borrower agrees to pay all reasonable out-of-pocket costs and expenses incurred by such Affected Lender in connection with any such designation or assignment.  If, after such reasonable efforts, such Affected Lender does not so designate a different one of its lending offices or assign its rights to another of its offices or branches so as to eliminate Borrower’s obligation to pay any future amounts to such Affected Lender pursuant to Section 2.11(l), Section 2.12(d)(i) or Section 2.13(a), as applicable, or to enable Borrower to obtain LIBOR Rate Loans, then Borrower (without prejudice to any amounts then due to such Affected Lender under Section 2.11(l), Section 2.12(d)(i) or Section 2.13(a), as applicable) may, unless prior to the effective date of any such assignment the Affected Lender withdraws its request for such additional amounts under Section 2.11(l), Section 2.12(d)(i) or Section 2.13(a), as applicable, or indicates that it is no longer unlawful or impractical to fund or maintain LIBOR Rate Loans, may designate a different Issuing Lender or substitute a Lender or prospective Lender, in each case, reasonably acceptable to Agent to purchase the Obligations owed to such Affected Lender and such Affected Lender’s commitments hereunder (a “Replacement Lender”), and if such Replacement Lender agrees to such purchase, such Affected Lender shall assign to the Replacement Lender its Obligations and commitments, and upon such purchase by the Replacement Lender, which such Replacement Lender shall be deemed to be “Issuing Lender” or a “Lender” (as the case may be) for purposes of this Agreement and such Affected Lender shall cease to be “Issuing Lender” or a “Lender” (as the case may be) for purposes of this Agreement.

(c)Notwithstanding anything herein to the contrary, the protection of Sections 2.11(l), 2.12(d), and 2.13 shall be available to Issuing Lender and each Lender (as applicable) regardless of any possible contention of the invalidity or inapplicability of the law, rule, regulation, judicial ruling, judgment, guideline, treaty or other change or condition which shall have occurred or been imposed, so long as it shall be customary for issuing banks or lenders affected thereby to comply therewith.  Notwithstanding any other provision herein, neither Issuing Lender nor any Lender shall demand compensation pursuant to this Section 2.13 if it shall not at the time be the general policy or practice of Issuing Lender or such Lender (as the case may be) to demand such compensation in similar circumstances under comparable provisions of other credit agreements, if any.

2.14Increase in Revolver Commitments.

(a)From time toAt any time during the period from and after the ClosingAmendment Effective Date, at the option of Borrower by delivery of a written notice of a proposed increase to Agent (but subject to the conditions set forth in clause (b) below), the existing Revolver Commitments and the Maximum Revolver Amount may be increased by an amount in the aggregate for all such increases of the Revolver Commitments and the Maximum Revolver Amount not to exceed the Available Increase Amount (each such increase, an “Increase”) by an amount not to exceed the Available Increase Amount.  Agent shall invite each Lender to increase its Revolver Commitments (it being understood that no Lender shall be obligated to increase its Revolver Commitments and may refuse to do so for any reason or for no reason at all) in connection with a proposed Increase at the interest marginmargins proposed by Borrower, and if sufficient Lenders do not agree to increase their Revolver Commitments in connection with such proposed Increase, then Agent or Borrower may invite any prospective lender who is reasonably satisfactory to Agent and Borrower to become a Lender in connection with a proposed Increase.  Any Increase shall be in an amount of at least $5,000,000 (or such lesser amount as then equals the Available Increase Amount) and integral multiples of $1,000,000 in excess thereof.  Additionally, for the avoidance of doubt, it is understood and agreed that in no event shall the aggregate amount of the Increases ofto the Revolver Commitments and the Maximum Revolver Amount pursuant to this Section 2.14 made after the Amendment Effective Date exceed $25,000,00050,000,000.

(b)Each notice of a proposed Increase delivered by Borrower shall specify the date on which the proposed Increase is to be effective (the “Increase Effective Date”), which date shall not be less than 10 Business Days (or such shorter period as is acceptable to Agent in its sole discretion) after the date of such

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notice, and each of the following shall be conditions precedent to any Increase of the Revolver Commitments and the Maximum Revolver Amount in connection therewith:

(i)Agent or Borrower has obtained the commitment of one or more Lenders (or other prospective lenders) reasonably satisfactory to Agent and Borrower to provide the applicable Increase, and any such Lenders (or prospective lenders), Borrower and Agent have signed a joinder agreement to this Agreement (an “Increase Joinder”), in form and substance reasonably satisfactory to Agent and Borrower, to which such Lenders (or prospective lenders), Borrower, and Agent are party,

(ii)each of the conditions precedent set forth in Section 3.2 are satisfied as of the Increase Effective Date; provided, that with respect to any Increase the proceeds of which are being used (in whole or in part) to finance a Limited Condition Acquisition, and in each case, solely to the extent agreed to by the Lenders (or prospective Lenders) providing such Increase, (A) the condition set forth in Section 3.2(b) may be limited, at the time of funding on the date of consummation of such Limited Condition Acquisition, to any Default or Event of Default under Sections 8.1, 8.4 and 8.5 (provided, that no Default or Event of Default shall have occurred and be continuing on the relevant LCA Test Date), and (B) the other conditions to the funding of Advances under such Increase on the date of consummation of such Limited Condition Acquisition may be subject to customary “SunGard” or “certain funds” limitations to the extent the proceeds of such Advances are used to finance such Limited Condition Acquisition,

(iii)[reserved],

(ii)each of the conditions precedent set forth in Section 3.2 are satisfied as of the Increase Effective Date,

(iii)Borrower has delivered to Agent updated pro forma Projections (after giving effect to the applicable Increase) for Borrower and its Restricted Subsidiaries evidencing compliance on a Pro Forma Basis with Section 7 as of the end of the fiscal quarter of Borrower most recently ended for which financial statements have been provided pursuant to Section 5.1, in form and content reasonably acceptable to Agent,

(iv)Borrower shall have demonstrated to Agent’s reasonable satisfaction that the full amount of the respective Increase may be incurred without violating the terms of the First Lien Term Loan Documents, the Second Lien Term Loan Documents or the Intercreditor Agreement, or of any other material debt of Holdings and its Subsidiaries,the terms of the definitive documentation governing any other Indebtedness for borrowed money of Parent and its Restricted Subsidiaries with an outstanding principal amount equal to or greater than $25,000,000,

(v)Borrower shall have reached agreement with the Lenders (or prospective lenders) agreeing to the increased Revolver Commitments with respect to the interest margins applicable to Advances to be made pursuant to the increased Revolver Commitments (which interest margins may be, with respect to Advances made pursuant to the increased Revolver Commitments, higher than, equal to or lower than the interest margins applicable to Advances set forth in this Agreement immediately prior to the date of the increased Revolver Commitments), and shall have communicated the amount of such interest margins to Agent, and

(vi)Each Increase of the Revolver Commitment and Maximum Revolver Amount pursuant to this Section 2.14 shall rank pari passu in right of payment and security with the existing Revolver Commitment and Maximum Revolver Amount (including the Advances and Letters of Credit made or issued thereunder) and shall be treated substantially the same as the existing Revolver Commitment and Maximum Revolver Amount; provided, (1) the interest rate may differ as described in clause (v) above, but if the interest margins applicable to Advances made pursuant to the increased Revolver Commitments are greater than the interest margins set forth in this Agreement for Advances immediately prior to the applicable Increase

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Effective Date, the interest margins applicable to Advances made under the existing Revolver Commitment shall be increased effective on and after the Increase Effective Date so that the interest margins applicable to such Advances shall be equal to the higher interest margins that are to be applicable to Advances made pursuant to the increased Revolver Commitments; (2) the final stated maturity date for any Increase may be later (but not sooner) than the Maturity Date; (3) the proceeds of any Increase may be utilized by Borrower and its Restricted Subsidiaries for general corporate purposes permitted under the terms of this Agreement; and (4) the other terms of any given Increase may differ if reasonably satisfactory to Agent.

(c)Any Increase Joinder may, with the consent of Borrower, the Lenders or prospective lenders agreeing to the increased Revolver Commitment and Agent, but without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of Agent and Borrower, to effectuate the provisions of this Section 2.14.

(d)Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Advances shall be deemed, unless the context otherwise requires, to include Advances made pursuant to the increased Revolver Commitments and Maximum Revolver Amount pursuant to this Section 2.14.  For the avoidance of doubt, it is understood and agreed that if the interest margins that are to be applicable to the Advances made pursuant to the increased Revolver Commitments are higher than the interest margins applicable to Advances hereunder immediately prior to the applicable Increase Effective Date (the amount by which the interest margins are higher, the “Excess”), then the interest margins applicable to Advances made pursuant to the Revolver Commitment in effect immediately prior to the Increase Effective Date shall be increased by the amount of the Excess, effective on and after the applicable Increase Effective Date.

(e)To the extent any Advances or Letters of Credit are outstanding on the Increase Effective Date, each of the Lenders having a Revolver Commitment prior to the Increase Effective Date (the “Pre-Increase Revolver Lenders”) shall assign to any Lender which is acquiring a new or additional Revolver Commitment on the Increase Effective Date (the “Post-Increase Revolver Lenders”), and such Post-Increase Revolver Lenders shall purchase from each Pre-Increase Revolver Lender, such participation interests in Letters of Credit (at the principal amount thereof solely in the case of funded participations) and such interests in the Advances (at the principal amount thereof) as shall be necessary in order that, after giving effect to all such assignments and purchases, such Advances and participation interests in Letters of Credit will be held by Pre-Increase Revolver Lenders and Post-Increase Revolver Lenders ratably in accordance with their Pro Rata Share after giving effect to such increased Revolver Commitments.

(f)The Advances, Revolver Commitments, and Maximum Revolver Amount established pursuant to this Section 2.14 shall constitute Advances, Revolver Commitments, and Maximum Revolver Amount under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the guarantees and security interests created by the Loan Documents.  Borrower shall take any actions reasonably required by Agent to ensure that the Liens and security interests granted by the Loan Documents continue to be perfected under the Code or otherwise after giving effect to the establishment of any such new Revolver Commitments and Maximum Revolver Amount.

3.CONDITIONS; TERM OF AGREEMENT.

3.1Conditions Precedent to the Initial Extension of Credit.  The obligation of each Lender to make its initial extension of credit provided for hereunder on the Closing Date, is subject to the fulfillment, to the satisfaction of Agent and each Lender of each of the conditions precedent set forth on Schedule 3.1 (the execution and delivery of this Agreement by a Lender being conclusively deemed to be its satisfaction or waiver of such conditions precedent).

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3.2Conditions Precedent to all Extensions of Credit.  TheExcept as provided in Section 2.14, the obligation of the Lender Group (or any member thereof) to make any Advances hereunder (or to extend any other credit hereunder) at any time shall be subject to the following conditions precedent:

(a)the representations and warranties of Borrowereach Loan Party or its Restricted Subsidiaries contained in this Agreement or in the other Loan Documents shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any portion of any representation and warranty that is already qualified or modified by materiality in the text thereof) on and as of the date of such extension of credit, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) as of such earlier date); and

(b)no Default or Event of Default shall have occurred and be continuing on the date of such extension of credit, nor shall either result from the making thereof.

3.3Maturity.  This AgreementThe Commitments shall continue in full force and effect for a term ending on January 10, 2017 (the “Maturity Date”).  The foregoing notwithstanding, the Lender Group, upon the election of the Required Lenders, shall have the right to terminate its obligations under this Agreement immediately and without notice upon the occurrence and during the continuation of an Event of Default. (unless terminated earlier in accordance with the terms hereof).

3.4Effect of Maturity.  On the Maturity Date, all commitments of the Lender Group to provide additional credit hereunder shall automatically be terminated and all of the Obligations (other than the Hedge Obligations) immediately shall become due and payable without notice or demand and Borrower shall be required to repay all of the Obligations in full.  No termination of the obligations of the Lender Group shall relieve or discharge the Loan Parties of their duties, Obligations, or covenants hereunder or under any other Loan Document and the Agent’s Liens in the Collateral shall remain in effect until all Obligations have been paid in full and the Commitments have been terminated(other than Hedge Obligations) in full.  No termination of the obligations of the Lender Group (other than payment in full of the Obligations and termination of the Commitments) shall relieve or discharge any Loan Party of its duties, obligations, or covenants hereunder or under any other Loan Document and Agent’s Liens in the Collateral shall continue to secure the Obligations and shall remain in effect until all Obligations have been paid in full and the Commitments have been terminated.  When all of the Obligations have been paid in full and the Lender Group’s obligations to provide additional credit under the Loan Documents have been terminated irrevocably, Agent will, at Borrower’s sole expense, execute and deliver any termination statements, lien releases, mortgage releases, re-assignments of trademarks, discharges of security interests, and other similar discharge or release documents (and, if applicable, in recordable form) as are reasonably necessary to release, as of record, Agent’s Liens and all notices of security interests and liens previously filed by Agent with respect to the Obligations.

3.5Early Termination by Borrower.  Borrower has the option, at any time upon 3 Business Days’ prior written notice to Agent to terminate this Agreement and terminate the Commitments hereunder by repayingrepay all of the Obligations in full and terminate the Revolver Commitments.  The foregoing notwithstanding, (a) Borrower may rescind termination notices relative to proposed payments in full of the Obligations with the proceeds of third party Indebtedness if the closing for such issuance or incurrence does not happen on or before the date of the proposed termination (in which case, a new notice shall be required to be sent in connection with any subsequent termination), and (b) Borrower may extend the date of termination at any time with the consent of Agent (which consent shall not be unreasonably withheld or delayed).

3.6Conditions Subsequent to the Initial Extension of Credit.  The obligation of the Lender Group (or any member thereof) to continue to make Advances (or otherwise extend credit hereunder) is subject

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to the fulfillment, on or before the date applicable thereto, of each of the conditions subsequent set forth on Schedule 3.6 (the failure by Borrower to so perform or cause to be performed such conditions subsequent as and when required by the terms thereof (unless such date is extended, in writing, by Agent, which Agent may do without obtaining the consent of the other members of the Lender Group), shall constitute an Event of Default).

4.REPRESENTATIONS AND WARRANTIES.

In order to induce the Lender Group to enter into this Agreement, Borrower makes each of the following representations and warranties to the Lender Group which shall be true, correct, and complete, in all material respects (except that such materiality qualifier shall not be applicable to any portion of any representation and warranty that is already qualified or modified by materiality in the text thereof), as of the Closing Date (after giving effect to the satisfaction of the conditions precedent set forth on Schedule 3.1)Amendment Effective Date, and at and as of the date of the making of each Advance (or other extension of credit) made thereafter, as though made on and as of the date of the making of such Advance (or other extension of credit), as applicable (except to the extent that such representations and warranties relate solely to an earlier date, in which case such representation and warranty shall be true, correct, and complete in all material respects (except that such materiality qualifier shall not be applicable to any portion of any representation and warranty that is already qualified or modified by materiality in the text thereof) as of such earlier date),:

4.1Due Organization and Qualification; Subsidiaries.

(a)Each Loan Party (i) is duly organized and existing and in good standing under the laws of the jurisdiction of its organization, (ii) is qualified to do business in any state where the failure to be so qualified could reasonably be expected to result in a Material Adverse Change, and (iii) has all requisite power and authority to own and operate its properties, to carry on its business as now conducted, to enter into the Loan Documents to which it is a party and to carry out the transactions contemplated thereby.

(b)SetAs of the Amendment Effective Date, set forth on Schedule 4.1(b) (as such Schedule may be updated from time to time to reflect changes resulting from transactions permitted under this Agreement) is a complete and accurate description of the authorized capital Stock of Borrowereach Subsidiary of each Loan Party, by class, and, as of the Closing Date, a description of the number of shares of each such class that are issued and outstanding. Other than as described on Schedule 4.1(b) (as updated from time to time), there are no subscriptions, options, warrants, or calls relating to any shares of Borrower’s capital Stock, including any right of conversion or exchange under any outstanding security or other instrument.  Borrower is not subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its capital Stock or any security convertible into or exchangeable for any of its capital Stock that would violate the terms of this Agreement.

(c)ExceptAs of the Amendment Effective Date, except for directors’ qualifying shares, set forth on Schedule 4.1(c) (as such Schedule may be updated from time to time to reflect changes resulting from transactions permitted under this Agreement), is a complete and accurate list of the Loan Parties’ direct and indirect Subsidiaries, showing:  (i) the number of shares of each class of common and preferred Stock authorized for each of such Subsidiaries, (ii) the number and the percentage of the outstanding shares of each such class owned directly or indirectly by Borrowerany Loan Party, and (iii) whether such Subsidiary is designated as a Restricted Subsidiary or an Unrestricted Subsidiary and whether such Subsidiary is an Excluded Subsidiary or an Immaterial Subsidiary.  All of the outstanding capital Stock of each such Subsidiary has been validly issued and is fully paid and non-assessable.

(d)ExceptAs of the Amendment Effective Date, except as set forth on Schedule 4.1(c) (as such Schedule may be updated from time to time to reflect changes resulting from transactions permitted under this Agreementd), there are no subscriptions, options, warrants, or calls relating to any shares of

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Borrower’s Subsidiaries’ capital Stockany Stock of any Subsidiary of any Loan Party, including any right of conversion or exchange under any outstanding security or other instrument.  Neither Borrower nor any of its Subsidiaries is subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of Borrower’s Subsidiaries’ capital Stock or any security convertible into or exchangeable for any such capital Stock.

4.2Due Authorization; No Conflict.

(a)As to each Loan Party, the execution, delivery, and performance by such Loan Party of the Loan Documents to which it is a party have been duly authorized by all necessary action on the part of such Loan Party.

(b)As to each Loan Party, the execution, delivery, and performance by such Loan Party of the Loan Documents to which it is a party do not and will not (i) violate any material provision of federal, state, or local law or regulation applicable to such Loan Party or its Restricted Subsidiaries, the Governing Documents of any Loan Party or its Subsidiaries, or any order, judgment, or decree of any court or other Governmental Authority binding on such Loan Party or its Restricted Subsidiaries, (ii)in each case, except as could not reasonably be expected to result, individually or in the aggregate, in a Material Adverse Change, (ii) violate any provision of any of the Governing Documents of any Loan Party or its Restricted Subsidiaries, (iii) conflict with, result in a breach of, or constitute (with due notice or lapse of time or both) a default under any Material Contract of such Loan Party or its Restricted Subsidiaries except to the extent that any such conflict, breach or default could not individually or in the aggregate reasonably be expected to have a Material Adverse Change, (iiiiv) result in or require the creation or imposition of any Lien of any nature whatsoever upon any assets of such Loan Party, other than Permitted Liens, or (ivv) require any approval of such Loan Party’s equityholders or any approval or consent of any Person under any Material Contract of any Loan Party, other than consents or approvals that have been obtained and that are still in force and effect and except, in the case of Material Contracts, for consents or approvals, the failure to obtain could not individually or in the aggregate reasonably be expected to cause a Material Adverse Change.

4.3Governmental Consents.  The execution, delivery, and performance by each Loan Party of the Loan Documents to which such Loan Party is a party and the consummation of the transactions contemplated by the Loan Documents (including the TransactionTransactions) do not and will not require any registration with, consent, or approval of, or notice to, or other action with or by, any Governmental Authority, except for (a) registrations, consents, approvals, notices or other actions that have been obtained and that are still in force and effect, (b) for filings and recordings with respect to the Collateral to be made, or otherwise delivered to Agent for filing or recordation, as of the ClosingAmendment Effective Date, and (c) registrations, consents, approvals, notices or other actions the failure of which to obtain could not reasonably be expected to cause a Material Adverse Change.

4.4Binding Obligations; Perfected Liens.

(a)Each Loan Document has been duly executed and delivered by each Loan Party that is a party thereto and is the legally valid and binding obligation of such Loan Party, enforceable against such Loan Party in accordance with its respective terms, except as enforcement may be limited by equitable principles or by bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to or limiting creditors’ rights generally.

(b)Agent’s Liens with respect to the Collateral are validly created, perfected (other than (i) in respect of motor vehicles and (ii) any Deposit Accounts and Securities Accounts not required to be subject to a Control Agreement pursuant to this Agreement or any of the other Loan Documents, and subject only to and are (or, upon the filing of financing statements, the recordation of any Intellectual Property Security Agreement (as defined in the Security Agreement), and the recordation of the Mortgages), and and

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intellectual property filings, entry into of Control Agreements and the taking of possession by Agent (or the Term Loan Agent, subject to the terms of the Intercreditor Agreement) of the Collateral with respect to which a security interest may be perfected only by possession, will be) perfected (if and to the extent perfection may be achieved by the filings and/or actions required to be taken hereby or by the applicable Loan Documents) first priority Liens, subject only to Permitted Liens (but excluding, with respect to priority, Liens on Borrowing Base Collateral permitted under clause (q) of the definition of Permitted Liens).

4.5Title to Assets; No Encumbrances.  Each of the Loan Parties and its Restricted Subsidiaries has (a) good, sufficient and legal title to (in the case of fee interests in Real Property), (b) valid leasehold interests in (in the case of leasehold interests in Real Property or personal property), and (c) good and marketable title to (in the case of all other personal property), all of their respective assets reflected in their most recent financial statements delivered pursuant to Section 5.1, in each case except for (i) assets disposed of since the date of such financial statements to the extent permitted by this Agreement, (ii) assets having minor defects in title that do not materially interfere with the applicable Loan Party’s ability to conduct its business or to utilize such assets for their intended purposes and (iiiii) assets (other than any asset that is identified by Borrower as an Eligible Account, Eligible Credit Card Receivable or Eligible Inventory in a Borrowing Base Certificate submitted to Agent) as to which the applicable Loan Party’s failure to have good, sufficient, legal and marketable title, or a valid leasehold interest, could not reasonably be expected to result in a Material Adverse Change.  All of such assets are free and clear of Liens except for Permitted Liens.

4.6Jurisdiction of Organization; Location of Chief Executive Office; Organizational Identification Number; Commercial Tort Claims.

(a)TheAs of the Amendment Effective Date, the name of (within the meaning of Section 9-503 of the Code) and jurisdiction of organization of each Loan Party and each of its Restricted Subsidiaries is set forth on Schedule 4.6(a) (as such Schedule may be updated from time to time to reflect changes resulting from transactions permitted under the terms of this Agreement).

(b)TheAs of the Amendment Effective Date, the chief executive office of each Loan Party and each of its Restricted Subsidiaries is located at the address indicated on Schedule 4.6(b) (as such Schedule may be updated from time to time to reflect changes resulting from transactions permitted under the terms of this Agreement).

(c)EachAs of the Amendment Effective Date, each Loan Party’s and each of its Restricted Subsidiaries’ tax identification numbers and organizational identification numbers, if any, are identified on Schedule 4.6(c) (as such Schedule may be updated from time to time to reflect changes resulting from transactions permitted under the terms of this Agreement).

(d)As of the ClosingAmendment Effective Date, no Loan Party and no Restricted Subsidiary of a Loan Party holds any commercial tort claims that exceedin an amount reasonably estimated by such Loan Party to be in excess of $2,500,000 in amountand known by such Loan Party to be in existence, except as set forth on Schedule 4.6(d).

4.7Litigation.  There are no actions, suits, or proceedings pending or, to the  best knowledge of Borrower, threatened in writing (i) as of the ClosingAmendment Effective Date, with respect to the Transaction or any of the Transaction Documents, or (ii) against a Loan Party or any of its Restricted Subsidiaries that either individually or in the aggregate could reasonably be expected to result in a Material Adverse Change.

4.8Compliance with Laws.  No Loan Party nor any of its Restricted Subsidiaries (a) is in violation of any applicable laws, rules, regulations, executive orders, or codes (including Environmental Laws) that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Change, or

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(b) is subject to or in default with respect to any final judgments, writs, injunctions, decrees, rules or regulations of any court or any federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Change.

4.9No Material Adverse Change.  All financial statements relating to the Loan Parties and their Subsidiaries that have been delivered by Borrower to Agent under this Agreement and the other Loan Documents have been prepared in accordance with GAAP (except, in the case of unaudited financial statements, for the lack of footnotes and being subject to year-end audit adjustments) and present fairly in all material respects, the Loan Parties’ and their Restricted Subsidiaries’ consolidated financial condition as of the date thereof and results of operations for the period then ended.  Since December 31January 2, 20112016, no event, circumstance, or change has occurred that, individually or in the aggregate, has resulted or could reasonably be expected to result in a Material Adverse Change.

4.10Solvency; Fraudulent Transfer.  As of the Amendment Effective Date:

(a)BorrowerParent and its Restricted Subsidiaries on a consolidated basis are Solvent and, after giving effect to the consummation of the Transactions on the ClosingAmendment Effective Date, will be Solvent.; and

(b)Nono transfer of property is being made by any Loan Party and no obligation is being incurred by any Loan Party in connection with the transactions contemplated by this Agreement or the other Loan Documents with the intent to hinder, delay, or defraud either present or future creditors of such Loan Party.

4.11Employee Benefits.

(a)Except, in each case, as could not reasonably be expected to result, either individually or in the aggregate, in a Material Adverse Change, none of Parent, any Restricted Subsidiary of Parent or any ERISA Affiliate maintains or contributes to (or has any obligation to contribute to), or has liability (including any indirect, contingent or secondary liability) with respect to, any Plan, or any Multiemployer Plan or any Foreign Pension Plan, or has any such liability with respect to any pension plan as defined in Section 3(2) of ERISA that is subject to Section 302 or Title IV of ERISA or Section 412 of the IRC or any multiemployer plan as defined in Section 4001(c)(3) of ERISA that is subject to Title IV of ERISA, which is not currently maintained or contributed to by Parent, any Restricted Subsidiary of Parent or any ERISA Affiliate.

(a)No Loan Party nor any ERISA Affiliate maintains or contributes to, or has any obligation under, any Employee Benefit Plan, other than those identified on Schedule 4.11 (as updated from time to time).

(b)Each Loan Party and each ERISA Affiliate is in material compliance with all applicable provisions of ERISA, the IRC and the regulations and published interpretations thereunder with respect to all Employee Benefit Plans except for any required amendments for which the remedial amendment period as defined in Section 401(b) of the IRC has not yet expired and except where a failure to so comply could not reasonably be expected to result in a Material Adverse Change.  Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the IRC has been determined by the Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the IRC, except for such plans that have not yet received determination letters because they were established after the ending of any applicable remedial amendment period and for which the remedial amendment period for submitting a determination letter has not yet expired, and nothing has occurred since the issuance of such determination that could reasonably be expected to result in the revocation of such determination.  No liability

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has been incurred by any Loan Party or any ERISA Affiliate which remains unsatisfied with respect to any Employee Benefit Plan, except to the extent that such liabilities could not reasonably be expected to result in a Material Adverse Change.

(c)No Employee Benefit Plan provides for post-employment welfare benefits, except as required by the Consolidated Omnibus Budget Reconciliation Act and no Pension Plan has been terminated for which the liabilities have not been satisfied in full, nor has any Pension Plan failed to meet the minimum funding standards IRC (without regard to any waiver granted under Section 412 of the IRC) other than as set forth on Schedule 4.11(c)(ii) (which schedule sets forth the fair market value of the plan’s assets and the present value of the plan’s liabilities using the assumptions required by the Pension Protection Act), nor has any funding waiver from the Internal Revenue Service been received or requested with respect to any Pension Plan, nor has any Loan Party or any ERISA Affiliate failed to make any contributions or to pay any amounts due and owing as required by the IRC, ERISA or the terms of any Pension Plan prior to the due dates of such contributions, except to the extent that the failure to make such contributions or payment could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Change, nor has there been any event requiring any disclosure under Section 4041(c)(3)(C) or 4063(a) of ERISA with respect to any Pension Plan.

(d)No Loan Party nor any ERISA Affiliate has:  (A) engaged in a nonexempt prohibited transaction described in Section 406 of ERISA or Section 4975 of the IRC, except for any transaction that could not reasonably be expected to result in a material liability, (B) incurred any liability to the PBGC that remains outstanding other than the payment of premiums and there are no premium payments that are due and unpaid, except to the extent that such liability could not reasonably be expected to result in a Material Adverse Change, (C) failed to make a required contribution or payment to a Multiemployer Plan, except to the extent that the failure to make such contribution or payment could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Change, or (D) failed to make a required installment or other required payment under the IRC, except to the extent that the failure to make such installment or payment could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Change, or (E) any liability with respect to any employee benefit plan within the meaning of Section 3(3) of ERISA that is not currently maintained or contributed to by a Loan Party or any ERISA Affiliate.

(e)No Termination Event has occurred or is reasonably expected to occur that could, individually or in the aggregate, reasonably be expected to result in either a Material Adverse Change.

(f)No proceeding, claim (other than a benefits claim in the ordinary course of business), lawsuit or investigation is existing or, to the best knowledge of any Loan Party after due inquiry, threatened concerning or involving any (A) employee welfare benefit plan (as defined in Section 3(1) of ERISA) currently maintained or contributed to by any Loan Party or any ERISA Affiliate, (B) Pension Plan or (C) Multiemployer Plan that could individually or in the aggregate reasonably be expected to result in a Material Adverse Change.

(gb)Except as set forth on Schedule 4.11, thereNeither Parent nor any of its Restricted Subsidiaries is engaged in any unfair labor practice that could reasonably be expected to result, either individually or in the aggregate, in a Material Adverse Change.  There is (i) no unfair labor practice complaint pending or, to Borrowers’against Parent or any of its Restricted Subsidiaries or, to the knowledge of Parent and Borrower, threatened in writing against any Loan Party or any Restricted Subsidiary before any Governmental Authorityof them, before the National Labor Relations Board, and no grievance or arbitration proceeding pending or threatened against any Loan Party or any Restricted Subsidiary which arisesarising out of or under any collective bargaining agreement, is so pending against Parent or any of its Restricted Subsidiaries or, to the knowledge of Parent and Borrower, threatened in writing against any of them, and (ii) no strike, labor dispute, slowdown, or stoppage or similar action or grievance pending against Parent or any of its Restricted Subsidiaries or, to the best knowledge of BorrowersParent and Borrower, threatened against any

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Loan Party or any Subsidiary and (iii) no union representation question existing with respect to the employees of any Loan Party or any Subsidiary and no material union organizing activity taking place with respect to any of the employees of any of them.  Neither the Loan Parties, nor any Subsidiary, has incurred any liability or obligation under the Worker Adjustment and Retraining Notification Act (“WARN”) or similar state or provincial law, which remains unpaid or unsatisfied.  The hours worked and payments made to employees of the Loan Parties and each Restricted Subsidiary are in material compliance with the Fair Labor Standards Act or any other applicable legal requirements.  All material payments due from the Loan Parties and each Restricted Subsidiary on account of workers compensation, wages and employee health and welfare insurance and other benefits have been paid or accrued as a liability on the books of the Loan Parties or theirin writing against Parent or any of its Restricted Subsidiaries, except (, with respect to any matter specified in clauses (ai) —or (eii) above, either individually or in the aggregate), such as could not reasonably be expected to result in a Material Adverse Change.

4.12Environmental Condition.  Except as set forth on Schedule 4.12 or as individually or in the aggregate could not reasonably be expected to result in a Material Adverse Change,:

(a) to Borrower’s knowledge, no Loan Party’s oreach of Parent and each of its Restricted Subsidiaries’ properties or assets have ever been used by a Loan Party, its Restricted Subsidiaries, or by previous owners or operators in the disposal of, or to produce, store, handle, treat, release, or transport, any Hazardous Materials, where such disposal, production, storage, handling, treatment, release or transport was in violation, in any respect, of any applicable Environmental Law, (b) to Borrower’s knowledge, no Loan Party’s or its Restricted Subsidiaries’ properties or assets has ever been designated or identified in any manner pursuant to any environmental protection statute as a Hazardous Materials disposal site, (c) no Loan Party nor is in compliance with all applicable Environmental Laws and the requirements of any permits issued under such Environmental Laws; (ii) there are no pending or, to the knowledge of Parent, Holdings and Borrower, Environmental Actions threatened in writing against Parent or any of its Restricted Subsidiaries has received notice that a Lien arising under any Environmental Law has attached to any revenues or toor any Real Property owned, leased or operated by a Loan Party or its Restricted Subsidiaries (other than any such Lien that has been released), and (d) no Loan Party norParent or any of its Restricted Subsidiaries nor any of their respective facilities or operations is subject to any outstanding written order, consent decree, or settlement agreement with any Person relating to any Environmental Law or Environmental Liability.(including any such claim arising out of the ownership, lease or operation by Parent or any of its Restricted Subsidiaries of any Real Property formerly owned, leased or operated by Parent or any of its Restricted Subsidiaries but no longer owned, leased or operated by Parent or any of its Restricted Subsidiaries); and (iii) there are no facts, circumstances, conditions or occurrences with respect to the business or operations of Parent or any of its Restricted Subsidiaries, or any Real Property owned, leased or operated by Parent or any of its Restricted Subsidiaries (including, to the knowledge of Parent, Holdings and Borrower, any Real Property formerly owned, leased or operated by Parent or any of its Restricted Subsidiaries but no longer owned, leased or operated by Parent or any of its Restricted Subsidiaries) or, to the knowledge of Parent, Holdings and Borrower, any property adjoining or adjacent to any such Real Property that could be reasonably expected to form the basis of an Environmental Action against Parent or any of its Restricted Subsidiaries or any Real Property owned, leased or operated by Parent or any of its Restricted Subsidiaries; and

(b)Hazardous Materials have not at any time been generated, used, treated or stored on, or transported to or from, or Released on or from, any Real Property currently owned, leased or operated by Parent or any of its Restricted Subsidiaries or, to the knowledge of Parent, Holdings and Borrower, any Real Property formerly owned, leased or operated by Parent or any of its Restricted Subsidiaries or property adjoining or adjacent to any Real Property, where such generation, use, treatment, storage, transportation or Release has violated any applicable Environmental Law or could reasonably be expected to give rise to an Environmental Action.

4.13Intellectual Property.  Each Loan Party and each of its Restricted Subsidiaries owns, or holds licenses in, all trademarks, trade names, copyrights, patents, and licenses that are necessary to the

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conduct of its business as currently conducted, without any known conflict with the rights of others, as to which the failure to so own or hold could, or as to which any such conflict could, individually or in the aggregate, be reasonably expected to result in a Material Adverse Change.

4.14Leases.  Each Loan Party and its Restricted Subsidiaries enjoy peaceful and undisturbed possession under all leases material to their business and to which they are parties or under which they are operating, except to the extent such failure to so enjoy such possession could not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Change, and, subject to Permitted Protests, all of such leases are valid and subsisting and no default by the applicable Loan Party or its Restricted Subsidiaries exists under any of them which failure to be so valid or subsisting or which default reasonably could be expected to result in a Material Adverse Change.

4.15Deposit Accounts and Securities Accounts.  SetAs of the Amendment Effective Date, set forth on Schedule 4.15 (as updated pursuant to the provisions of the Security Agreement from time to time) is a listing of all of the Loan Parties’ Deposit Accounts and Securities Accounts, including, with respect to each bank or securities intermediary (a) the name and address of such Person, and (b) the account numbers of the Deposit Accounts or Securities Accounts maintained with such Person.

4.16Complete Disclosure.  All factual information (taken as a whole) furnished by or on behalf of a Loan Party or its Restricted Subsidiaries in writing to Agent or any Lender (including all information contained in the Schedules hereto or in the other Loan Documents) for purposes of or in connection with this Agreement, the other Loan Documents, or any transaction contemplated herein or therein is true and accurate, in all material respects, on the date as of which such information is dated or certified and not incomplete by omitting to state any material fact necessary to make such information (taken as a whole) not materially misleading at such time in light of the circumstances under which such information was provided, it being understood and agreed that, for purposes of this Section 4.16, such factual information shall not include the Projections, any pro forma financial information or other forward-looking information or information relating generally to the economy of the industry in which Borrower and its Restricted Subsidiaries operate.  The Projections delivered to Agent prior to the ClosingAmendment Effective Date represent, and as of the date on which any other Projections are delivered to Agent, such additional Projections represent, Borrower’s good faith estimate of Borrower’s and its Restricted Subsidiaries future performance for the periods covered thereby based upon assumptions believed by Borrower to be reasonable at the time of the delivery thereof to Agent (it being understood that such projections and forecasts are subject to uncertainties and contingencies, many of which are beyond the control of the Loan Parties and their Restricted Subsidiaries and no assurances can be given that such projections or forecasts will be realized or any level of performance will be achieved).

4.17Insurance.  Schedule 4.17 sets forth a listing of all insurance maintained by Borrower and its Restricted Subsidiaries as of the Closing Date, with the amounts insured (and any deductibles) set forth therein.

4.17[Reserved].

4.18Patriot Act.  To the extent applicable, each Loan Party is in compliance in all material respects with the (a) Trading with the Enemy Act, as amended, and each of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) and any other enabling legislation or executive order relating thereto, and (b) Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act of 2001, as amended) (the “Patriot Act”).  No part of the proceeds of the loans made hereunder will be used, directly or indirectly, by any Loan Party for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as amended.

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4.19Indebtedness.  Set forth on Schedule 4.19 is a true and complete list of all Indebtedness of each Loan Party and each of its Restricted Subsidiaries outstanding immediately prior to the Closing Date that is to remain outstanding immediately after the Closing Date and such Schedule accurately sets forth, in the case of Funded Indebtedness, the aggregate principal amount of such Indebtedness after giving effect to the Closing Date.

4.19[Reserved].

4.20Payment of Taxes.  Except as otherwise permitted under Section 5.5, all tax returns and reports of each Loan Party and its Restricted Subsidiaries required to be filed by any of them have been timely filed, and all taxes shown on such tax returns to be due and payable and all assessments, fees and other governmental charges upon a Loan Party and its Restricted Subsidiaries and upon their respective assets, income, businesses and franchises that are due and payable have been paid when due and payable except where the failure to do any of the foregoing could not reasonably be expected to cause, either individually, or in the aggregate, a Material Adverse Change.  Each Loan Party and each of its Restricted Subsidiaries have made adequate provision in accordance with GAAP for all taxes not yet due and payable except where the failure do so could not reasonably be expected to cause, either individually, or in the aggregate, a Material Adverse Change.  Borrower does not know of any proposed tax assessment against a Loan Party or any of its Restricted Subsidiaries, other than those (i) that are being actively contested by such Loan Party or such Restricted Subsidiary diligently, in good faith, and by appropriate proceedings, (ii) that have been adequately provided for in accordance with GAAP, or (iii) that could not reasonably be expected to cause, either individually or in the aggregate, a Material Adverse Change.  As of the Amendment Effective Date, neither Parent nor any of its Restricted Subsidiaries has entered into an agreement or waiver or been requested to enter into an agreement or waiver extending any statute of limitations relating to the payment or collection of taxes of Parent or any of its Restricted Subsidiaries, or is aware of any circumstances that would cause the taxable years or other taxable periods of Parent or any of its Restricted Subsidiaries not to be subject to the normally applicable statute of limitations except, in each case, as could not reasonably be expected to result, either individually or in the aggregate, in a Material Adverse Change.

4.21Margin Stock.  No Loan Party nor any of its Restricted Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying any Margin Stock.  No part of the proceeds of the loansAdvances made to Borrower will be used to purchase or carry any such Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock or for any purpose that violates the provisions of Regulation T, U or X of the Board of Governors.

4.22Governmental Regulation.  No Loan Party nor any of its Restricted Subsidiaries is subject to regulation under the Federal Power Act or the Investment Company Act of 1940 or under any other federal or state statute or regulation which may limit its ability to incur the Obligations or which may otherwisecould reasonably be expected to render all or any portion of the Obligations unenforceable.  No Loan Party nor any of its Restricted Subsidiaries is a “registered investment company” or  subject to registration as a “registered investment company” or a “principal underwriter” of a “registered investment company” as such terms are defined in the Investment Company Act of 1940.

4.23OFAC/Sanctions.  No Loan Party nor any of its Restricted Subsidiaries is in violation of any of the country or list based economic and trade sanctions administered and enforced by OFACSanctions.  No Loan Party nor any of its Restricted Subsidiaries nor, to the knowledge of such Loan Party, any director, officer, employee, agent or Affiliate of such Loan Party or such Restricted Subsidiary (a) is a Sanctioned Person or a Sanctioned Entity, (b) has a more than 10% of itsany assets located in Sanctioned Entities, or (c) derives more than 10% of its revenues from investments in, or transactions with Sanctioned Persons or Sanctioned Entities.  Each of the Loan Parties and its Restricted Subsidiaries has implemented and maintains in effect policies and procedures designed to promote compliance by the Loan Parties and their Restricted Subsidiaries and their respective directors, officers, employees, agents and Affiliates with the Anti-Corruption

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Laws.  Each of the Loan Parties and its Restricted Subsidiaries, and to the knowledge of each such Loan Party, each director, officer, employee, agent and Affiliate of each such Loan Party and each such Restricted Subsidiary, is in compliance with the Anti-Corruption Laws in all material respects.  No proceeds of any loan madeAdvance made or Letter of Credit issued hereunder will be used to fund any operations in, finance any investments or activities in, or make any payments to, a Sanctioned Person or a Sanctioned Entity, or otherwise used in any manner that would result in a violation of any applicable sanction by any Person (including any Lender, Bank Product Provider, or other individual or entity participating in any transaction).

4.24Eligible Accounts.; Eligible Credit Card Receivables.

(a)As to each Account (or portion thereof) that is identified by Borrower as an Eligible Account in the most recent Borrowing Base Certificate submitted to Agent, such Account is, as of the date of such Borrowing Base Certificate, (a) a bona fide existing payment obligation of the applicable Account Debtor created by the sale and delivery of Inventory or the rendition of services to such Account Debtor in the ordinary course of Borrower’s business, and (b) not excluded as ineligible by virtue of one or more of the excluding criteria set forth in the definition of Eligible Accounts (that are not Agent-discretionary criteria) as in effect at such time.

(b)As to each Credit Card Receivable (or portion thereof) that is identified by Borrower as an Eligible Credit Card Receivable in the most recent Borrowing Base Certificate submitted to Agent, such Credit Card Receivable is, as of the date of such Borrowing Base Certificate, (i) a bona fide existing payment obligation of the applicable Credit Card Issuer or Credit Card Processor created by the sale and delivery of Inventory or the rendition of services in the ordinary course of Borrower’s business, (ii) owed to a Borrowing Base Party without any known defenses, disputes, offsets, counterclaims, or rights of return or cancellation, and (iii) not excluded as ineligible by virtue of one or more of the excluding criteria set forth in the definition of Eligible Credit Card Receivables (that are not Agent-discretionary criteria) as in effect at such time.

4.25Eligible Inventory.  As to each item of Inventory that is identified by Borrower as Eligible Inventory in the most recent Borrowing Base Certificate submitted to Agent, such Inventory is, as of the date of such Borrowing Base Certificate, (a) of good and merchantable quality, free from known defects, and (b) not excluded as ineligible by virtue of one or more of the excluding criteria set forth in the definition of Eligible Inventory (that are not Agent-discretionary criteria) as in effect at such time.

4.26Location of Inventory and Equipment.  ExceptAs of the Amendment Effective Date, except as set forth on Schedule 4.26 (as such schedule may be updated from time to time pursuant to Section 5.15), the Inventory and Equipment (other than vehicles or Equipment out for repair) of the Loan Parties are not stored with a bailee, warehouseman, or similar party, except for bailees, warehousemen or similar identified as such on Schedule 4.26 (as such Schedule may be updated pursuant to Section 5.15) and are located only at the locations identified on Schedule 4.26 (as such Schedule may be updated pursuant to Section 5.15) (other than (a) Inventory and Equipment in transit from suppliers, to customers, or between such locations, and (b) other Inventory and Equipment having an aggregate fair market value of less than $15,000,000).

4.27Inventory Records.  Each Loan Party keeps correct and accurate records itemizing and describing in all material respects the type, quality, and quantity of its and its Restricted Subsidiaries’ Inventory and the book value thereof.

4.28Holding Companies.  Holdings is a holding company and does not have any material liabilities (other than liabilities arising under the Loan Documents, the Term Loan Facilities, guarantees of Permitted Indebtedness and liabilities incidental to its ownership of Borrower, including amounts owing to tax, accounting and legal professionals), own any material assets (other than the Stock of Borrower, cash and Cash

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Equivalents) or engage in any operations or business (other than the ownership of Borrower and activities reasonably related thereto, including administrative activities).

4.294.28Term Loan Documents.  As of the Amendment Effective Date, Borrower has delivered to Agent (a) a complete and correct copy of the First Lien Term Loan Documents, including all schedules and exhibits thereto and (b) a complete and correct copy of the Second Lien Term Loan Documents, including all schedules and exhibits theretoCredit Agreement and the related security agreement.

5.AFFIRMATIVE COVENANTS.

Borrower covenants and agrees that, until termination of all of the Commitments and payment in full of the Obligations, the Loan PartiesBorrower shall comply, and shall cause Parent, Holdings and each of its and their respective Restricted Subsidiaries to comply, with each of the following:

5.1Financial Statements, Reports, Certificates.  Deliver to Agent (and, if so requested by Agent, with copiesfor delivery to each Lender), each of the financial statements, reports, and other items set forth on Schedule 5.1 at the times specified therein.  In addition, Borrower agrees that (x) no Loan Party nor any Restricted Subsidiary of a Loan Party will have a fiscal year different from that of Borrower and (y) the fiscal quarters of Borrower and each of its Restricted Subsidiaries shall end within 4 days of March 31, June 30, September 30 and December 31 of each calendar year; provided, that  any Restricted Subsidiary acquired by Borrower in connection with a Permitted Acquisition may have a different fiscal year and fiscal quarter ends for a period not exceeding 270 days following the acquisition thereof.  In addition, Borrower agrees to maintain a system of accounting that enables Borrower to produce financial statements to be prepared in all material respects in accordance with GAAP.  Each Loan Party shall also (a) keep a reporting system that shows all additions, sales, claims, returns, and allowances with respect to its and its Restricted Subsidiaries’ sales, and (b) maintain its billing systems/practices as in effect on the Closing Date and shall only make material modifications thereto with notice to, and with the consent (not to be unreasonably withheld or delayed) of, Agent.

5.2Collateral Reporting.  Provide Agent (and, if so requested by Agent, with copies forfor delivery to each Lender) with each of the reports set forth on Schedule 5.2 at the times specified therein.  In addition, Borrower agrees to use commercially reasonable efforts in cooperation with Agent to facilitate and implement a system of electronic collateral reporting in order to provide electronic reporting of each of the items set forth on such Schedule.

5.3Existence.  Except as otherwise permitted under Section 6.3, at all times maintain and preserve in full force and effect its existence (including being in good standing in its jurisdiction of organization) and all rights and franchises, licenses and permits material to the business of the Loan Parties, taken as a whole; provided, however, that no Loan Party nor any of its Restricted Subsidiaries shall be required to preserve any such material right or franchise, licenses or permits if the preservation thereof is no longer desirable in the conduct of the business of such Person, or if the loss thereof could not reasonably be expected to result in a Material Adverse Change.

5.4Maintenance of Properties.  Maintain and preserve all of its assets that are necessary in the proper conduct of its business in good working order and condition, ordinary wear, tear, and casualty excepted and Permitted Dispositions excepted (and except where the failure to do so could not reasonably be expected to result in a Material Adverse Change), and comply with the material provisions of all material leases to which it is a party as lessee, so as to prevent the loss or forfeiture thereof, unless such provisions are the subject of a Permitted Protest (and except where the failure to do so could not reasonably be expected to result in a Material Adverse Change).

5.5Taxes.  Cause all material assessments and material taxes imposed, levied, or assessed against any Loan Party or its Restricted Subsidiaries, or any of their respective assets or in respect of any of its

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income, businesses, or franchises to be paid in full, before delinquency or before the expiration of any extension period, except to the extent (i) that such tax or assessment is being contested in good faith and by proper proceedings and has been adequately provided for in accordance with GAAP, (ii) that the validity of such assessment or tax shall be the subject of a Permitted Protest, or (iii) where the failure to pay could not reasonably be expected to cause, either individually or in the aggregate, a Material Adverse Change.  Borrower will and will cause each of its Restricted Subsidiaries to make timely payment or deposit of all material tax payments and material withholding taxes required of it and them by applicable laws, including those laws concerning F.I.C.A., F.U.T.A., state disability, and local, state, and federal income taxes, except where the failure to do so could not reasonably be expected to cause, either individually or in the aggregate, a Material Adverse Change.

5.6Insurance.  At Borrower’s expense, maintain or cause to be maintained insurance respecting each of the Loan Parties’ and their Restricted Subsidiaries’ assets wherever located, covering loss or damage by fire, theft, explosion, and all other hazards and risks as ordinarilyliabilities, losses or damages as are customarily are insured against by other Persons engaged in the same or similar businesses in similar locations.  Borrower also shall maintain (with respect to each of the Loan Parties and their Restricted Subsidiaries) business interruption, public liability, and product liability insurance, as well as insurance against larceny, embezzlement, and criminal misappropriationand similarly situated and located.  All such policies of insurance shall be with responsible and reputable insurance companies and in such amounts as is carried generally in accordance with sound business practice by companies in similar businesses similarly situated and located (it being agreed that the Borrower’s insurance program satisfies this standard as of the Closing Date).  AllAmendment Effective Date).  Except as otherwise agreed by Agent, all property insurance policies covering the Collateral are to be made payable to Agent for the benefit of Agent and the Lenders, as their interests may appear, in case of loss, pursuant to a standard loss payable endorsement with a standard non contributorynon-contributory “lender” or “secured party” clause.  Copies ofExcept as otherwise agreed by Agent, all certificates of property and general liability insurance are to be delivered to Agent upon Agent’s request, with thelender’s loss payable (solely with respect to the Collateral) and additional insured endorsements in favor of Agent and shall, to the extent available on a commercially reasonable basis, provide for not less than 30 days (10 days in the case of non-payment) prior written notice to Agent of the exercise of any right of cancellation or material alteration.  If Borrower fails to maintain such insurance, Agent may arrange for such insurance, but at Borrower’s expense and without any responsibility on Agent’s part for obtaining the insurance, the solvency of the insurance companies, the adequacy of the coverage, or the collection of claims.  Borrower shall give Agent prompt notice of any loss exceeding $5,000,000 covered by itsthe casualty or business interruption insurance of any Loan Party or its Restricted Subsidiaries.  Upon the occurrence and during the continuance of an Event of Default, Agent shall have the sole right to file claims under any property and general liability insurance policies in respect of the Collateral, to receive, receipt and give acquittance for any payments that may be payable thereunder, and to execute any and all endorsements, receipts, releases, assignments, reassignments or other documents that may be necessary to effect the collection, compromise or settlement of any claims under any such insurance policies.

5.7Inspection.  Permit Agent and each Lender and each of their respectiveof its duly authorized representatives or agents to visit any of its properties and inspect any of its assets or books and records, and with respect to Agent and its duly authorized representatives only, to conduct field examinations, appraisals and valuations, to examine and make copies of its books and records, and to discuss its affairs, finances, and accounts with, its officers and employees at such reasonable times and intervals as Agent may designate and, so long as no Event of Default exists, with reasonable prior notice to Borrower.  Notwithstanding the foregoing, neither Parent nor any of its Restricted Subsidiaries will be required to disclose, permit the inspection, examination or making of copies of or abstracts of, or discussion of, any document, information or other matter (i) that constitutes non-financial trade secrets or non-financial proprietary information, (ii) in respect of which disclosure to Agent (or its representatives or agents) is prohibited by applicable law, (iii) in respect of which Parent or any of its Restricted Subsidiaries owes binding confidentiality obligations (to the extent not created in contemplation of Parent’s or such Restricted Subsidiary’s obligations under this Section 5.7) to any third party after Parent’s or such Restricted Subsidiary’s use of commercially reasonable efforts to

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obtain the consent of such third party (to the extent commercially feasible), or (iv) that is subject to attorney-client or similar privilege or constitutes attorney work product.  Borrower shall pay the fees and expenses of each such field examination and appraisal subject to the limitations set forth in Section 2.10(c).  Agent shall give Borrower the opportunity to participate in any discussions with Borrower’s or Parent’s independent public accountants.

5.8Compliance with Laws.  Comply with the requirements of all applicable laws, rules, regulations, and orders of any Governmental Authority (including FCPA, OFAC (including sanctions administered and enforced thereunder) applicable statutes, regulations, orders and restrictions relating to environmental standards and controls), other than laws, rules, regulations, and orders the non-compliance with which, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Change.

5.9Environmental.

(a)Keep any property either owned or operated by Borrowerany Loan Party or its Restricted Subsidiaries free of any Environmental Liens (other than Permitted Liens) or post bonds or other financial assurances sufficient to satisfy the obligations or liability evidenced by such Environmental Liens,

(b)comply with Environmental Laws except where the failure to do so could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Change, and provide to Agent documentation of such compliance, if applicable, which Agent reasonably requests,

(c)promptly notify Agent of any release of which Borrower has actual knowledge of a Hazardous Material in any reportable quantity from or onto property owned or operated by Borrowerany Loan Party or its Restricted Subsidiaries which could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Change, and take any Remedial Actions required to abate said release or otherwise to come into compliance with applicable Environmental Law, and

(d)promptly, but in any event within 10 Business Days of its receipt thereof (or such longer period as may be permitted by Agent in its sole discretion), provide Agent with written notice of any of the following which could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Change:  (i) notice that an Environmental Lien has been filed against any of the real or personal property of Borrowera Loan Party or its Restricted Subsidiaries, (ii) commencement of any Environmental Action or written notice that an Environmental Action will be filed against Borrowera Loan Party or its Restricted Subsidiaries, and (iii) notice of aan environmental violation, citation, or other administrative order which could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Change.

5.10Disclosure Updates.

(a)Promptly and in no event later than 15 Business Days (or such longer period as may be permitted by Agent in its sole discretion) after obtaining knowledge thereof, notify Agent if any written information, exhibit, or report furnished to the Lender Group contained, at the time it was furnished, any untrue statement of a material fact or omitted to state any material fact necessary to make the statements contained therein not materially misleading in light of the circumstances in which made.  The foregoing to the contrary notwithstanding, any notification pursuant to the foregoing provision will not cure or remedy the effect of the prior untrue statement of a material fact or omission of any material fact nor shall any such notification have the effect of amending or modifying this Agreement or any of the Schedules hereto.

(b)Promptly and in no event within 10 days (or such longer period as may be permitted by Agent in its sole discretion) after obtaining knowledge thereof, notify Agent in writing of (i) any change with respect to the list of the Loan Parties’ Subsidiaries and the description of their issued and outstanding Stock set forth on Schedule 4.1(b), Schedule 4.1(c), or Schedule 4.6(d), and (ii) any Deposit Account or

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Securities Account of any Loan Party not identified on Schedule 4.15, including with respect to each applicable bank or securities intermediary (i) the name and address of such Person, and (ii) the account numbers of the Deposit Accounts or Securities Accounts maintained with such Person.

5.11Formation of Subsidiaries; Designation of Additional Restricted Subsidiaries .  At the time that any Loan Party forms any direct or indirect Wholly-Owned Domestic Subsidiary that is a Restricted Subsidiary (other than an Excluded Subsidiary), or acquires any direct or indirect Wholly-Owned Domestic Subsidiary that is a Restricted Subsidiary (other than an Excluded Subsidiary), or designates an Unrestricted Subsidiary that is a Wholly-Owned Domestic Subsidiary as a Restricted Subsidiary (other than an Excluded Subsidiary), in each case, after the Closing Date, (a) promptlyAmendment Effective Date and subject to any limitations set forth in the Loan Documents, promptly (and, in any event, within 60 days after such formation, acquisition or designation, or such later date as permitted by Agent in its sole discretion), (a) cause each such new Wholly-Owned Domestic Subsidiary to provide to Agent (i) a Guaranty or a joinder to a Guaranty, (ii) a joinder to the Security Agreement, an acknowledgment to the Intercreditor Agreement and a joinder to the Intercompany Subordination Agreement, (iii) if applicable, a Control Agreement, a Patent Security Agreement, a Trademark Security Agreement and a Copyright Security Agreement, and (iv) such other security documents (including mortgagesin the case of Real Property, a mortgage shall only be required with respect to any Real Property owned in fee by such new Subsidiary with a fair market value of at least $5,000,000), as well as appropriate financing statements (and with respect to all property subject to a mortgage, fixture filings), all in form and substance reasonably satisfactory to Agent (including being sufficient to grant Agent a first priority Lien (subject to the Intercreditor Agreement and Permitted Liens (but excluding as to priority Liens on Borrowing Base Collateral permitted under clause (q) of the definition of Permitted Liens)), in and to the assets of such newly formed or acquired Wholly-Owned Domestic Subsidiary or such designated Restricted Subsidiary (except for assets expressly not included as Collateral pursuant to the Security Agreement), (b) to the extent not covered by the Security Agreement, promptly upon the formation or acquisition of such new Wholly-Owned Domestic Subsidiary or the designation of such Restricted Subsidiary, cause each applicable Loan Party to provide to Agent a pledge agreement and appropriate certificates and powers or financing statements, pledging all of the direct or beneficial ownership interest in such new Wholly-Owned Domestic Subsidiary or such designated Restricted Subsidiary reasonably satisfactory to Agent (to the extent such Stock is not expressly excluded from Collateral pursuant to the Security Agreement), and (c) promptly upon the formation or acquisition of such new Wholly-Owned Domestic Subsidiary or the designation of such Restricted Subsidiary provide to Agent all other documentation, including, if reasonably requested by Agent, one or more opinions of counsel reasonably satisfactory to Agent, which in its reasonable opinion is appropriate with respect to the execution and delivery of the applicable documentation referred to above (including policies of title insurance, flood insurance (if applicable) or other documentation with respect to all Real Property owned in fee and required to be subject to a mortgage).  Promptly afterAfter any Wholly-Owned Domestic Subsidiary of Borrower that is a Restricted Subsidiary ceases to constitute an “Excluded Subsidiary” or a “Pass-Through Foreign Holding Company” in accordance with the respective definitions thereof, Borrower shall cause each such Subsidiary that remains a Wholly-Owned Domestic Subsidiary that is a Restricted Subsidiary of Borrower to promptly (and, in any event, within 60 days or such later date as permitted by Agent in its sole discretion) take all actions required by this Section 5.11 and Section 5.12 as if such Subsidiary were then formed or acquired or then designated as a Restricted Subsidiary, as the case may be.  Any document, agreement, or instrument executed or issued pursuant to this Section 5.11(a) or (b) shall beconstitute a Loan Document.  Notwithstanding anything to the contrary, (x) except as provided in the following sentence, the Loan Parties shall execute and deliver to Agent, such mortgages, deeds of trust, control agreements, and other security documents to the extent provided to Term Loan Agent or executed in respect of the Term Loan Facility, and (y) no Subsidiary shall constitute a Borrowing Base Party for any purpose, and no assets of any Subsidiary shall be included in the calculation of the Borrowing Base, unless and until such Subsidiary shall have delivered to Agent a Guaranty or a joinder to a Guaranty and the Security Agreement or a joinder to the Security Agreement.  Notwithstanding anything contained in this Section 5.11 to the contrary, (i) each action required by this Section 5.11 with respect to Real Property shall be completed within 120 days after such action is requested to be taken by Agent (or such longer period of time as may be agreed to by Agent

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in its sole discretion), and (ii) for the avoidance of doubt, no mortgage or deed of trust or deliverables relating thereto shall be required in respect of the Enid Real Property.

5.12Further Assurances.  At any time, promptly upon the reasonable request of Agent but subject to any limitations set forth in the Loan Documents, execute or deliver to Agent any and all financing statements, fixture filings, security agreements, pledges, assignments, endorsements of certificates of title, mortgages, deeds of trust, and all other documents (collectively, the “Additional Documents”) that Agent may reasonably request in form and substance reasonably satisfactory to Agent, to create, perfect, and continue perfected or to better perfect Agent’s Liens in substantially all of the assets of the Loan Parties (whether now owned or hereafter arising or acquired, tangible or intangible, real or personal), to create and perfect Liens in favor of Agent in any fee-owned Real Property acquired by Borrower or its Restricted Subsidiaries after the Closing Date with a fair market value in excess of $5,000,000 (or such other fee-owned or leased Real Property as to which a mortgage is granted (or required to be granted) pursuant to the terms of either the First Lien Term Loan Documents or the Second Lien Term Loan Documents), and in order to fully consummate all of the transactions contemplated hereby and under the other Loan Documents.  To the maximum extent permitted by applicable law, if any such Additional Documents are not executed and delivered within a reasonable time following a request therefor by Agent, Borrower hereby irrevocably authorizes Agent to execute any such Additional Documents in the applicable Loan Party’s name, as applicable, and authorizes Agent to file such Additional Documents in any appropriate filing office.  In furtherance and not in limitation of the foregoing, each Loan Party shall take such actions (subject to any limitations set forth in the Loan Documents) as Agent may reasonably request from time to time to ensure that the Obligations are guarantiedguaranteed by the Guarantors and are secured by substantially all of the assets of the Loan Parties and all of the outstanding capital Stock of BorrowerHoldings and its Restricted Subsidiaries (subject to exceptions and limitations contained in the Loan Documents including with respect to the Stock of Foreign Subsidiaries and Excluded Subsidiaries).  Furthermore, in the case of additional Real Property Collateral, upon the request of Agent, the Loan Parties will deliver to Agent such opinions of counsel in each jurisdiction in which the mortgaged Real Property is located in form and substance reasonably satisfactory to Agent, surveys, Mortgage Policies with title insurance coverage reasonably satisfactory to Agent and other related documents as may be reasonably requested by Agent to assure itself that this Section 5.12 has been complied with.  Notwithstanding anything contained in this Section 5.12 to the contrary, (i) each action required by this Section 5.12 with respect to Real Property shall be completed within 120 days after such action is requested to be taken by Agent (or such longer period of time as may be agreed to by Agent in its sole discretion), and (ii) for the avoidance of doubt, no mortgage or deed of trust or deliverables relating thereto shall be required in respect of the Enid Real Property.

5.13Lender Meetings.  Within 120 days after the close of each fiscal yearFiscal Year of Borrower, at the request of Agent or of the Required Lenders and upon reasonable prior notice, hold a meeting (at a mutually agreeable location and time or, at the option of Agent, by conference call) with all Lenders who choose to attend such meeting at which meeting shall be reviewed the financial results of the previous fiscal year and the financial condition of Borrower and its Restricted Subsidiaries and the projections presented for the current fiscal yearFiscal Year of Borrower.

5.14Compliance with ERISA and the IRC.  In addition to and without limiting the generality of Section 5.8, (a) except where the failure to do so could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Change, (i) comply with all applicable provisions of ERISA, the IRC and the regulations and published interpretations thereunder with respect to all Employee Benefit Plans, (ii) not take any action or fail to take action the result of which could reasonably be expected to result in a liability to the PBGC or to a Multiemployer Plan, (iii) not participate in any prohibited transaction that could result in any civil penalty under ERISA or tax under the IRC, and (iv) operate each Employee Benefit Plan in such a manner that will not incur any tax liability under Section 4980B of the IRC or any liability to any qualified beneficiary as defined in Section 4980B of the IRC, and (b) furnish to Agent upon its request such additional information about any Employee Benefit Plan as may be reasonably requested by Agent.

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5.14Compliance with ERISA and the IRC.

(a)Parent, Holdings, Borrower and their respective ERISA Affiliates shall each (i) maintain all Plans that are presently in existence or may, from time to time, come into existence, in compliance with the terms of any such Plan, ERISA, the IRC and all other applicable laws, and (ii) make or cause to be made contributions to all Plans in a timely manner and in a sufficient amount to comply with the requirements of Sections 302 and 303 of ERISA and Sections 412 and 430 of the IRC, in each case except to the extent the failure to do so would not reasonably be expected to result in a Material Adverse Change.

(b)Parent and each of its applicable Restricted Subsidiaries shall ensure that all Foreign Pension Plans administered by it or into which it makes payments obtains or retains (as applicable) registered status under and as required by applicable law and is administered in a timely manner in all respects in compliance with all applicable laws, except where the failure to do any of the foregoing, either individually or in the aggregate, could not be reasonably likely to result in a Material Adverse Change.

(c)Promptly and in any event within 10 days after Parent, Holdings, Borrower, a Restricted Subsidiary or any of their ERISA Affiliates knows or has reason to know that any ERISA Event has occurred, a statement of an Authorized Person of the relevant entity describing such ERISA Event and the action, if any, that  the relevant entity or its ERISA Affiliate has taken and proposes to take with respect thereto.

5.15Location of Inventory and Equipment.  Keep each Loan Parties’ Inventory and Equipment only at the locations identified on Schedule 4.26 (other than (i) vehicles, (ii) Equipment out for repair, (iii) Inventory and Equipment in transit from suppliers, to customers, or between such locations and (iv) other Inventory and Equipment having an aggregate fair market value not exceeding $15,000,000) and their chief executive offices only at the locations identified on Schedule 4.6(b); provided, that Borrower may amend Schedule 4.26 or Schedule 4.6(b) so long as such amendment occurs by, unless such Loan Party has delivered to Agent written notice to Agentof a change in such location not less than 10 days (or such later date as permitted by Agent in its sole discretion) prior to the date on which such Inventory or Equipment is moved to such new location or such chief executive office is relocated and so long as such new location is within the United States, and, with respect to any leased location or warehouse location, so long as, Borrower each Loan Party uses commercially reasonable efforts to provide Agent a Collateral Access Agreement with respect thereto from the landlord or warehouseman of such location, if any, at the time of such written notification.

5.16Ownership of Subsidiaries. Except as otherwise permitted pursuant to a Permitted Acquisition, a Permitted Investment or a Permitted Disposition, in each case consummated in accordance with the terms hereof, own 100% of the Stock of each of their Restricted Subsidiaries (other than directors’ qualifying shares and other nominal amounts of shares to the extent required by applicable law).

6.NEGATIVE COVENANTS.

Borrower covenants and agrees that, until termination of all of the Commitments and payment in full of the Obligations, the Loan Parties (except, in the case of Holdings, with respect to Sections 6.9 and 6.12) will not and willBorrower shall not, and shall not permit any ofother Loan Party or any of its or their Restricted Subsidiaries to, do any of the following:

6.1Indebtedness.  Create, incur, assume, suffer to exist, guarantee, or otherwise become or remain, directly or indirectly, liable with respect to any Indebtedness, except for Permitted Indebtedness.

6.2Liens.  Create, incur, assume, or suffer to exist any Lien on or with respect to any of its assets, whether now owned or hereafter acquired, or any income or profits therefrom, except for Permitted Liens.

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6.3Restrictions on Fundamental Changes.

(a)Merge or consolidate with any Person, except for (i) any merger or consolidation between Qualified Loan Parties; provided that, (ii) any merger or consolidation between Restricted Subsidiaries of Parent that are not Loan Parties, (iii) any merger or consolidation between a Loan Party and any Restricted Subsidiary that is not a Loan Party, so long as a Loan Party is the surviving entity of any such merger or consolidation, (iv) any merger or consolidation to effect a disposition permitted under the terms of this Agreement, and (v) any merger or consolidation to effect a Permitted Acquisition or other Permitted Investment; provided, in the case of each of the foregoing clauses (i)-(v), Borrower must be the surviving entity of any such merger or consolidation to which it is a party, (ii) any merger or consolidation between Restricted Subsidiaries of Borrower that are not Qualified Loan Parties, (iii) any merger or consolidation between a Qualified Loan Party and any Restricted Subsidiary of Borrower that is not a Qualified Loan Party, so long as Borrower or a Qualified Loan Party is the surviving entity of any such merger or consolidation, (iv) dispositions permitted under the terms of this Agreement, and (v) Permitted Acquisitions and Permitted Investments,

(b)Except for dispositions permitted under the terms of this Agreement, liquidate, wind up, or dissolve itself (or suffer any liquidation or dissolution), except for (i) the liquidation or dissolution of non-operating Restricted Subsidiaries of Borrowerany Loan Party with nominal assets and nominal liabilities, (ii) the liquidation or dissolution of a Loan Party (other than Parent, Holdings or Borrower) so long as all of the assets (including any interest in any Stock) of such liquidating or dissolving Loan Party are transferred to a Loan Party that is not liquidating or dissolving, or (iii) the liquidation or dissolution of a Restricted Subsidiary of Borrower that is not a Loan Party (other than any such Restricted Subsidiary the Stock of which (or any portion thereof) is subject to a Lien in favor of Agent unless the assets of such dissolving or liquidating entity are transferred to a Loan Party) so long as all of the assets of such liquidating or dissolving Restricted Subsidiary are transferred to a Restricted Subsidiary of Borrower that is not liquidating or dissolving, orinto Borrower or one or more other Restricted Subsidiaries, or

(c)Suspend or go out of a substantial portion of the business of Borrower and its Restricted Subsidiaries, taken as a whole, except as permitted pursuant to clauses (a) or (b) above or in connection with the transactions permitted under the terms of this Agreement.

6.4Disposal of Assets.  Other than Permitted Dispositions, Permitted Investments, Permitted Liens or transactions expressly permitted by Sections 6.3, 6.9 or 6.11, convey, sell, lease, license, assign, transfer, or otherwise dispose of any of Borrower’sany Loan Party’s or its Restricted Subsidiaries assets.

6.5Change Name.  Change Borrower’s or any of its Subsidiaries’ name,any Loan Party’s legal name, tax identification number, organizational identification number, statejurisdiction of organization or organizational identitytype of organization unless Borrower provides at least 10 Business Days’ (or such shorter period as permitted by Agent in its sole discretion) prior written notice to Agent of such change.

6.6Nature of Business.  Make any change in the nature of its or their business as described in Schedule 6.6 or acquire any material properties or assets that are not reasonably related to the conduct of such business activities; provided that the foregoing shall not prevent Borrower and its Subsidiaries from engaging in any business or acquiring properties or assets that areEngage, directly or indirectly, in any material line of business substantially different from the businesses engaged in by Parent and its Restricted Subsidiaries as of the Amendment Effective Date and businesses reasonably related, ancillary or complementary to its or their business.  Notwithstanding the foregoing or anything else in this Agreement to the contrary, Borrower will not permit any Pass-Through Foreign Holding Company that is not a Loan Party to engage in any business or own any significant assets or have any material liabilities other than its ownership of the Stock of Foreign Subsidiaries, those related to its ownership of such equity interests and cash and Cash Equivalents; provided that such Pass-Through Foreign Holding Company may engage in those activities and have liabilities that are

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incidental to (x) the maintenance of its existence in compliance with applicable law and (y) legal, tax and accounting matters in connection with any of the foregoing activities.thereto or reasonable extensions thereof.

6.7Prepayments and Amendments.

(a)Except in connection with (x) any Term Loan Refinancing consummated on the Amendment Effective Date, and (y) Refinancing Indebtedness permitted by Section 6.1,

(i)optionally prepay, redeem, defease, purchase, or otherwise acquire any principal of the Indebtedness of Borrowerany Loan Party or its Restricted Subsidiaries, other than (A) the Obligations in accordance with this Agreement, (B) Hedge Obligations, (C) Permitted Intercompany Advances, and (CD) other Indebtedness of Borrower or its Restricted Subsidiaries (including Indebtedness in respect of Capital Leases or, Permitted Purchase Money Indebtedness and the Term Loan FacilitiesFacility), so long as, in the case of this clause (D), either (1) no Default or Event of Default has occurred and is continuing or would result therefrom, and (2)such prepayment, redemption, defeasance, purchase or other acquisition is made solely with Net IPO Proceeds received by Parent, within the 60 day period immediately preceding the date of such prepayment, redemption, defeasance, purchase or other acquisition, to the extent Not Otherwise Applied, or (2) immediately before and immediately after giving effect to such prepayment, redemption, defeasance, purchase or other acquisition, the Excess Availability Threshold willeach of the Payment Conditions shall be satisfied, or

(ii)make any payment on account of Indebtedness that has been contractually subordinated in right of payment ofto the Obligations if such payment is not permitted at such time under the applicable subordination terms and conditions, or

(b)Amend, modify, change or waive, directly or indirectly, any of the terms or provisions of:

(i)any agreement, instrument, document, indenture, or other writing evidencing or concerning Indebtedness permitted under Section 6.1, other than (A) the Obligations in accordance with this Agreement, (B) Permitted Intercompany Advances, (C) Permitted Indebtedness (other than the Term Loan Facilities and any Refinancing Indebtedness in respect thereof), and (D) the Term Loan Facilitiesthe Term Loan Facility (and any Refinancing Indebtedness in respect thereof), if, and to the extent that, such amendment, modification or, change is notor waiver is prohibited by the Intercreditor Agreement,

(ii)prior to consummation of an IPO, any Management Agreement if the effect thereof, either individually or in the aggregate, could reasonably be expected to be materially disadvantageous, in the good faith judgment of the Board of Directors of Borrower, to the Lenders when taken as a whole, as compared to such Management Agreement as in effect on the Closing Date (it being understood that any increase in fees payable under any Management Agreement shall be deemed to be materially adverse to the Lenders), andis to increase the annual management fees payable thereunder to an aggregate amount in excess of $6,000,000 during any Fiscal Year (exclusive of amounts paid in reimbursement of expenses, indemnities, termination fees and transaction-specific payments and fees), and

(iii)the Governing Documents of any Loan Party or any of their Restricted Subsidiaries if the effect thereof, either individually or in the aggregate, could reasonably be expected to be materially adverse to the interests of the Lenders.

6.8Change of Control.  Cause, permit or suffer any Change of Control.

6.9Distributions.  MakeDeclare or make any Restricted Payment; provided, however, that, so long as it is permitted by applicable law,

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(a)each Restricted Subsidiary of Parent may make Restricted Payments to Parent and any other Restricted Subsidiary of Parent,

(ab)BorrowerParent may (and may make Restricted Payments in cash to Holdings to permit Holdings orto any direct or indirect parent of Parent for the purpose of enabling any direct or indirect parent of Parent to) make Restricted Payments to former employees,redeem, repurchase or otherwise acquire for value Stock of Parent (or of such direct or indirect parent of Parent) following the death, disability, retirement or termination of employment of officers, or directors (or any spouses, ex-spouses, or estates of any of the foregoing) on account of redemptions, repurchases or the retirement of Stock of Holdings or Parent held by such Persons, so long as Holdings or Parent promptly uses such amount solely to make such redemptions, repurchases or retirements,or employees of Parent or any of its Restricted Subsidiaries; provided, that (i) the aggregate amount of such Restricted Payments made by Borrower under this clause (ab) during the term of this Agreement doesany Fiscal Year shall not exceed the sum of (y) $15,000,000 during any fiscal year of Borrower (which shall increase to $20,000,000 subsequent to the consummation of an IPO by Borrower or any direct or indirect parent company of Borrower) with unused amounts in any fiscal yearFiscal Year being permitted to be carried over to the immediately succeeding fiscal yearFiscal Year, plus (z) any cash proceeds received by Holdings or BorrowerParent or any of its Restricted Subsidiaries from key man life insurance policies during such Fiscal Year, (ii) at the time of any cashsuch Restricted Payment permitted to be made pursuant to this clause (ab), no Default or Event of Default shall have occurred and be continuing or would result therefrom, and (iii) immediately after giving effect to such Restricted Payment, the Excess Availability Threshold will be satisfiedshall be greater than the greater of (A) $22,500,000 and (B) 15% of the aggregate amount of the Commitments then in effect,

(bc)BorrowerParent may make Restricted Payments in cash to Holdings (or any parent company thereof) for the purpose of permitting Holdings or Parent (or any parent company thereof) to pay federal and state income taxes, franchise taxes, and other taxes, fees and assessmentsto any direct or indirect parent of Parent at the times and in the amounts necessary to enable such direct or indirect parent of Parent to pay their respective tax obligation to the extent attributable solely to the business of BorrowerParent and its Restricted Subsidiaries so long as (i) the amount of suchcash Restricted Payment shall notPayments paid by Parent pursuant to this clause (d) to enable any direct or indirect parent of Parent to pay federal and state income and franchise taxes at any time shall not exceed the amount of such federal and state income and franchise taxes actually owing by Holdings or Parent (or any parent company thereof), as the case may be,such direct or indirect parent of Parent at such time for the respective period as determined in good faith by Holdings or Parent (or any parent company thereof)such direct or indirect parent of Parent, and (ii) Holdings or Parent (or any parent company thereof), as the case may be, promptly usesthe proceeds of such Restricted PaymentPayments shall be used by such direct or indirect parent of Parent to pay such taxestax obligations;

(cd)BorrowerParent may make Restricted Payments in cash to Holdings (or any direct or indirect parent company thereof)of Parent in an aggregate amount not to exceed $2,000,000 in any fiscal year forFiscal Year so long as the proceeds thereof are used by such direct or indirect parent of Parent solely to (i) pay customary and reasonable out-of-pocket expenses, legal and accounting fees and expenses and overhead of Holdings or Parent (or any parent company thereof)operating expenses of such direct or indirect parent of Parent incurred in the ordinary course of business to the extent attributable solely to the business of Borrower(including outside directors and professional fees, expenses and indemnities) and other similar corporate overhead costs and expenses in each case attributable to the ownership or operations of Parent and its Restricted Subsidiaries and so long as Holdings or Parent (or any parent company thereof) promptly uses such amount solely to make payment of such fees or expenses;(ii) make Restricted Payments to any direct or indirect parent of Parent for the purpose of paying (and so long as the same are used to pay) operating expenses of such direct or indirect parent of Parent incurred in the ordinary course of business and other similar corporate overhead costs and expenses in each case attributable to the ownership or operations of Parent and its Restricted Subsidiaries;

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(d)Borrower may make Restricted Payments in cash to Holdings of amounts Borrower would be permitted to pay in respect of amounts owed under the Management Agreements pursuant to Section 6.12(e), so long as Holdings uses such amount to pay such amounts owed under the Management Agreements (or distributes to Parent such amounts so as to permit Parent to do so, so long as it, in turn, does so);

(e)any Qualified Loan Party may make Restricted Payments to any other Qualified Loan Party, and any Foreign Subsidiary of Borrower may make Restricted Payments to any Wholly-Owned Foreign Subsidiary of Borrower or to any Loan Party;payments under the Management Agreements permitted under Section 6.12(e);

(f)any Non-Wholly-Owned Subsidiary of BorrowerParent may make Restricted Payments to its shareholders, members or partners generally, so long as BorrowerParent or its respective Restricted Subsidiary which owns the Stock in the Restricted Subsidiary making such Restricted Payment receives at least its proportionate share thereof (based upon its relative holding of the Stock in the Restricted Subsidiary making such Restricted Payment and taking into account the relative preferences, if any, of the various classes of Stock of such Restricted Subsidiary);

(g)BorrowerParent may make Restricted Payments in cash to Holdings to enable Holdings to make Restricted Payments in cash to the holders of its Stock, so long as (i) no Default or Event of Default has occurred and is continuing or would exist after giving effect to the respective Restricted Payment, (ii) immediately after giving effect toresult therefrom, and (ii) such Restricted Payment, the Excess Availability Threshold will be satisfied, (iii) subject to the immediately succeeding clause (iv), the aggregate amount of all cash Restricted Payments made by Borrower pursuant to this clause (g) does not exceed $15,000,000, and (iv) Borrower shall have furnished to Agent a certificate from an Authorized Person of Borrower certifying to the best of his or her knowledge as to compliance with the requirements of this clause (g) and containing the calculations (in reasonable detail) required by the preceding clauses (ii) and (iii); is made solely with Net IPO Proceeds received by Parent within the 60 day period immediately preceding the date of such Restricted Payment, to the extent Not Otherwise Applied;

(h)after consummation of an IPO, Parent may make Restricted Payments in an aggregate amount in any Fiscal Year not to exceed (i) $30,000,000 if EBITDA for the most recently ended Calculation Period as of the date of declaration of such Restricted Payment is less than $250,000,000 or (ii) $60,000,000 if EBITDA for the most recently ended Calculation Period as of the date of declaration of such Restricted Payment equals or exceeds $250,000,000;

(i)Parent may (and may make Restricted Payments to any direct or indirect parent of Parent for the purpose of enabling any direct or indirect parent of Parent to) make payments due under the Tax Receivables Agreement;

(j)Parent and each of its Restricted Subsidiaries may declare and make Restricted Payments payable solely in Stock of such Person (other than Stock constituting Disqualified Equity Interests);

(k)Parent or any Restricted Subsidiary may (i) pay cash in lieu of fractional shares of Stock in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; and

(hl)ifto the extent not otherwise permitted pursuant to this Section 6.8, Parent and its Restricted Subsidiaries may make additional Restricted Payments, so long as immediately before and after giving effect to the respective Restricted Payment, the First Lien Net Leverage Ratio for the Calculation Period most recently ended (calculated on a Pro Forma Basis as if such Restricted Payment had been made on the first

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day of such Calculation Period) does not exceed 3.75:1.00, then Borrower may pay make Restricted Payments in cash to Holdings in an aggregate amount not to exceed the Available Amount; provided that with respect to any Restricted Payment pursuant to this Section 6.9(h), (i) no Default or Event of Default has occurred and is continuing or would result therefrom and (ii) immediately after giving effect toeach such Restricted Payment, the Excess Availability Threshold willeach of the Payment Conditions shall be satisfied; and.

(i)Borrower and Holdings may make the Closing Date Dividend Payments.

6.10Accounting Methods.  Except as required by clause (b) of Schedule 3.6, modifyModify or change its fiscal yearFiscal Year or its method of accounting in a manner that modifies the calculation of the Fixed Charge Coverage Ratio or the Borrowing Base (or, in each case, any of the component definitions thereof) (other than as may be permitted in accordance with GAAP), provided, that (a) any Restricted Subsidiary acquired by Borrower in connection with a Permitted Acquisition may change their fiscal year and fiscal quarterFiscal Year and Fiscal Quarter ends to conform to the fiscal year and fiscal quarterFiscal Year and Fiscal Quarter ends of Borrower and may change its method of accounting to conform to the accounting methods of Borrower., (b) Borrower may, upon prior written notice to Agent, change its Fiscal Year to any other Fiscal Year reasonably acceptable to Agent, and (c) Borrower may, upon prior written notice to Agent, change its method of accounting in a manner reasonably acceptable to Agent.

6.11Investments.

(a)Except for Permitted Investments, make or acquire any Investment.

(b)Make, acquire or permit to exist at any time, in the case of Borrower and the other Loan Parties, Permitted Investments consisting of cash, Cash Equivalents, or amounts credited to Deposit Accounts or Securities Accounts unless Borrower or such Loan Party, as applicable, and the applicable securities intermediary or bank have entered into Control Agreements with Agent governing such Permitted Investments in order to perfect (and further establish) the Agent’s Liens in such Permitted Investments, in each case, other than (i) any Deposit Accounts andAccount or any Securities AccountsAccount having (x) an average monthly aggregate daily balance of not more than $2,000,000 at any one time, in the case of Borrower and the other Loan Partiesor (y) an average monthly aggregate daily balance for all such Deposit Accounts and Securities Accounts of not more than $5,000,000 at any one time, (ii) amounts deposited into Deposit Accounts specifically and exclusively used for payroll, payroll taxes, withholding taxes, and other employee wage and benefit payments to or for Borrower’s or its Restricted Subsidiaries’ employees, (iii) cash and Cash Equivalents deposited with Parent, Holdings, Borrower or a Restricted Subsidiary by a contractual counterparty to an Hedge Agreement as collateral pursuant to such agreement, (iv) cash and Cash Equivalents, and amounts credited to Deposit Accounts or Securities Accounts, which are subject to Permitted Liens of the type described in clauses (h), (i), (j), (o), (p), (s) and (u) of the definition thereof, and (v) Deposit Accounts and Securities Accounts specifically and exclusively used for escrow, customs or other fiduciary purposes to the extent permitted under the Loan Documents and Deposit Accounts and Securities Accounts established solely and exclusively for the purposes of complying with applicable legal requirements, to the extent such legal requirements prohibit the granting of a Lien thereon; provided that, notwithstanding anything to the contrary contained in this Agreement or any other Loan Document, with respect to any Restricted Subsidiary acquired pursuant to a Permitted Acquisition, from and after the date that is 180 days after the consummation of such Permitted Acquisition, Borrower (or such longer period as Agent may agree in its sole discretion), Parent and its Restricted Subsidiaries that are Domestic Subsidiaries shall maintain their primary depository and treasury management relationships with Wells Fargo or one of its Affiliates.  Except as provided in Section 6.11(b)(i), (ii), (iii), (iv) and (v), Borrower shall not, and shall not permit its Loan Party Subsidiaries, tonone of the Loan Parties shall establish or maintain any Deposit Account or Securities Account unless Agent shall have received a Control Agreement in respect of such Deposit Account or Securities Account.

6.12Transactions with Affiliates.  Enter into or permit to exist any transaction with any Affiliate of BorrowerParent or any of its Subsidiaries except for:

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(a)transactions (other than the payment of management, consulting, monitoring, or advisory fees) between Holdings, Borrowerany Loan Party or its Restricted Subsidiaries, on the one hand, and any Affiliate of Borrowersuch Loan Party or its Restricted Subsidiaries, on the other hand, so long as, if such Affiliate is not Holdings, Borrower or a Restricted Subsidiary, such transactions (i) are upon fair and reasonable terms, (ii) are fully disclosed to Agent prior to the consummation thereof, if they involve one or more payments by Borrower or its Restricted Subsidiaries in excess of $7,500,000 for any single transaction or series of related transactions, and (iii) are no less favorable, taken as a whole, to Holdings, Borrowersuch Loan Party or its Restricted SubsidiariesSubsidiary, as applicable, than would be obtained in an arm’s length transaction with a non-Affiliate,

(b)reasonable and customary indemnities provided for the benefit of directors of Parent, Holdings, Borrower or any Restricted Subsidiary,

(c)the payment of fees, compensation, severance or employee benefit arrangements to employees, officers, and outside directors of Parent, Holdings, Borrower or any Restricted Subsidiary in the ordinary course of business and consistent with industry practice,

(d)transactions permitted by Section 6.3, Section 6.4, Section 6.7, Section 6.9, or Section 6.11, or any Permitted Intercompany Advance or any payments under the Tax Receivable Agreement,

(e)prior to consummation of an IPO, so long as no Event of Default has occurred and is continuing or would result therefrom, (i) the payment of management, consulting, monitoring, advisory and other fees (including any termination fee) and related expenses (including indemnification and other similar amounts) pursuant to any Management Agreement (plus any unpaid management, consulting, monitoring, advisory and other fees and related expenses (including indemnification and similar amounts) accrued in any prior year), or, in each case, any amendment to any Management Agreement so long as any such amendment is not materially disadvantageous (in the good faith judgment of the Board of Directors of Borrower) to the Lenders when taken as a whole, as compared to such Management Agreement as in effect on the Closing Date, and (ii) the reimbursement of Sponsor and its Affiliates and the Advance Shareholders for their reasonable out of pocket expenses and indemnification claims incurred in connection with their providing management services to Holdings, Borrower and its Restricted Subsidiaries,required pursuant to the terms of any Management Agreement,

(f)transactions between or among Parent, Holdings, Borrower and any of its Restricted Subsidiaries to the extent such transaction is not otherwise prohibited by this Agreement, and

(g)payments of principal, interest and fees under the Term Loan FacilitiesFacility to Affiliated Persons (as defined in the applicable Term Loan Credit Agreement) and Sponsor Debt Funds (as defined in the applicable Term Loan Credit Agreement) that are lenders under eitherthe Term Loan Facility solely in their capacities as lenders under suchthe Term Loan Facility.; and

(h)Parent and any Restricted Subsidiary of Parent may issue Stock (other than Stock constituting Disqualified Equity Interests) (and options, warrants and rights thereto).

6.13Use of Proceeds.  Use the proceeds of the Advances for any purpose other than (a) on the ClosingAmendment Effective Date, to pay transactional fees, costs, and expenses incurred in connection with this Agreement, the other Loan Documents, the Term Loan Documents, and the transactions contemplated hereby and thereby, and (b) thereafter, consistent with the terms and conditions hereof, for its lawful and permitted purposes, including Permitted Acquisitions, Permitted Investments, and for the general corporate purposes of Borrower and its Restricted Subsidiaries.

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6.14[Reserved]

6.15Negative Pledge.  Enter into or permit to exist, or permit any of its Restricted Subsidiaries to enter into or permit to exist, any agreement, instrument or other undertaking (each, a “Contractual Obligation”) to which Parent or any of its Restricted Subsidiaries is a party (other than this Agreement or any other Loan Document) that limits the ability of any Loan Party to create, incur, assume or suffer to exist Liens on property of such Loan Party for the benefit of Agent with respect to the Obligations or under the Loan Documents; provided that the foregoing shall not apply to (i) Contractual Obligations which exist on the Amendment Effective Date, (ii) Contractual Obligations which are binding on a Restricted Subsidiary of Parent at the time such Restricted Subsidiary first becomes a Restricted Subsidiary of Parent, so long as such Contractual Obligations were not entered into solely in contemplation of such Person becoming a Restricted Subsidiary of Parent, (iii) Contractual Obligations which arise in connection with any sale, transfer or other disposition permitted by Section 6.4 and relate solely to the assets or Person subject to such sale, transfer or other disposition, (iv) Contractual Obligations which are customary provisions in joint venture agreements and other similar agreements applicable to joint ventures permitted under Section 6.11 and applicable solely to such joint venture entered into in the ordinary course of business, (v) Contractual Obligations which are negative pledges and restrictions on Liens in favor of any holder of Indebtedness permitted under Section 6.1 but solely to the extent any negative pledge relates to the property financed by such Indebtedness, (vi) Contractual Obligations which are customary restrictions on leases, subleases, licenses or asset sale agreements otherwise permitted hereby so long as such restrictions relate to the assets subject thereto, (vii) Contractual Obligations which comprise restrictions imposed by any agreement relating to secured Indebtedness permitted pursuant to Section 6.1 and to the extent that such restrictions apply only to the property or assets securing such Indebtedness or to Parent or any of its Restricted Subsidiaries incurring or guaranteeing such Indebtedness, (viii) Contractual Obligations which are customary provisions restricting subletting or assignment of any lease governing a leasehold interest of Parent or any of its Restricted Subsidiaries, (ix) Contractual Obligations which are customary provisions restricting assignment of any agreement entered into in the ordinary course of business, (x) Contractual Obligations which are restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business, (xi) Contractual Obligations which arise in connection with cash or other deposits permitted under Section 6.1 and 6.2 and limited to such cash or deposit, (xii) any documentation governing Indebtedness permitted hereunder or any documentation governing any Refinancing Indebtedness incurred to refinance any such Indebtedness referenced in this clause (xii); provided that such restrictions shall be no more restrictive in any material respect than the restrictions and conditions in the Loan Documents or with respect to any junior Indebtedness, are market terms at the time of issuance, (xiii) the Term Loan Documents, or (xiv) apply by reasonable application of any applicable laws, rule, regulation or order or are required by any governmental authority having jurisdiction over Parent or any of its Restricted Subsidiaries.

6.14Consignments.  Consign any of its or their Inventory or sell any material portion of its or their Inventory on bill and hold, sale or return, sale on approval, or other conditional terms of sale.

6.15Holding Company.  Permit Holdings to have any material liabilities (other than liabilities arising under the Loan Documents or the Term Loan Facilities or with respect to guarantees of Permitted Indebtedness and liabilities incidental to its ownership of Borrower, including amounts owing to tax, accounting and legal professionals and holding intercompany loans made to Borrower), own any material assets (other than the Stock of Borrower, cash and Cash Equivalents) or engage in any operations or business (other than the ownership of Borrower and activities reasonably related thereto, including administrative activities).

6.16Limitation on Issuance of Preferred Stock.  Issue or sell or enter into any agreement or arrangement for the issuance and sale of, or permit any of its Subsidiaries to issue or sell or enter into any agreement or arrangement for the issuance and sale of, any shares of its Preferred Stock, except that Holdings may issue Permitted Preferred Stock and any Restricted Subsidiary of Borrower may issue Permitted Preferred Stock.

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6.17Limitation on Certain Restrictions on Restricted Subsidiaries.  Create or otherwise cause or suffer to exist or become effective any encumbrance or restriction on the ability of any Restricted Subsidiary of Borrower to (a) pay dividends or make any other distributions on its Stock owned by Borrower or any of its Restricted Subsidiaries, or pay any Indebtedness owed to Borrower or any of its Restricted Subsidiaries, (b) make loans or advances to Borrower or any other Qualified Loan Party, or (c) transfer any of its properties or assets to Borrower or any other Qualified Loan Party, except for such encumbrances or restrictions existing under or by reason of (i) applicable law, (ii) this Agreement and the other Loan Documents, (iii) the Term Loan Credit Agreements and the other Term Loan Documents (in each case, including any Permitted Refinancing thereof) and any other Permitted Indebtedness, (iv) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of Borrower or any of its Restricted Subsidiaries, (v) customary provisions restricting assignment of any licensing agreement (in which Borrower or any of its Restricted Subsidiaries is the licensee), any acquisition or sale agreement permitted by this Agreement or any other contract entered into by Holdings or any of its Restricted Subsidiaries in the ordinary course of business, (vi) restrictions on the transfer of any asset or the conduct of business related thereto pending the close of the sale of such asset, (vii) restrictions on the transfer of any asset subject to a Permitted Lien of the type described in clause (d), (e), (f), (r), (s), (t), (u), (w) or (x) of the definition thereof; (viii) any agreement or instrument governing Permitted Acquired Debt, which encumbrance or restriction is not applicable to any Person or the properties or assets of any Person, other than the Person or the properties or assets of the Person acquired pursuant to the respective Permitted Acquisition or Permitted Investment and so long as the respective encumbrances or restrictions were not created (or made more restrictive) in connection with or in anticipation of the respective Permitted Acquisition or Permitted Investment; (ix) restrictions applicable to any joint venture that is a Restricted Subsidiary existing at the time of the acquisition thereof as a result of a Permitted Investment or a Permitted Acquisition; provided that the restrictions applicable to such joint venture are not made more burdensome, from the perspective of Borrower and its Restricted Subsidiaries, than those as in effect immediately before giving effect to the consummation of the respective Permitted Investment or Permitted Acquisition, (x) customary restrictions on the transfer of joint venture interests; and (xi) restrictions and conditions on any Foreign Subsidiary imposed by the terms of any Permitted Indebtedness of such Foreign Subsidiary.

7.FINANCIAL COVENANT.

7.1Fixed Charge Coverage Ratio.  Borrower covenants and agrees that, as of each Covenant Test Date (if any) during the term of this Agreement, Borroweruntil the payment in full of the Obligations, Parent and its Restricted Subsidiaries will havemaintain a Fixed Charge Coverage Ratio, measured on a fiscal quarter-end basis for the 4 fiscal quarter period most recently ended for which financial statements are required to be delivered pursuant to Section 5.1, of at leastcalculated as of the last day of each Calculation Period ending during any Covenant Testing Period, of not less than 1.00 to 1.00.

8.EVENTS OF DEFAULT.

Any one or more of the following events shall constitute an event of default (each, an “Event of Default”) under this Agreement:

8.1If Borrower fails to pay when due and payable, or when declared due and payable in accordance with the terms hereof, (a) all or any portion of the Obligations consisting of interest, fees, or charges due the Lender Group, reimbursement of Lender Group Expenses, or other amounts (other than any portion thereof constituting principal) constituting Obligations (including any portion thereof that accrues after the commencement of an Insolvency Proceeding, regardless of whether allowed or allowable in whole or in part as a claim in any such Insolvency Proceeding), and such failure continues for a period of 3 Business Days, or (b) all or any portion of the principal of the ObligationsAdvances, or (c) any amount payable to Issuing Lender in reimbursement of any drawing under a Letter of Credit;

8.2If any Loan Party or any of its Restricted Subsidiaries:

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(a)fails to perform or observe any covenant or other agreement contained in any of (i) Sections 3.6, 5.1, 5.2 (except that with respect to the weekly reporting on Schedule 5.2, Borrower shall be allowed a cure period of up to 3 Business Days on not more than 4 occasions during each fiscal yearFiscal Year), 5.3 (as to Borrower), 5.6, 5.7, 5.10, 5.11 or 5.13 of this Agreement, (ii) Sections 6.1 through 6.166.15 of this Agreement, (iii) Section 7 of this Agreement, (which shall, for the avoidance of doubt, be subject to the provisions of Section 9.3), or (iv) Sections 6(c), (j), or (l) of the Security Agreement; or

(b)fails to perform or observe any covenant or other agreement contained in this Agreement, or in any of the other Loan Documents, in each case, other than any such covenant or agreement that is the subject of another provision of this Section 8 (in which event such other provision of this Section 8 shall govern), and such failure continues for a period of 30 days after the earlier of (i) the date on which such failure shall first become known to any executive officer of Borrower or (ii) the date on which written notice thereof is given to Borrower by Agent;

8.3If one or more judgments, orders, or awards for the payment of money involving an aggregate amount in excess of $30,000,000, or more50,000,000 (except to the extent paid or covered by insurance pursuant to which the insurer has not denied coverage in writing) is entered or filed against a Loan Party or any of its Restricted Subsidiaries, or with respect to any of their respective assets, and either (a) there is a period of 3060 consecutive days at any time after the entry of any such judgment, order, or award during which such judgment remains unsatisfied, unvacated, unbonded or for which a stay of enforcement thereof is not in effect, or (b) enforcement proceedings are commenced upon such judgment, order, or award;

8.4If an Insolvency Proceeding is commenced by a Loan Party or any of its Restricted Subsidiaries (other than an Immaterial Subsidiary);

8.5If an Insolvency Proceeding is commenced against a Loan Party or any of its Restricted Subsidiaries (other than an Immaterial Subsidiary), and any of the following events occur:  (a) such Loan Party or such Restricted Subsidiary (other than an Immaterial Subsidiary) consents to the institution of such Insolvency Proceeding against it, (b) the petition commencing the Insolvency Proceeding is not timely controverted, (c) the petition commencing the Insolvency Proceeding is not dismissed within 60 calendar days of the date of the filing thereof, (d) an interim trustee is appointed to take possession of all or any substantial portion of the properties or assets of, or to operate all or any substantial portion of the business of, such Loan Party or such Restricted Subsidiary (other than an Immaterial Subsidiary), or (e) an order for relief shall have been issued or entered therein;

8.6If one or more Loan Parties are enjoined, restrained, or in any way prevented, in each case by court order, from continuing to conduct all or any material part of the business affairs of the Loan Parties, taken as a whole;

8.6[reserved];

8.7If there is a default in or under (a) any of the First Lien Term Loan Documents, or (b) any of the Second Lien Term Loan Documents, or (c) one or more other agreements to which a Loan Party or any of its Restricted Subsidiaries is a party with one or more third Persons relative to a Loan Party’s or any of its Restricted Subsidiaries’ Indebtedness involving an aggregate amount in excess of $30,000,000 or more50,000,000, and in the case of each of clauses (a), and (b) and (c), such default (i) occurs at the final maturity of the obligations thereunder, or (ii) results in a right by First LienTerm Loan Agent or any First LienTerm Loan Lender, Second Lien Agent or any Second Lien Lender oror any such third Person, as the case may be, irrespective of whether exercised, to accelerate the maturity of such Loan Party’s or its Restricted Subsidiary’s obligations thereunder; provided that clauses (i) and (ii) shall not apply to (x) secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness, if such sale or transfer is permitted hereunder and under the documents providing for such

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Indebtedness, or (y) any breach or default that is (I) remedied by Parent, Holdings, Borrower or the applicable Restricted Subsidiary or (II) waived (including in the form of amendment) by the required holders of the applicable item of Indebtedness, in either case, prior to the termination of the Revolver Commitments and the acceleration of the Obligations pursuant to Section 9.1;

8.8If any warranty, representation, or Record made herein or in any other Loan Document or delivered in writing to Agent or any Lender in connection with this Agreement or any other Loan Document proves to be untrue in any material respect (except that such materiality qualifier shall not be applicable to any representations and warranties to the extent that they are already qualified or modified by materiality in the text thereof) as of the date of issuance or making or deemed making thereof;

8.9If the obligation of any Guarantor under the Guaranty to which it is a party is limited or terminated by operation of law or by such Guarantor (other than in a transaction permitted under Section 6.4this Agreement);

8.10If the Security Agreement or any other Loan Document that purports to create a Lien, shall, for any reason, other than the failure of the Agent to take any action within its control, fail or cease to create a valid and perfected and, except to the extent permitted by the terms hereof or thereof, first priority Lien on the Collateral covered thereby, except (i) as a result of a disposition of the applicable Collateral in a transaction permitted under this Agreement, (ii) with respect to Collateral (other than, at any time that the Excess Availability Threshold is not satisfiedis less than the greater of (A) $22,500,000 and (B) 15% of the aggregate amount of the Commitments then in effect, any Borrowing Base Collateral) with an aggregate fair market value of less than $5,000,000, or (iii) at any time that the Excess Availability Threshold is not satisfiedis less than the greater of (A) $22,500,000 and (B) 15% of the aggregate amount of the Commitments then in effect, any Borrowing Base Collateral with an aggregate fair market value of less than $1,000,000;

8.11Any material provisionThe validity or enforceability of any Loan Document shall at any time for any reason be declared to be null and void, or the validity or enforceability thereof shall be contested by a Loan Party or its Restricted Subsidiaries, or aa proceeding shall be commenced by a Loan Party or its Restricted Subsidiaries, or by any Governmental Authority having jurisdiction over a Loan Party or its Restricted Subsidiaries, seeking to establish the invalidity or unenforceability thereof, or a Loan Party or its Restricted Subsidiaries shall deny that such Loan Party or its Restricted Subsidiaries has any liability or obligation purported to be created under any Loan Document;

8.12The occurrence of any of the following events with respect to any Loan Party or any of its ERISA Affiliates: (i) any Loan Party or any ERISA Affiliate fails to make full payment when due of all amounts which, under the provisions of any Pension Plan or the IRC, any Loan Party or any ERISA Affiliate is required to pay as contributions thereto, and such failure (a) is not cured within 30 days and (b) could reasonably be expected to result, individually or in the aggregate, in a Material Adverse Change, (ii) an accumulated funding deficiency or funding shortfall occurs or exists, whether or not waived, with respect to any Pension Plan and such deficiency or shortfall could reasonably be expected to result, individually or in the aggregate, in a Material Adverse Change, (iii) a Termination Event which could reasonably be expected to result, individually or in the aggregate, in a Material Adverse Change, or (iv) any Loan Party or any ERISA Affiliate as employers under one or more Multiemployer Plans makes a complete or partial withdrawal from any such Multiemployer Plan and incurs a withdrawal liability requiring payments that could reasonably be expected to result, individually or in the aggregate, in a Material Adverse Change; or

8.12(i) Any of Parent, Holdings, Borrower or any ERISA Affiliate shall engage in any non-exempt “prohibited transaction” (as defined in Section 406 of ERISA or Section 4975 of the IRC) involving any Plan, (ii) any Plan has failed to meet the minimum funding standards of Section 412 or 430 of the IRC or Section 302 or 303 of ERISA, whether or not waived, or any Lien in favor of the PBGC or a Plan shall arise on the assets of Parent, Holdings, Borrower or any ERISA Affiliate thereof, (iii) a Reportable Event shall occur with respect to, or proceedings shall commence to have a trustee appointed, or a trustee shall be appointed, to

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administer or to terminate, any Plan, (iv) any Plan shall terminate for purposes of Title IV of ERISA, (v) Parent, Holdings, Borrower or any ERISA Affiliate thereof shall incur liability in connection with a withdrawal from, or the insolvency of, a Multiemployer Plan, (vi) a determination has been made that any Plan is considered an at-risk plan within the meaning of Section 430 of the IRC or Section 303 of ERISA, (vii) a Multiemployer Plan is in endangered or critical status under Section 305 of ERISA, (viii) any contribution required to be made with respect to a Plan, Multiemployer Plan or Foreign Pension Plan has not been timely made, (ix) a Plan has an Unfunded Current Liability; or (x) the occurrence of any other event or condition which constitutes an ERISA Event with respect to the Plan, and in each case in clauses (i) through (x)) above, such event or condition, together with all other such events or conditions, if any, has had, or would reasonably be expected to result in a Material Adverse Change; or

8.13The Intercreditor Agreement or any material provision thereof shall cease to be in full force or effect (except in accordance with its terms), or any Loan Party shall deny or disaffirm its obligations thereunder or any Loan Party shall default in the due performance or observance of any term, covenant or agreement on their part to be performed or observed pursuant to the terms thereof.

9.RIGHTS AND REMEDIES.

9.1Rights and Remedies.  Upon the occurrence and during the continuation of an Event of Default, Agent may, and, at the instruction of the Required Lenders, shall (in each case under clauses (a) or (b) by written notice to Borrower), and in addition to any other rights or remedies provided for hereunder or under any other Loan Document or by applicable law, do any one or more of the following:

(a)(i) declare the principal of, and any and all accrued and unpaid interest and fees in respect of, the Advances and all other Obligations (other than the Bank Product Obligations), whether evidenced by this Agreement or by any of the other Loan Documents to be immediately due and payable, whereupon the same shall become and be immediately due and payable and Borrower shall be obligated to repay all of such Obligations in full, without presentment, demand, protest, or further notice or other requirements of any kind, all of which are hereby expressly waived by Borrower, and (ii) direct Borrower to provide (and Borrower agrees that upon receipt of such notice it will provide) Letter of Credit Collateralization to Agent to be held as security for Borrower’s reimbursement obligations for drawings that may subsequently occur under issued and outstanding Letters of Credit;

(b)declare the Revolver Commitments terminated, whereupon the Revolver Commitments shall immediately be terminated together with (i) any obligation of any Lender to make Advances, (ii) the obligation of the Swing Lender to make Swing Loans, and (iii) the obligation of the Issuing Lender to issue Letters of Credit; and

(c)exercise all other rights and remedies available to Agent or the Lenders under the Loan Documents, under applicable law, or in equity;

; provided, that, with respect to any Event of Default resulting solely from failure of Borrower to comply with the financial covenantscovenant set forth in Section 7, neither Agent nor the Required Lenders may exercise the foregoing remedies in this Section 9.1 until the date that is the earlier of (1) the later of (x) 10 days after the day on which financial statements are required to be delivered for the applicable fiscal quarter or (y) 10 days after the occurrence of a Covenant Test Date and (Fiscal Quarter or (2) the date that Agent receives notice that there will not be a SpecifiedCurative Equity Contributioncontribution made for such fiscal quarterFiscal Quarter.

The foregoing to the contrary notwithstanding, upon the occurrence of any Event of Default described in Section 8.4 or Section 8.5, in addition to the remedies set forth above, without any notice to Borrower or any other Person or any act by the Lender Group, the Commitments shall automatically terminate and the Obligations (other than the Bank Product Obligations), inclusive of the principal of, and any and all accrued

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and unpaid interest and fees in respect of, the Loans and all other Obligations (other than the Bank Product Obligations), whether evidenced by this Agreement or by any of the other Loan Documents, shall automatically become and be immediately due and payable and Borrower shall automatically be obligated to repay all of such Obligations in full (including Borrower being obligated to provide (and Borrower agrees that it will provide) (1) Letter of Credit Collateralization to Agent to be held as security for Borrower’s reimbursement obligations in respect of drawings that may subsequently occur under issued and outstanding Letters of Credit and (2) Bank Product Collateralization to be held as security for Borrower’s or its Subsidiaries’ obligations in respect of outstanding Bank Products), without presentment, demand, protest, or notice or other requirements of any kind, all of which are expressly waived by Parent, Holdings and Borrower.

9.2Remedies Cumulative.  The rights and remedies of the Lender Group under this Agreement, the other Loan Documents, and all other agreements shall be cumulative.  The Lender Group shall have all other rights and remedies not inconsistent herewith as provided under the Code, by law, or in equity.  No exercise by the Lender Group of one right or remedy shall be deemed an election, and no waiver by the Lender Group of any Event of Default shall be deemed a continuing waiver.  No delay by the Lender Group shall constitute a waiver, election, or acquiescence by it.

9.3Cure Right.

(a)Subject to the limitations set forth in clauses (d) and (e) below, Borrower may cure (and shall be deemed to have cured) an Event of Default arising out of a breach of the financial covenant set forth in Section 7 (the “Specified Financial Covenant”) if it receives the cash proceeds of an investment of Curative Equity on or before the date (the “Cure Expiration Date”) that is 10 Business Days after the date that is the earlier to occur of (i) the date on which the Compliance Certificate is delivered to Agent in respect of the Fiscal Quarter with respect to which any such breach occurred (the “Specified Quarter”), and (ii) the date on which the Compliance Certificate is required to be delivered to Agent pursuant to Section 5.1 in respect of the Specified Quarter (such earlier date, the “Financial Statement Delivery Date”); provided, that Borrower’s right to so cure an Event of Default (the “Cure Right”) shall be contingent on its timely delivery of such Compliance Certificate and financial statements for the Specified Quarter as required under Section 5.1.

(b)[reserved]

(c)Borrower shall promptly notify Agent of its receipt of any proceeds of Curative Equity (and shall apply the full amount of the Curative Equity received by Borrower to the payment of the Obligations in the manner specified in Section 2.4(e)(ii)).

(d)Any investment of Curative Equity shall be in immediately available funds and shall be in an amount that is sufficient to cause Borrower to be in compliance with the Specified Financial Covenant for the Specified Quarter, calculated for such purpose as if such amount of Curative Equity were additional EBITDA of Parent as at such date (the “Cure Amount”).

9.3Cure Right.(e)Notwithstanding anything to the contrary contained in Section 8.2(a), in the event of any Event of Default under the covenant set forth in Section 7 of this Agreement, until the expiration of the later of (x) 10th day after the date on which the Compliance Certificate is required to be delivered pursuant to Section 5.1 with respect to the applicable fiscal quarter hereunder and (y) the 10th day after the occurrence of the applicable Covenant Test Date, Holdings shall have the right (the “Cure Right”) to receive capital contributions from, or issue or sell common Stock or Qualified Preferred Stock to Parent, and Borrower may apply up to the amount of the net cash proceeds, including through capital contribution of such net cash proceeds by Holdings to Borrower (“Specified Equity Contribution”) received therefrom to increase EBITDA with respect to such applicable fiscal quarter, including each subsequent measurement period that includes such fiscal quarter (such quarter, a “Cure Quarter”) and if, after giving effect to any Specified Equity Contribution, Borrower shall then be in compliance with the requirements of Section 7 of this Agreement, Borrower shall be deemed to have satisfied the requirements set forth therein as of the end of the relevant fiscal

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quarter with the same effect as though there had been no failure to comply therewith as such date, and the applicable breach or default that had occurred shall be deemed cured for purposes of this Agreement; provided that (i) any Specified Equity Contribution made is actually received by Borrower no later than the later of (x) 10 days after the date on which financial statements are required to be delivered with respect to such Cure Quarter under this Agreement, and (y) 10th days after the occurrence of any Covenant Test Date, (ii) the amount of any Specified Equity Contribution applied to increase EBITDA shall not exceed the aggregate amount necessaryherein, regardless of whether an investment of Curative Equity is made prior to the applicable Financial Statement Delivery Date, Borrower’s rights under this Section 9.3 may (i) be exercised not more than 4 times during the term of this Agreement and (ii) not be exercised more than 2 times in any consecutive 4 Fiscal Quarter period.  Regardless of whether an investment of Curative Equity is made prior to the applicable Financial Statement Delivery Date, any amount of Curative Equity that is in excess of the amount sufficient to cause Borrower to be in compliance with Section 7 of this Agreement for the applicable period, and (iii) the proceeds of all Specified Equity Contributions are used to repay Indebtedness under this Agreement (without reduction of Commitments); provided, further, that Borrower shall not be permitted to (x) exercise more than 2 Cure Rights in any 4 consecutive fiscal quarter period or (y) exercise more than 4 Cure Rights during the term of this Agreement.  The parties hereby acknowledge that this Section 9.3 may not be relied on for purposes of calculating any financial ratios other than as applicable to Section 7 (including in connection with calculating EBITDA for purposes of determining baskets and other items governed by reference to EBITDA and for purposes of Section 6.9) and shall not result in any adjustment to EBITDA other than for purposes of compliance with Section 7 of this Agreement and any repayment of Indebtedness with equity proceeds used to effect the Cure Right shall not be treated on a Pro Forma Basis (but rather shall only be given effect from and after the date of such repayment).the Specified Financial Covenant as at such date shall not constitute Curative Equity (and shall not be required to be used to prepay the Obligations in accordance with Section 2.4(e)(ii)).

(f)If Borrower has (i) delivered a certification or a Compliance Certificate conforming to the requirements of Section 9.3(b), and (ii) received proceeds of an investment of Curative Equity in immediately available funds on or before the deadline set forth in Section 9.3(a) and in an amount that is sufficient to cause Borrower to be in compliance with the Specified Financial Covenant for the Specified Quarter, any Event of Default that occurs or has occurred and is continuing as a result of a breach of the Specified Financial Covenant for the Specified Quarter shall be deemed cured with no further action required by the Required Lenders, Agent or any other Person.  Neither Agent nor any Lender shall exercise any remedy under the Loan Documents or applicable law on the basis of an Event of Default caused by the failure to comply with Section 7 until the earlier of (A) the Cure Expiration Date to the extent that Borrower has not exercised the Cure Right and (B) the date that Borrower shall confirm in writing that it does not intend to exercise the Cure Right; provided that, notwithstanding anything to the contrary contained herein, the Lenders (including the Swing Lender and the Issuing Lender) shall have no obligation to make additional loans or otherwise extend additional credit hereunder until Borrower shall have cured all financial covenant violations as provided in this Section 9.3.

(g)To the extent that Curative Equity is received and included in the calculation of the Specified Financial Covenant as deemed EBITDA for any Fiscal Quarter pursuant to this Section 9.3, such Curative Equity shall be deemed to be EBITDA for purposes of determining compliance with the Specified Financial Covenant for subsequent periods that include such Fiscal Quarter.  Curative Equity shall be disregarded for purposes of determining EBITDA for any pricing, financial covenant based conditions or any baskets with respect to the covenants contained in this Agreement.  In addition, notwithstanding any mandatory prepayment of Obligations pursuant to Section 2.4(e)(ii), any Indebtedness so prepaid shall be deemed to remain outstanding for purposes of determining pro forma or actual compliance with the Specified Financial Covenant or for determining any pricing, financial covenant based conditions or baskets with respect to the covenants contained in this Agreement, in each case in the Specified Quarter or subsequent periods that include such Fiscal Quarter.

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10.WAIVERS; INDEMNIFICATION.

10.1Demand; Protest; etc.  Borrower waives demand, protest, notice of protest, notice of default or dishonor, notice of payment and nonpayment, nonpayment at maturity, release, compromise, settlement, extension, or renewal of documents, instruments, chattel paper, and guarantees at any time held by the Lender Group on which Borrower may in any way be liable.

10.2The Lender Group’s Liability for Collateral.  Borrower hereby agrees that:  (a) so long as Agent complies with its obligations, if any, under the Code, the Lender Group shall not in any way or manner be liable or responsible for:  (i) the safekeeping of the Collateral, (ii) any loss or damage thereto occurring or arising in any manner or fashion from any cause, (iii) any diminution in the value thereof, or (iv) any act or default of any carrier, warehouseman, bailee, forwarding agency, or other Person, and (b) all risk of loss, damage, or destruction of the Collateral shall be borne by Borrowerthe Loan Parties.

10.3Indemnification.  Borrower shall pay, indemnify, defend, and hold the Agent-Related Persons and, the Lender-Related Persons, and the Issuing Lender (each, an “Indemnified Person”) harmless (to the fullest extent permitted by law) from and against any and all claims, demands, suits, actions, investigations, proceedings, liabilities, fines, costs, penalties, and damages, and all reasonable fees and disbursements of attorneys, experts, or consultants and all other out-of-pocket costs and expenses (other than Taxes, the intent of the parties being that indemnification be covered by Section 16) actually incurred in connection therewith or in connection with the enforcement of this indemnification (as and when they are incurred and irrespective of whether suit is brought), at any time asserted against, imposed upon, or incurred by any of them (a) in connection with or as a result of or related to the execution and delivery (provided that Borrower shall not be liable for costs and expenses (including attorneys’ fees) of any Lender (other than WFCF) incurred in advising, structuring, drafting, reviewing, administering or syndicating the Loan Documents), enforcement, performance, or administration (including any restructuring or workout with respect hereto) of this Agreement, any of the other Loan Documents, or the transactions contemplated hereby or thereby or the monitoring of Borrower’sParent’s and its Restricted Subsidiaries’ compliance with the terms of the Loan Documents (provided, that the indemnification in this clause (a) shall not extend to (i) disputes solely between or among the Lenders that do not involve any acts or omissions of any Loan Party, or (ii) disputes solely between or among the Lenders and their respective Affiliates that do not involve any acts or omissions of any Loan Party; it being understood and agreed that the indemnification in this clause (a) shall extend to Agent (but not the Lenders unless the dispute involves an act or omission of a Loan Party) relative to disputes between or among Agent on the one hand, and one or more Lenders, or one or more of their Affiliates, on the other hand, or (iii) any Taxes or any costs attributable toclaims for Taxes, which shall be governed by Section 16), other than Taxes which relate to primarily non-Tax Claims, (b) with respect to any actual or prospective investigation, litigation, or proceeding related to this Agreement, any other Loan Document, the making of any Advances or issuance of any Letters of Credit, or the use of the proceeds of the creditAdvances or the Letters of Credit provided hereunder (irrespective of whether any Indemnified Person is a party thereto), or any act, omission, event, or circumstance in any manner related thereto, and (c) in connection with or arising out of any presence or release of Hazardous Materials at, on, under, to or from any assets or properties owned, leased or operated by Borrowerany Loan Party or any of its Restricted Subsidiaries or any Environmental Actions, Environmental Liabilities and Costs or Remedial Actions arising out of any such assets or properties of Borrowerany Loan Party or any of its Restricted Subsidiaries (each and all of the foregoing, the “Indemnified Liabilities”).  The foregoing to the contrary notwithstanding, Borrower shall have no obligation to any Indemnified Person under this Section 10.3 with respect to any Indemnified Liability that a court of competent jurisdiction finally determines to have resulted from the gross negligence or willful misconduct of such Indemnified Person or its officers, directors, employees, attorneys, or agents or a material breach of any Loan Document by such Indemnified Person or its officers, directors, employees, attorneys, or agents.  This provision shall survive the termination of this Agreement and the repayment in full of the Obligations.  If any Indemnified Person makes any payment to any other Indemnified Person with respect to an Indemnified Liability as to which Borrower was required to indemnify the Indemnified Person receiving such payment, the Indemnified Person making such payment is entitled to be indemnified and reimbursed by Borrower with respect thereto.

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11.NOTICES.

Unless otherwise provided in this Agreement, all notices or demands relating to this Agreement or any other Loan Document shall be in writing and (except for financial statements and other informational documents which may be sent by first-class mail, postage prepaid) shall be personally delivered or sent by registered or certified mail (postage prepaid, return receipt requested), overnight courier, electronic mail (at such email addresses as a party may designate in accordance herewith), or telefacsimile.  In the case of notices or demands to Borrowerany Loan Party or Agent, as the case may be, they shall be sent to the respective address set forth below:

If to Borrowerany Loan Party:	c/o ADVANCEPIERRE FOODS, INC.
	9990 Princeton-Glendale Road
	Cincinnati, Ohio 45246
	Attn: Chief Financial Officer
	Fax No. (513) 682-1330
with copies to:	SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
	300 South Grand Avenue , Suite 3400
	Los Angeles, CA 90071
	Attn:  David C. ReamerK. Kristine Dunn, Esq.
	Fax No.:  (213) 621-50525493
If to Agent:	WELLS FARGO CAPITAL FINANCE, LLC
	2450 Colorado Avenue
	Suite 3000 West
	Santa Monica, CA 90404
	Attn:  Loan Portfolio Manager
	Fax No.:  (866) 350-1924
with copies to:	PAUL HASTINGS LLP
	515 S. Flower Street, 25th Floor200 Park Avenue
	Los Angeles, CA 90071New York, NY 10166
	Attn:  Jennifer St. John Francis HilsonYount, Esq.
	Fax No.:  (213212) 996230-33007008

Any party hereto may change the address at which they are to receive notices hereunder, by notice in writing in the foregoing manner given to the other party.  All notices or demands sent in accordance with this Section 11, shall be deemed received on the earlier of the date of actual receipt or 3 Business Days after the deposit thereof in the mail; provided, that (a) notices sent by overnight courier service shall be deemed to have been given when received, (b) notices by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient) and (c) notices by electronic mail shall be deemed received upon the sender’s receipt of an acknowledgment from the intended recipient (such as by the “return receipt requested” function, as available, return email or other written acknowledgment).

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12.CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER; JUDICIAL REFERENCE PROVISION.

(a)THE VALIDITY OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (UNLESS EXPRESSLY PROVIDED TO THE CONTRARY IN ANOTHER LOAN DOCUMENT IN RESPECT OF SUCH OTHER LOAN DOCUMENT), THE CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT HEREOF AND THEREOF, THE RIGHTS OF THE PARTIES HERETO AND THERETO WITH RESPECT TO ALL MATTERS ARISING HEREUNDER OR THEREUNDER OR RELATED HERETO OR THERETO, AND ANY CLAIMS, CONTROVERSIES OR DISPUTES ARISING HEREUNDER OR THEREUNDER OR RELATED HERETO OR THERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

(b)THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE TRIED AND LITIGATED ONLY IN THE STATE AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, FEDERAL COURTS LOCATED IN THE COUNTY OF NEW YORK, STATE OF NEW YORK; PROVIDED, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT AGENT’S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE AGENT ELECTS TO BRING SUCH ACTION OR WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND.  BORROWER AND EACH MEMBER OF THE LENDER GROUP WAIVE, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 12(b).

(c)TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BORROWER AND EACH MEMBER OF THE LENDER GROUP HEREBY WAIVE THEIR RESPECTIVE RIGHTS, IF ANY, TO A JURY TRIAL OF ANY CLAIM, CONTROVERSY, DISPUTE OR CAUSE OF ACTION DIRECTLY OR INDIRECTLY BASED UPON OR ARISING OUT OF ANY OF THE LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS (EACH A “CLAIM”).  BORROWER AND EACH MEMBER OF THE LENDER GROUP REPRESENT THAT EACH HAS REVIEWED THIS WAIVER AND EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.  IN THE EVENT OF LITIGATION, A COPY OF THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.

(d)BORROWER HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN THE COUNTY OF NEW YORK AND THE STATE OF NEW YORK, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT.  EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.  NOTHING IN THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT AGENT MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST ANY LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.

(e)NO CLAIM MAY BE MADE BY ANY PARTY HERETO AGAINST ANY LOAN PARTY, AGENT, THE SWING LENDER, ANY OTHER LENDER, ISSUING LENDER, ANY UNDERLYING ISSUER, OR ANY AFFILIATE, DIRECTOR, OFFICER, EMPLOYEE, COUNSEL, REPRESENTATIVE, AGENT, OR ATTORNEY-IN-FACT OF ANY OF THEM FOR ANY SPECIAL,

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INDIRECT, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOSSES IN RESPECT OF ANY CLAIM FOR BREACH OF CONTRACT OR ANY OTHER THEORY OF LIABILITY ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY ACT, OMISSION, OR EVENT OCCURRING IN CONNECTION THEREWITH, AND EACH PARTY HERETO HEREBY WAIVES, RELEASES, AND AGREES NOT TO SUE UPON ANY CLAIM FOR SUCH DAMAGES, WHETHER OR NOT ACCRUED AND WHETHER OR NOT KNOWN OR SUSPECTED TO EXIST IN ITS FAVOR.

(f)IN THE EVENT ANY LEGAL PROCEEDING IS FILED IN A COURT OF THE STATE OF CALIFORNIA (THE “COURT”) BY OR AGAINST ANY PARTY HERETO IN CONNECTION WITH ANY CLAIM AND THE WAIVER SET FORTH IN CLAUSE (C) ABOVE IS NOT ENFORCEABLE IN SUCH PROCEEDING, THE PARTIES HERETO AGREE AS FOLLOWS:

(i)WITH THE EXCEPTION OF THE MATTERS SPECIFIED IN SUBCLAUSE (ii) BELOW, ANY CLAIM SHALL BE DETERMINED BY A GENERAL REFERENCE PROCEEDING IN ACCORDANCE WITH THE PROVISIONS OF CALIFORNIA CODE OF CIVIL PROCEDURE SECTIONS 638 THROUGH 645.1.  THE PARTIES INTEND THIS GENERAL REFERENCE AGREEMENT TO BE SPECIFICALLY ENFORCEABLE.  VENUE FOR THE REFERENCE PROCEEDING SHALL BE IN THE COUNTY OF LOS ANGELES, CALIFORNIA.

(ii)THE FOLLOWING MATTERS SHALL NOT BE SUBJECT TO A GENERAL REFERENCE PROCEEDING: (A) NON-JUDICIAL FORECLOSURE OF ANY SECURITY INTERESTS IN REAL OR PERSONAL PROPERTY, (B) EXERCISE OF SELF-HELP REMEDIES (INCLUDING SET-OFF OR RECOUPMENT), (C) APPOINTMENT OF A RECEIVER, AND (D) TEMPORARY, PROVISIONAL, OR ANCILLARY REMEDIES (INCLUDING WRITS OF ATTACHMENT, WRITS OF POSSESSION, TEMPORARY RESTRAINING ORDERS, OR PRELIMINARY INJUNCTIONS).  THIS AGREEMENT DOES NOT LIMIT THE RIGHT OF ANY PARTY TO EXERCISE OR OPPOSE ANY OF THE RIGHTS AND REMEDIES DESCRIBED IN CLAUSES (A) - (D) AND ANY SUCH EXERCISE OR OPPOSITION DOES NOT WAIVE THE RIGHT OF ANY PARTY TO PARTICIPATE IN A REFERENCE PROCEEDING PURSUANT TO THIS AGREEMENT WITH RESPECT TO ANY OTHER MATTER.

(iii)UPON THE WRITTEN REQUEST OF ANY PARTY, THE PARTIES SHALL SELECT A SINGLE REFEREE, WHO SHALL BE A RETIRED JUDGE OR JUSTICE.  IF THE PARTIES DO NOT AGREE UPON A REFEREE WITHIN 10 DAYS OF SUCH WRITTEN REQUEST, THEN, ANY PARTY SHALL HAVE THE RIGHT TO REQUEST THE COURT TO APPOINT A REFEREE PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 640(B).  THE REFEREE SHALL BE APPOINTED TO SIT WITH ALL OF THE POWERS PROVIDED BY LAW.  PENDING APPOINTMENT OF THE REFEREE, THE COURT SHALL HAVE THE POWER TO ISSUE TEMPORARY OR PROVISIONAL REMEDIES.

(iv)EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE REFEREE SHALL DETERMINE THE MANNER IN WHICH THE REFERENCE PROCEEDING IS CONDUCTED INCLUDING THE TIME AND PLACE OF HEARINGS, THE ORDER OF PRESENTATION OF EVIDENCE, AND ALL OTHER QUESTIONS THAT ARISE WITH RESPECT TO THE COURSE OF THE REFERENCE PROCEEDING.  ALL PROCEEDINGS AND HEARINGS CONDUCTED BEFORE THE REFEREE, EXCEPT FOR TRIAL, SHALL BE CONDUCTED WITHOUT A COURT REPORTER, EXCEPT WHEN ANY PARTY SO REQUESTS A COURT REPORTER AND A TRANSCRIPT IS ORDERED, A COURT REPORTER SHALL BE USED AND THE REFEREE SHALL BE PROVIDED A COURTESY COPY OF THE TRANSCRIPT.  THE PARTY MAKING SUCH REQUEST SHALL HAVE THE OBLIGATION TO ARRANGE FOR AND PAY THE COSTS OF THE COURT REPORTER, PROVIDED THAT SUCH COSTS, ALONG

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WITH THE REFEREE’S FEES, SHALL ULTIMATELY BE BORNE BY THE PARTY WHO DOES NOT PREVAIL, AS DETERMINED BY THE REFEREE.

(v)THE REFEREE MAY REQUIRE ONE OR MORE PREHEARING CONFERENCES.  THE PARTIES HERETO SHALL BE ENTITLED TO DISCOVERY, AND THE REFEREE SHALL OVERSEE DISCOVERY IN ACCORDANCE WITH THE RULES OF DISCOVERY, AND SHALL ENFORCE ALL DISCOVERY ORDERS IN THE SAME MANNER AS ANY TRIAL COURT JUDGE IN PROCEEDINGS AT LAW IN THE STATE OF CALIFORNIA.

(vi)THE REFEREE SHALL APPLY THE RULES OF EVIDENCE APPLICABLE TO PROCEEDINGS AT LAW IN THE STATE OF CALIFORNIA AND SHALL DETERMINE ALL ISSUES IN ACCORDANCE WITH CALIFORNIA SUBSTANTIVE AND PROCEDURAL LAW.  THE REFEREE SHALL BE EMPOWERED TO ENTER EQUITABLE AS WELL AS LEGAL RELIEF AND RULE ON ANY MOTION WHICH WOULD BE AUTHORIZED IN A TRIAL, INCLUDING MOTIONS FOR DEFAULT JUDGMENT OR SUMMARY JUDGMENT.  THE REFEREE SHALL REPORT HIS OR HER DECISION, WHICH REPORT SHALL ALSO INCLUDE FINDINGS OF FACT AND CONCLUSIONS OF LAW.  THE REFEREE SHALL ISSUE A DECISION AND PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE, SECTION 644, THE REFEREE’S DECISION SHALL BE ENTERED BY THE COURT AS A JUDGMENT IN THE SAME MANNER AS IF THE ACTION HAD BEEN TRIED BY THE COURT.  THE FINAL JUDGMENT OR ORDER FROM ANY APPEALABLE DECISION OR ORDER ENTERED BY THE REFEREE SHALL BE FULLY APPEALABLE AS IF IT HAS BEEN ENTERED BY THE COURT.

(vii)THE PARTIES RECOGNIZE AND AGREE THAT ALL CLAIMS RESOLVED IN A GENERAL REFERENCE PROCEEDING PURSUANT HERETO WILL BE DECIDED BY A REFEREE AND NOT BY A JURY.  AFTER CONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF THEIR OWN CHOICE, EACH PARTY HERETO KNOWINGLY AND VOLUNTARILY AND FOR THEIR MUTUAL BENEFIT AGREES THAT THIS REFERENCE PROVISION SHALL APPLY TO ANY DISPUTE BETWEEN THEM THAT ARISES OUT OF OR IS RELATED TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS.

13.ASSIGNMENTS AND PARTICIPATIONS; SUCCESSORS.

13.1Assignments and Participations.

(a)(i)  Subject to the conditions set forth in clause (a)(ii) below, any Lender may assign and delegate all or any portion of its rights and duties under the Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees (each, an “Assignee”), with the prior written consent (such consent not be unreasonably withheld or delayed) of:

(A)Borrower; provided, that no consent of Borrower shall be required (1) if an Event of Default under Section 8.1, 8.2 (solely with respect to occurrences relating to Section 7), 8.4 or 8.5 has occurred and is continuing, or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Borrower shall be deemed to have consented to a proposed assignment if Borrower has not responded to a request for such consent within 5 Business Days after having received a written request therefor; and

(B)Agent, Swing Lender, and Issuing Lender.

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

(A)no assignment may be made to a natural person,

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(aB)With the prior written consent of Agent and, so long as no Event of Default has occurred and is continuing, Borrower, which consents shall not be unreasonably withheld, delayed or conditioned, and shall not be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees (each an “Assignee”; provided that nono assignment may be made to a Loan Party, an Affiliate of a Loan Party, Sponsor, or any Affiliate of Sponsor shall be permitted to become an Assignee,

) all or any portion(C)the amount of the Obligations, the Commitments and the other rights and obligations of suchthe assigning Lender hereunder and under the other Loan Documents, subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (xI) an assignment or delegation by any Lender to any other Lender or, an Affiliate of any Lender, or a Related Fund of such Lender, or (yII) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000), or (z) the assignment by any Lender of all of its Commitments hereunder

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

(E)the parties to each assignment shall execute and deliver to Agent an Assignment and Acceptance; provided, that Borrower and Agent may continue to deal solely and directly with suchthe assigning Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrower and Agent by such Lender and the Assignee,

(ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii)F)unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent’s separate account, a processing fee in the amount of $3,500., and

(G)the assignee, if it is not an existing Lender, shall deliver to Agent an Administrative Questionnaire in a form approved by Agent (the “Administrative Questionnaire”).

(b)From and after the date that Agent receives an executed Assignment and Acceptance (including, the signature of the Borrower, to the extent its consent is required) and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto; provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a).

(c)By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows:  (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity,

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enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrowerany Loan Party or the performance or observance by Borrowerany Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. An Assignee shall not be entitled to any greater amounts under Section 16 of this Agreement than its respective assigning Lender would have been entitled to under Section 16 of this Agreement.

(d)Immediately upon Agent’s receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom.  The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.

(e)Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a “Participant”) participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a “Lender” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and the Originating Lender’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decreases the amount or postpones the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, and (v) no participation may be sold to a natural person, (vi) no participation shall be sold to a Loan Party, an Affiliate of a Loan Party, Sponsor or any Affiliate of Sponsor, and (vii) all amounts payable by Borrower hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement (and subject to Section 15.12 as if such Participant was a Lender).  The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the

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Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves.

(f)In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Borrowerany Loan Party and its Subsidiaries and their respective businesses. The Borrower hereby designates the Administrative Agent to serve as its agent, solely for purposes of this Section 13.1(f), to maintain a register (the “Register”) on which it will record the names and addresses of the Lenders, and the Agent, as a non-fiduciary agent for Borrower, shall maintain a register showing the principal amounts (and stated interest) of the Obligations owing to each Lender pursuant to the terms hereof from time to time.  Failure to make any such recordation, or any error in such recordation, shall not affect the Borrower’s obligations in respect of such Obligations.  With respect to any Lender, the transfer of an Obligation of such Lender pursuant to Section 2.13(b) or Section 13.1 and the rights to the principal of, and interest on, any Obligation made pursuant to such obligation shall not be effective until such transfer is recorded on the Register maintained by the Administrative Agent with respect to ownership of such Obligation and prior to such recordation all amounts owing to the transferor with respect to such Obligation shall remain owing to the transferor.  The registration of assignment or transfer of all or part of any Obligations shall be recorded by the Administrative Agent on the Register upon and only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment and Assumption pursuant to Section 13.1(b), the appropriate IRS Forms, if applicable, the processing and recordation fee referred to in Section 13.1(d), if applicable, and the consent of the Administrative Agent and, if required, the Borrower.  Upon such acceptance and recordation, the assignee specified therein shall be treated as a Lender for all purposes of this Agreement.  Coincident with the delivery of such an Assignment and Assumption to the Administrative Agent for acceptance and registration of assignment or transfer of all or part of an Obligation, or as soon thereafter as practicable, the assigning or transferor Lender shall surrender the Note (if any) evidencing such Obligation, and thereupon one or more new Notes in the same aggregate principal amount shall be issued to the assigning or transferor Lender and/or the new Lender at the request of any such Lender.  The Borrower agrees to indemnify the Administrative Agent from and against any and all losses, claims, damages and liabilities of whatsoever nature which may be imposed on, asserted against or incurred by the Administrative Agent in performing its duties under this Section 13.1(f) except to the extent incurred by reason of its bad faith, gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable decision). The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 and (subject to the requirements and limitations therein (it being understood that the documentation required under Section 16 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment; provided that such Participant shall not be entitled to receive any greater payment under Sections 2.10 or 2.12(d), with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent the sale of the participation to such participant is made with the Borrower’s consent and such entitlement to receive a greater payment results from a Change in Law

(g)Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.

(h)Agent (as a non-fiduciary agent on behalf of Borrower) shall maintain, or cause to be maintained, a register (the “Register”) on which it enters the name and address of each Lender as the registered owner of its Revolver Commitment (and the principal amount thereof and stated interest thereon) held by such Lender (each, a “Registered Commitment”).  A Registered Commitment (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or

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sale on the Register (and each registered note shall expressly so provide).  Any assignment or sale of all or part of such Registered Commitment (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s).  The entries in the Register shall be conclusive absent manifest error, and Borrower, Agent and the Lenders shall treat the Person in whose name such Registered Commitment (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary.  The Register shall be available for inspection by Borrower and any Lender, at any reasonable time and from time to time upon reasonable notice.

that occurs after the participant acquired the applicable participation.  Each Lender that sells a participation shall, acting solely for this purpose as an(i)In the event that a Lender sells participations in a Registered Commitment, such Lender, as a non-fiduciary agent on behalf of the Borrower, shall maintain (or cause to be maintained) a register on which it enters the name and address of each participantof all participants in the Registered Commitments held by it (and the principal amountsamount (and stated interest thereon) of each participant’s interest in the Loans or other obligations under the Loan Documentsthe portion of such Registered Commitments that is subject to such participations) (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant’s interest in any commitments, loans, letters of credit or its other obligations under any CreditLoan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations.  The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.  For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining aA Registered Commitment (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide).  Any participation of such Registered Commitment (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register.

(g)Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.

13.2Successors.  This Agreement shall bind and inure to the benefit of the respective successors and assigns of each of the parties; provided, that Borrower may not assign this Agreement or any rights or duties hereunder without the Lenders’ prior written consent and any prohibited assignment shall be absolutely void ab initio.  No consent to assignment by the Lenders shall release Borrower from its Obligations.  A Lender may assign this Agreement and the other Loan Documents and its rights and duties hereunder and thereunder pursuant to Section 13.1 and, except as expressly required pursuant to Section 13.1, no consent or approval by Borrower is required in connection with any such assignment.

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14.AMENDMENTS; WAIVERS.

14.1Amendments and Waivers.

(a)No amendment, waiver or other modification of any provision of this Agreement or any other Loan Document (other than the Fee Letter), and no consent with respect to any departure by Borrower or any other Loan Party therefrom, shall be effective unless the same shall be in writing and signed by the Required Lenders (or by Agent at the written request of the Required Lenders) and the Loan Parties that are party thereto and then any such waiver or consent shall be effective, but only in the specific instance and for the specific purpose for which given; provided, that no such waiver, amendment, or consent shall, unless in writing and signed by all of the Lenders directly affected thereby and the Loan Parties that are party thereto, do any of the following:

(i)increase the amount of or extend the expiration date of any Commitment of any Lender or amend, modify, or eliminate the last sentence of Section 2.4(c)(i),

(ii)postpone or delay any date fixed by this Agreement or any other Loan Document for any payment of principal, interest, fees, or other amounts due hereunder or under any other Loan Document,

(iii)reduce the principal of, or the rate of interest on, any loan or other extension of credit hereunder, or reduce any fees or other amounts payable hereunder or under any other Loan Document (except (y) in connection with the waiver of applicability of Section 2.6(c) (which waiver shall be effective with the written consent of the Required Lenders), and (z) that any amendment or modification of defined terms used in the financial covenants in this Agreement shall not constitute a reduction in the rate of interest or a reduction of fees for purposes of this clause (iii)),

(iv)amend, modify, or eliminate this Section or any provision of this Agreement providing for consent or other action by all Lenders,

(v)amend, modify, or eliminate Section 3.1 or 3.2,

(vi)amend, modify, or eliminate Section 15.11,

(vii)other than as permitted by Section 15.11, release Agent’s Lien in and to all or substantially all of the Collateral,

(viii)amend, modify, or eliminate the definitions of “Required Lenders”, “Supermajority Lenders” or “Pro Rata Share”,

(ix)contractually subordinate any of Agent’s Liens (other than (A) in order to confirm the priority of a Lien securing Permitted Purchase Money Indebtedness or a Capital Lease permitted under this Agreement, in each case, in respect of the assets that are the subject of such financing, (B) with respect to the Term Loan Priority Collateral in a manner consistent with the Intercreditor Agreement, or (C) as permitted by Section 15.11),

(x)release Borrower or, other than in connection with a merger, liquidation, dissolution or sale of such Person expressly permitted by the terms hereof or the other Loan Documents, or as permitted by Section 15.11, any Guarantor from any obligation for the payment of money or consent to the assignment or transfer by Borrower or any Guarantor of any of its rights or duties under this Agreement or the other Loan Documents,

(xi)amend, modify, or eliminate any of the provisions of Section 2.4(b)(i) or (ii), or

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(xii)amend, modify, or eliminate Section 13.1(a) to permit a Loan Party, an Affiliate of a Loan Party, Sponsor, or an Affiliate of Sponsor to be permitted to become an Assignee.

(b)No amendment, waiver, modification, elimination, or consent shall amend, without written consent of Agent, Borrower and the Supermajority Lenders, amend, modify, or eliminate the definition of Borrowing Base or any of the defined terms (including the definitions of Eligible Accounts, Eligible Credit Card Receivables, Eligible Inventory, and “Rent Reserve”Reserves) that are used in such definition to the extent that any such change results in more credit being made available to Borrower based upon the Borrowing Base, but not otherwise, or the definition of Maximum Revolver Amount, or change Section 2.1(c);

(c)No amendment, waiver, modification, or consent shall amend, modify, eliminate, or waive (i) the definition of, or any of the terms or provisions of, the Fee Letter, without the written consent of Agent and Borrower (and shall not require the written consent of any of the Lenders), and (ii) any provision of Section 15 pertaining to Agent, or any other rights or duties of Agent under this Agreement or the other Loan Documents, without the written consent of Agent, Borrower, and the Required Lenders.

(d)No amendment, waiver, modification, or consent shall amend, modify, waive, or eliminate any provision of this Agreement or the other Loan Documents pertaining to Issuing Lender, or any other rights or duties of Issuing Lender under this Agreement or the other Loan Documents, without the written consent of Issuing Lender, Agent, Borrower, and the Required Lenders.

(e)No amendment, waiver, modification, or consent shall amend, modify, waive, or eliminate any provision of this Agreement or the other Loan Documents pertaining to Swing Lender, or any other rights or duties of Swing Lender under this Agreement or the other Loan Documents, without the written consent of Swing Lender, Agent, Borrower, and the Required Lenders.

(f)Anything in this Section 14.1 to the contrary notwithstanding, any amendment, waiver, modification, elimination, or consent of or with respect to any provision of this Agreement or any other Loan Document may be entered into without the consent of, or over the objection of, any Defaulting Lender, other than any of the matters governed by Section 14.1(a)(i) through (iii) that adversely affect such Lender.

(g)Borrower shall have the right to amend and update the Schedules to this Agreement from time to time upon written notice to Agent so long as updates to such Schedules are expressly contemplated by the terms of this Agreement

14.2Replacement of Certain Lenders.

(a)If (i) any action to be taken by the Lender Group or Agent hereunder requires the consent, authorization, or agreement of all Lenders or all Lenders affected thereby and if such action has received the consent, authorization, or agreement of the Required Lenders but not of all Lenders or all Lenders affected thereby, or (ii) any Lender makes a claim for compensation under Section 16, then Borrower or Agent, upon at least 5 Business Days prior irrevocable notice, may permanently replace any Lender that failed to give its consent, authorization, or agreement (a “Non-Consenting Lender”) or any Lender that made a claim for compensation (a “Tax Lender”) with one or more Replacement Lenders, and the Non-Consenting Lender or Tax Lender, as applicable, shall have no right to refuse to be replaced hereunder.  Such notice to replace the Non-Consenting Lender or Tax Lender, as applicable, shall specify an effective date for such replacement, which date shall not be later than 15 Business Days after the date such notice is given.

(b)Prior to the effective date of such replacement, the Non-Consenting Lender or Tax Lender, as applicable, and each Replacement Lender shall execute and deliver an Assignment and Acceptance, subject only to the Non-Consenting Lender or Tax Lender, as applicable, being repaid in full its share of the

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outstanding Obligations (without any premium or penalty of any kind whatsoever, but including (i) all interest, fees and other amounts that may be due in payable in respect thereof, and (ii) an assumption of its Pro Rata Share of participations in the Letters of Credit, and (iii) Funding Losses).  If the Non-Consenting Lender or Tax Lender, as applicable, shall refuse or fail to execute and deliver any such Assignment and Acceptance prior to the effective date of such replacement, Agent may, but shall not be required to, execute and deliver such Assignment and Acceptance in the name or and on behalf of the Non-Consenting Lender or Tax Lender, as applicable, and irrespective of whether Agent executes and delivers such Assignment and Acceptance, the Non-Consenting Lender or Tax Lender, as applicable, shall be deemed to have executed and delivered such Assignment and Acceptance.  The replacement of any Non-Consenting Lender or Tax Lender, as applicable, shall be made in accordance with the terms of Section 13.1.  Until such time as one or more Replacement Lenders shall have acquired all of the Obligations, the Commitments, and the other rights and obligations of the Non-Consenting Lender or Tax Lender, as applicable, hereunder and under the other Loan Documents, the Non-Consenting Lender or Tax Lender, as applicable, shall remain obligated to make the Non-Consenting Lender’s or Tax Lender’s, as applicable, Pro Rata Share of Revolving Loans and to purchase a participation in each Letter of Credit, in an amount equal to its Pro Rata Share of participations in such Letters of Credit.

14.3No Waivers; Cumulative Remedies.  No failure by Agent or any Lender to exercise any right, remedy, or option under this Agreement or any other Loan Document, or delay by Agent or any Lender in exercising the same, will operate as a waiver thereof.  No waiver by Agent or any Lender will be effective unless it is in writing, and then only to the extent specifically stated.  No waiver by Agent or any Lender on any occasion shall affect or diminish Agent’s and each Lender’s rights thereafter to require strict performance by Borrowerthe Loan Parties of any provision of this Agreement.  Agent’s and each Lender’s rights under this Agreement and the other Loan Documents will be cumulative and not exclusive of any other right or remedy that Agent or any Lender may have.

15.AGENT; THE LENDER GROUP.

15.1Appointment and Authorization of Agent.  Each Lender hereby designates and appoints WFCF as its agent under this Agreement and the other Loan Documents and each Lender hereby irrevocably authorizes (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to designate, appoint and authorize) Agent to execute and deliver each of the other Loan Documents on its behalf and to take such other action on its behalf under the provisions of this Agreement and each other Loan Document and to exercise such powers and perform such duties as are expressly delegated to Agent by the terms of this Agreement or any other Loan Document, together with such powers as are reasonably incidental thereto.  Agent agrees to act as agent for and on behalf of the Lenders (and the Bank Product Providers) on the conditions contained in this Section 15.  Any provision to the contrary contained elsewhere in this Agreement or in any other Loan Document notwithstanding, Agent shall not have any duties or responsibilities, except those expressly set forth herein or in the other Loan Documents, nor shall Agent have or be deemed to have any fiduciary relationship with any Lender (or Bank Product Provider), and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against Agent.  Without limiting the generality of the foregoing, the use of the term “agent” in this Agreement or the other Loan Documents with reference to Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law.  Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only a representative relationship between independent contracting parties.  Each Lender hereby further authorizes (and by its entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to authorize) Agent to act as the secured party under each of the Loan Documents that create a Lien on any item of Collateral.  Except as expressly otherwise provided in this Agreement, Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions that Agent expressly is entitled to take or assert under or pursuant to this Agreement and the other Loan Documents.  Without limiting the generality of the foregoing, or of any other provision of the Loan Documents that provides rights or powers to Agent, Lenders agree that Agent shall have the right to exercise the following powers as long as this Agreement remains in effect:  (a) maintain, in

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accordance with its customary business practices, ledgers and records reflecting the status of the Obligations, the Collateral, payments and proceeds of Collateral, and related matters, (b) execute or file any and all financing or similar statements or notices, amendments, renewals, supplements, documents, instruments, proofs of claim, notices and other written agreements with respect to the Loan Documents, or take any other action with respect to any Collateral or Loan Documents which may be necessary to perfect, and maintain perfected, the security interests and Liens upon Collateral pursuant to the Loan Documents, (c) make Advances, for itself or on behalf of Lenders, as provided in the Loan Documents, (d) exclusively receive, apply, and distribute payments and proceeds of Collateral as provided in the Loan Documents, (e) open and maintain such bank accounts and cash management arrangements as Agent deems necessary and appropriate in accordance with the Loan Documents for the foregoing purposes, (f) perform, exercise, and enforce any and all other rights and remedies of the Lender Group with respect to Borrowerany Loan Party or its Subsidiaries, the Obligations, the Collateral, or otherwise related to any of same as provided in the Loan Documents, and (g) incur and pay such Lender Group Expenses as Agent may deem necessary or appropriate for the performance and fulfillment of its functions and powers pursuant to the Loan Documents.

15.2Delegation of Duties.  Agent may execute any of its duties under this Agreement or any other Loan Document by or through agents, employees or attorneys in fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties.  Agent shall not be responsible for the negligence or misconduct of any agent or attorney in fact that it selects as long as such selection was made without gross negligence or willful misconduct.

15.3Liability of Agent.  None of the Agent-Related Persons shall (a) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or any other Loan Document or the transactions contemplated hereby (except for its own gross negligence or willful misconduct), or (b) be responsible in any manner to any of the Lenders (or Bank Product Providers) for any recital, statement, representation or warranty made by Borrowerany Loan Party or any of its Subsidiaries or Affiliates, or any officer or director thereof, contained in this Agreement or in any other Loan Document, or in any certificate, report, statement or other document referred to or provided for in, or received by Agent under or in connection with, this Agreement or any other Loan Document, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document, or for any failure of Borrowerany Loan Party or its Subsidiaries or any other party to any Loan Document to perform its obligations hereunder or thereunder.  No Agent-Related Person shall be under any obligation to any Lender (or Bank Product Provider) to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document, or to inspect the books and records or properties of Borrowerany Loan Party or its Subsidiaries.  Agent shall not be required to take any action that, in its opinion or in the opinion of its counsel, may expose it to liability or that is contrary to any Loan Document or applicable law or regulation.

15.4Reliance by Agent.  Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, telefacsimile or other electronic method of transmission, telex or telephone message, statement or other document or conversation believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including counsel to Borrower or counsel to any Lender), independent accountants and other experts selected by Agent.  Agent shall be fully justified in failing or refusing to take any action under this Agreement or any other Loan Document unless Agent shall first receive such advice or concurrence of the Lenders as it deems appropriate and until such instructions are received, Agent shall act, or refrain from acting, as it deems advisable.  If Agent so requests, it shall first be indemnified to its reasonable satisfaction by the Lenders (and, if it so elects, the Bank Product Providers) against any and all liability and expense that may be incurred by it by reason of taking or continuing to take any such action.  Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement or any other Loan Document in accordance with a request or consent of the requisiteRequired Lenders and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Lenders (and Bank Product Providers).

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15.5Notice of Default or Event of Default.  Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, except with respect to defaults in the payment of principal, interest, fees, and expenses required to be paid to Agent for the account of the Lenders and, except with respect to Events of Default of which Agent has actual knowledge, unless Agent shall have received written notice from a Lender or Borrower referring to this Agreement, describing such Default or Event of Default, and stating that such notice is a “notice of default.”  Agent promptly will notify the Lenders of its receipt of any such notice or of any Event of Default of which Agent has actual knowledge.  If any Lender obtains actual knowledge of any Event of Default, such Lender promptly shall notify the other Lenders and Agent of such Event of Default.  Each Lender shall be solely responsible for giving any notices to its Participants, if any.  Subject to Section 15.4, Agent shall take such action with respect to such Default or Event of Default as may be requested by the Required Lenders in accordance with Section 9; provided, however, that unless and until Agent has received any such request, Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable.

15.6Credit Decision.  Each Lender (and Bank Product Provider) acknowledges that none of the Agent-Related Persons has made any representation or warranty to it, and that no act by Agent hereinafter taken, including any review of the affairs of Borrower and its Subsidiaries or Affiliates, shall be deemed to constitute any representation or warranty by any Agent-Related Person to any Lender (or Bank Product Provider).  Each Lender represents (and by its entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to represent) to Agent that it has, independently and without reliance upon any Agent-Related Person and based on such due diligence, documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, prospects, operations, property, financial and other condition and creditworthiness of Borrower or any other Person party to a Loan Document, and all applicable bank regulatory laws relating to the transactions contemplated hereby, and made its own decision to enter into this Agreement and to extend credit to Borrower.  Each Lender also represents (and by its entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to represent) that it will, independently and without reliance upon any Agent-Related Person and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Loan Documents, and to make such investigations as it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness of Borrower or any other Person party to a Loan Document.  Except for notices, reports, and other documents expressly herein required to be furnished to the Lenders by Agent, Agent shall not have any duty or responsibility to provide any Lender (or Bank Product Provider) with any credit or other information concerning the business, prospects, operations, property, financial and other condition or creditworthiness of Borrower or any other Person party to a Loan Document that may come into the possession of any of the Agent-Related Persons.  Each Lender acknowledges (and by its entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to acknowledge) that Agent does not have any duty or responsibility, either initially or on a continuing basis (except to the extent, if any, that is expressly specified herein) to provide such Lender (or Bank Product Provider) with any credit or other information with respect to Borrower, its Affiliates or any of their respective business, legal, financial or other affairs, and irrespective of whether such information came into Agent’s or its Affiliates’ or representatives’ possession before or after the date on which such Lender became a party to this Agreement (or such Bank Product Provider entered into a Bank Product Agreement).

15.7Costs and Expenses; Indemnification.  Agent may incur and pay Lender Group Expenses to the extent Agent reasonably deems necessary or appropriate for the performance and fulfillment of its functions, powers, and obligations pursuant to the Loan Documents, including court costs, attorneys fees and expenses, fees and expenses of financial accountants, advisors, consultants, and appraisers, costs of collection by outside collection agencies, auctioneer fees and expenses, and costs of security guards or insurance premiums paid to maintain the Collateral, whether or not Borrower is obligated to reimburse Agent or Lenders for such expenses pursuant to this Agreement or otherwise.  Agent is authorized and directed to deduct and retain sufficient amounts from payments or proceeds of Collateral received by Agent to reimburse Agent for

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such out-of-pocket costs and expenses prior to the distribution of any amounts to Lenders (or Bank Product Providers).  In the event Agent is not reimbursed for such costs and expenses by Borrower or itsthe Loan Parties and their Subsidiaries, each Lender hereby agrees that it is and shall be obligated to pay to Agent such Lender’s ratable share thereof.  Whether or not the transactions contemplated hereby are consummated, each of the Lenders, on a ratable basis, shall indemnify and defend the Agent-Related Persons (to the extent not reimbursed by or on behalf of Borrower and without limiting the obligation of Borrower to do so) from and against any and all Indemnified Liabilities; provided, that no Lender shall be liable for the payment to any Agent-Related Person of any portion of such Indemnified Liabilities resulting solely from such Person’s gross negligence or willful misconduct nor shall any Lender be liable for the obligations of any Defaulting Lender in failing to make an Advance or other extension of credit hereunder.  Without limitation of the foregoing, each Lender shall reimburse Agent upon demand for such Lender’s ratable share of any costs or out of pocket expenses (including attorneys, accountants, advisors, and consultants fees and expenses) incurred by Agent in connection with the preparation, execution, delivery, administration, modification, amendment, or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, any other Loan Document, or any document contemplated by or referred to herein, to the extent that Agent is not reimbursed for such expenses by or on behalf of Borrower.  The undertaking in this Section shall survive the payment of all Obligations hereunder and the resignation or replacement of Agent.

15.8Agent in Individual Capacity.  WFCF and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, provide Bank Products to, acquire equity interests in, and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with Borrowerany Loan Party and its Subsidiaries and Affiliates and any other Person party to any Loan Document as though WFCF were not Agent hereunder, and, in each case, without notice to or consent of the other members of the Lender Group.  The other members of the Lender Group acknowledge (and by its entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to acknowledge) that, pursuant to such activities, WFCF or its Affiliates may receive information regarding Borrowera Loan Party or its Affiliates or any other Person party to any Loan Documents that is subject to confidentiality obligations in favor of Borrowersuch Loan Party or such other Person and that prohibit the disclosure of such information to the Lenders (or Bank Product Providers), and the Lenders acknowledge (and by its entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to acknowledge) that, in such circumstances (and in the absence of a waiver of such confidentiality obligations, which waiver Agent will use its reasonable best efforts to obtain), Agent shall not be under any obligation to provide such information to them.  The terms “Lender” and “Lenders” include WFCF in its individual capacity.

15.9Successor Agent.  Agent may resign as Agent upon 30 days (10 days if an Event of Default has occurred and is continuing) prior written notice to the Lenders (unless such notice is waived by the Required Lenders) and Borrower (unless such notice is waived by Borrower) and without any notice to the Bank Product Providers.  If Agent resigns under this Agreement, the Required Lenders shall be entitled, with (so long as no Event of Default has occurred and is continuing) the consent of Borrower (such consent not to be unreasonably withheld, delayed, or conditioned), appoint a successor Agent for the Lenders (and the Bank Product Providers).  If, at the time that Agent’s resignation is effective, it is acting as the Issuing Lender or the Swing Lender, such resignation shall also operate to effectuate its resignation as the Issuing Lender or the Swing Lender, as applicable, and it shall automatically be relieved of any further obligation to issue Letters of Credit, to cause the Underlying Issuer to issue Letters of Credit, or to make Swing Loans.  If no successor Agent is appointed prior to the effective date of the resignation of Agent, Agent may appoint, after consulting with the Lenders and Borrower, a successor Agent.  If Agent has materially breached or failed to perform any material provision of this Agreement or of applicable law, the Required Lenders may agree in writing to remove and replace Agent with a successor Agent from among the Lenders with (so long as no Event of Default has occurred and is continuing) the consent of Borrower (such consent not to be unreasonably withheld, delayed, or conditioned).  In any such event, upon the acceptance of its appointment as successor Agent hereunder, such successor Agent shall succeed to all the rights, powers, and duties of the retiring Agent and the term “Agent” shall mean such successor Agent and the retiring Agent’s appointment, powers, and

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duties as Agent shall be terminated.  After any retiring Agent’s resignation hereunder as Agent, the provisions of this Section 15 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Agent under this Agreement.  If no successor Agent has accepted appointment as Agent by the date which is 30 days following a retiring Agent’s notice of resignation, the retiring Agent’s resignation shall nevertheless thereupon become effective and the Lenders shall perform all of the duties of Agent hereunder until such time, if any, as the Lenders appoint a successor Agent as provided for above.

15.10Lender in Individual Capacity.  Any Lender and its respective Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, provide Bank Products to, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with Borrowerany Loan Party and its Subsidiaries and Affiliates and any other Person party to any Loan Documents as though such Lender were not a Lender hereunder without notice to or consent of the other members of the Lender Group (or the Bank Product Providers).  The other members of the Lender Group acknowledge (and by its entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to acknowledge) that, pursuant to such activities, such Lender and its respective Affiliates may receive information regarding Borrowera Loan Party or its Affiliates or any other Person party to any Loan Documents that is subject to confidentiality obligations in favor of Borrowersuch Loan Party or such other Person and that prohibit the disclosure of such information to the Lenders, and the Lenders acknowledge (and by its entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to acknowledge) that, in such circumstances (and in the absence of a waiver of such confidentiality obligations, which waiver such Lender will use its reasonable best efforts to obtain), such Lender shall not be under any obligation to provide such information to them.

15.11Collateral Matters.

(a)The Lenders hereby irrevocably authorize (and by its entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to authorize) Agent to release any Lien on any Collateral (and Agent agrees with Borrower that it will, at Borrower’s written request, release any such Lien) (i) upon the termination of the Commitments and payment and satisfaction in full by Borrower of all of the Obligations, (ii) constituting (A) property being sold or disposed of if a release is required or desirable in connection therewith and if Borrower certifies to Agent that the sale or disposition is permitted under Section 6.4 (and Agent may rely conclusively on any such certificate, without further inquiry), or (B) property constituting Term Loan Priority Collateral which is subject to Liens of the type described in clause (q) of the definition of Permitted Liens (and, so long as no Default or Event of Default has occurred and is continuing and the each of the Term Loan AgentsAgent has released (or concurrently releases) its Lien on such property, Agent shall, at the written request of Borrower, release the Agent’s Liens on such property (other than any property constituting Borrowing Base Collateral) subject to such Liens), (iii) constituting property in which Borrower orno Loan Party nor any of its Restricted Subsidiaries owned noany interest at the time Agent’s Lien was granted nor at any time thereafter, (iv) constituting property leased or licensed to Borrowera Loan Party or its Subsidiaries under a lease or license that has expired or is terminated in a transaction permitted under this Agreement, (v) constituting property owned by any Unrestricted Subsidiary of Borrower permitted to be designated as such pursuant to the terms of this Agreement (and, so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and each of the Term Loan AgentsAgent has released (or concurrently releases) its Lien on such property, Agent shall, at the written request of Borrower, release the Agent’s Liens on such property), (vvi) constituting property subject to a Sale/Leaseback Transaction permitted hereunder or property subject to (or which will become subject to promptly following such release) Permitted Liens of the type described in clauses (f) and (t) of the definition thereof, or (vivii) in connection with a credit bid or purchase authorized under this Section 15.11.  The Lenders hereby further irrevocably authorize (and by its entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to authorize) Agent to release from its Guaranty (x) any Unrestricted Subsidiary permitted to be designated as such pursuant to the terms of this Agreement or (y) any Restricted Subsidiary that is the subject of a Permitted Disposition, and so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and each of the Term Loan AgentsAgent has released (or concurrently releases) such Unrestricted Subsidiary or such

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Restricted Subsidiary, as the case may be, from its guarantee, if any, of the applicable Term Loan Facility, Agent shall, at the written request of Borrower, release such Unrestricted Subsidiary or such Restricted Subsidiary, as the case may be, from its Guaranty.  The Loan Parties and the Lenders hereby irrevocably authorize (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to authorize) Agent, based upon the instruction of the Required Lenders, to (a) consent to the sale of,, credit bid or purchase (either directly or indirectly through one or more entities) all or any portion of the Collateral at any sale thereof conducted under the provisions of the Bankruptcy Code, including under Section 363 of the Bankruptcy Code, (b) credit bid or purchase (either directly or indirectly through one or more entities) all or any portion of the Collateral at any sale or other disposition thereof conducted under the provisions of the Code, including pursuant to Sections 9-610 or 9-620 of the Code, or (c) credit bid or purchase (either directly or indirectly through one or more entities) all or any portion of the Collateral at any other sale or foreclosure conducted or consented to by Agent in accordance with applicable law in any judicaljudicial action or proceeding or by the exercise of any legal or equitable remedy.  In connection with any such credit bid or purchase, (i) the Obligations owed to the Lenders and the Bank Product Providers shall be entitled to be, and shall be, credit bid on a ratable basis (with Obligations with respect to contingent or unliquidated claims being estimated for such purpose if the fixing or liquidation thereof would not impair or unduly delay the ability of Agent to credit bid or purchase at such sale or other disposition of the Collateral and, if such contingent or unliquidated claims cannot be estimated without impairing or unduly delaying the ability of Agent to credit bid at such sale or other disposition, then such claims shall be disregarded, not credit bid, and not entitled to any interest in the Collateral that is the subject of such credit bid or purchase) and the Lenders and the Bank Product Providers whose Obligations are credit bid shall be entitled to receive interests (ratably based upon the proportion of their Obligations credit bid in relation to the aggregate amount of Obligations so credit bid) in the Collateral that is the subject of such credit bid or purchase (or in the Stock of the any entities that are used to consummate such credit bid or purchase), and (ii) Agent, based upon the instruction of the Required Lenders, may accept non-cash consideration, including debt and equity securities issued by any entities used to consummate such credit bid or purchase and in connection therewith Agent may reduce the Obligations owed to the Lenders and the Bank Product Providers (ratably based upon the proportion of their Obligations credit bid in relation to the aggregate amount of Obligations so credit bid) based upon the value of such non-cash consideration.  Except as provided above, Agent will not execute and deliver a release of any Lien on any Collateral without the prior written authorization of (y) if the release is of all or substantially all of the Collateral, all of the Lenders (without requiring the authorization of the Bank Product Providers), or (z) otherwise, the Required Lenders (without requiring the authorization of the Bank Product Providers).  Upon request by Agent or Borrower at any time, the Lenders will (and if so requested, the Bank Product Providers will) confirm in writing Agent’s authority to release any such Liens on particular types or items of Collateral pursuant to this Section 15.11; provided, that (1) anything to the contrary contained in any of the Loan Documents notwithstanding, Agent shall not be required to execute any document or take any action necessary to evidence such release on terms that, in Agent’s opinion, could expose Agent to liability or create any obligation or entail any consequence other than the release of such Lien without recourse, representation, or warranty, and (2) such release shall not in any manner discharge, affect, or impair the Obligations or any Liens (other than those expressly released) upon (or obligations of Borrower in respect of) any and all interests retained by Borrower, including, the proceeds of any sale, all of which shall continue to constitute part of the Collateral.  Each Lender further hereby irrevocably authorizes (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to irrevocably authorize) Agent, at its option and in its sole discretion, to subordinate (by contract or otherwise) or release any Lien granted to or held by Agent under any Loan Document to the holder of any Permitted Lien on such property if such Permitted Lien secures Permitted Purchase Money Indebtedness (and, upon the request of Borrower, Agent shall subordinate or release any such Lien so long as no Event of Default has occurred and is continuing and all Liens on such property securing either or both of the Term Loan FacilitiesFacility are also subordinated or released, as the case may be).

(b)Agent shall have no obligation whatsoever to any of the Lenders (or the Bank Product Providers) (i) to verify or assure that the Collateral exists or is owned by Borrower ora Loan Party or any of its Subsidiaries or is cared for, protected, or insured or has been encumbered, (ii) to verify or assure that

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Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, or enforced or are entitled to any particular priority, (iii) to verify or assure that any particular items of Collateral meet the eligibility criteria applicable in respect thereof, (iv) to impose, maintain, increase, reduce, implement, or eliminate any particular reserve hereunder or to determine whether the amount of any reserve is appropriate or not, or (v) to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to Agent pursuant to any of the Loan Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, subject to the terms and conditions contained herein, Agent may act in any manner it may deem appropriate, in its sole discretion given Agent’s own interest in the Collateral in its capacity as one of the Lenders and that Agent shall have no other duty or liability whatsoever to any Lender (or Bank Product Provider) as to any of the foregoing, except as otherwise expressly provided herein.

15.12Restrictions on Actions by Lenders; Sharing of Payments.

(a)Each of the Lenders agrees that it shall not, without the express written consent of Agent, and that it shall, to the extent it is lawfully entitled to do so, upon the written request of Agent, set off against the Obligations, any amounts owing by such Lender to Borrowerany Loan Party or its Subsidiaries or any deposit accounts of Borrowerany Loan Party or its Subsidiaries now or hereafter maintained with such Lender.  Each of the Lenders further agrees that it shall not, unless specifically requested to do so in writing by Agent, take or cause to be taken any action, including, the commencement of any legal or equitable proceedings to enforce any Loan Document against Borrower or any Guarantor or to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral.

(b)If, at any time or times any Lender shall receive (i) by payment, foreclosure, setoff, or otherwise, any proceeds of Collateral or any payments with respect to the Obligations, except for any such proceeds or payments received by such Lender from Agent pursuant to the terms of this Agreement, or (ii) except as otherwise expressly contemplated by the terms of this Agreement, payments from Agent in excess of such Lender’s Pro Rata Share of all such distributions by Agent, such Lender promptly shall (A) turn the same over to Agent, in kind, and with such endorsements as may be required to negotiate the same to Agent, or in immediately available funds, as applicable, for the account of all of the Lenders and for application to the Obligations in accordance with the applicable provisions of this Agreement, or (B) purchase, without recourse or warranty, an undivided interest and participation in the Obligations owed to the other Lenders so that such excess payment received shall be applied ratably as among the Lenders in accordance with their Pro Rata Shares; provided, however, that to the extent that such excess payment received by the purchasing party is thereafter recovered from it, those purchases of participations shall be rescinded in whole or in part, as applicable, and the applicable portion of the purchase price paid therefor shall be returned to such purchasing party, but without interest except to the extent that such purchasing party is required to pay interest in connection with the recovery of the excess payment.

15.13Agency for Perfection.  Agent hereby appoints each other Lender (and each Bank Product Provider) as its agent (and each Lender hereby accepts (and by its entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to accept) such appointment) for the purpose of perfecting the Agent’s Liens in assets which, in accordance with Article 8 or Article 9, as applicable, of the Code can be perfected by possession or control.  Should any Lender obtain possession or control of any such Collateral, such Lender shall notify Agent thereof, and, promptly upon Agent’s request therefor shall deliver possession or control of such Collateral to Agent or in accordance with Agent’s instructions.

15.14Payments by Agent to the Lenders.  All payments to be made by Agent to the Lenders (or the Bank Product Providers) shall be made by bank wire transfer of immediately available funds pursuant to such wire transfer instructions as each party may designate for itself by written notice to Agent.  Concurrently with each such payment, Agent shall identify whether such payment (or any portion thereof) represents principal, premium, fees, or interest of the Obligations.

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15.15Concerning the Collateral and Related Loan Documents.  Each member of the Lender Group authorizes and directs Agent to enter into this Agreement and the other Loan Documents.  Each member of the Lender Group agrees (and by its entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to agree) that any action taken by Agent in accordance with the terms of this Agreement or the other Loan Documents relating to the Collateral and the exercise by Agent of its powers set forth therein or herein, together with such other powers that are reasonably incidental thereto, shall be binding upon all of the Lenders (and such Bank Product Providers).

15.16Audits andField Examination Reports; Confidentiality; Disclaimers by Lenders; Other Reports and Information.  By becoming a party to this Agreement, each Lender:

(a)is deemed to have requested that Agent furnish such Lender, promptly after it becomes available, a copy of each field audit or examination report respecting Borrowerany Loan Party or its Subsidiaries (each a “Report” and collectively, “Reports”) prepared by or at the request of Agent, and Agent shall so furnish each Lender with such Reports,

(b)expressly agrees and acknowledges that Agent does not (i) make any representation or warranty as to the accuracy of any Report, and (ii) shall not be liable for any information contained in any Report,

(c)expressly agrees and acknowledges that the Reports are not comprehensive audits or examinations, that Agent or other party performing any audit orfield examination will inspect only specific information regarding Borrower and itsthe Loan Parties and their Subsidiaries and will rely significantly upon Borrower’s and itsthe Loan Parties’ and their Subsidiaries’ books and records, as well as on representations of Borrower’sthe Loan Parties’ personnel,

(d)agrees to keep all Reports and other material, non-public information regarding Borrower and itsthe Loan Parties and their Subsidiaries and their operations, assets, and existing and contemplated business plans in a confidential manner in accordance with Section 17.9, and

(e)without limiting the generality of any other indemnification provision contained in this Agreement, agrees:  (i) to hold Agent and any other Lender preparing a Report harmless from any action the indemnifying Lender may take or fail to take or any conclusion the indemnifying Lender may reach or draw from any Report in connection with any loans or other credit accommodations that the indemnifying Lender has made or may make to Borrower, or the indemnifying Lender’s participation in, or the indemnifying Lender’s purchase of, a loan or loans of Borrower, and (ii) to pay and protect, and indemnify, defend and hold Agent, and any such other Lender preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including, attorneys’ fees and costs) incurred by Agent and any such other Lender preparing a Report as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender.

In addition to the foregoing:  (x) any Lender may from time to time request of Agent in writing that Agent provide to such Lender a copy of any report or document provided by Borrowerany Loan Party or its Subsidiaries to Agent that has not been contemporaneously provided by Borrowerany Loan Party or such Subsidiary to such Lender, and, upon receipt of such request, Agent promptly shall provide a copy of same to such Lender, (y) to the extent that Agent is entitled, under any provision of the Loan Documents, to request additional reports or information from Borrowerany Loan Party or its Subsidiaries, any Lender may, from time to time, reasonably request Agent to exercise such right as specified in such Lender’s notice to Agent, whereupon Agent promptly shall request of Borrower the additional reports or information reasonably specified by such Lender, and, upon receipt thereof from Borrowerany Loan Party or such Subsidiary, Agent promptly shall provide a copy of same to such Lender, and (z) any time that Agent renders to Borrower a statement regarding the Loan Account, Agent shall send a copy of such statement to each Lender.

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15.17Several Obligations; No Liability.  Notwithstanding that certain of the Loan Documents now or hereafter may have been or will be executed only by or in favor of Agent in its capacity as such, and not by or in favor of the Lenders, any and all obligations on the part of Agent (if any) to make any credit available hereunder shall constitute the several (and not joint) obligations of the respective Lenders on a ratable basis, according to their respective Commitments, to make an amount of such credit not to exceed, in principal amount, at any one time outstanding, the amount of their respective Commitments.  Nothing contained herein shall confer upon any Lender any interest in, or subject any Lender to any liability for, or in respect of, the business, assets, profits, losses, or liabilities of any other Lender.  Each Lender shall be solely responsible for notifying its Participants of any matters relating to the Loan Documents to the extent any such notice may be required, and no Lender shall have any obligation, duty, or liability to any Participant of any other Lender.  Except as provided in Section 15.7, no member of the Lender Group shall have any liability for the acts of any other member of the Lender Group.  No Lender shall be responsible to Borrower or any other Person for any failure by any other Lender (or Bank Product Provider) to fulfill its obligations to make credit available hereunder, nor to advance for such Lender (or Bank Product Provider) or on its behalf, nor to take any other action on behalf of such Lender (or Bank Product Provider) hereunder or in connection with the financing contemplated herein.

16.WITHHOLDING TAXES.

16.1Payments.  All payments made by Borrowerany Loan Party hereunder or under any note or other Loan Document will be made without setoff, counterclaim, or other defense.  In addition, all such payments will be made free and clear of, and without deduction or withholding for, any present or future Indemnified Taxes except to the extendas otherwise required by applicable law, and in the event any deduction or withholding of Indemnified Taxes is required, Borrower shall comply with the next sentence of this Section 16.1.  If any Indemnified Taxes are so levied or imposed, Borrower agrees to pay the full amount of such Indemnified Taxes and such additional amounts as may be necessary so that every payment of all amounts due under this Agreement, any note, or Loan Document, including any amount paid pursuant to this Section 16.1 after withholding or deduction for or on account of any Indemnified Taxes, will not be less than the amount provided for herein; provided, that Borrower shall not be required to increase any such amounts to the extent that the increase in such amount payable results from Agent’s or such Lender’s own willful misconduct or gross negligence (as finally determined by a court of competent jurisdiction).  Borrower willthe applicable Loan Party shall make the requisite withholding, timely pay over to the applicable Governmental Authority the withheld Tax, and furnish to Agent as promptly as possiblesoon as practicable after the date the payment of any Indemnifiedsuch Tax is due pursuant to applicable law, certified copies of tax receipts or other reasonable documentation evidencing such payment by Borrower.  Borrower agrees to pay, without duplication, any present or future stamp, documentary, excise or similar Taxes that arise from any payment made hereunder or from the execution, delivery, performance, recordation, or filing of, or otherwise with respect to this Agreement or any other Loan Document (“Other Taxes”), except for any such Other Taxes that are imposed with respect to an assignment.the Loan Parties, a copy of the tax return reporting such payment, or other evidence of such payment reasonably satisfactory to Agent.  Furthermore, if any such deducted or withheld Tax is an Indemnified Tax, the sum payable by the Loan Parties shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section 16.1), the applicable recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.  The Loan Parties will timely pay any Other Taxes in accordance with applicable law or, at Agent’s option, reimburse Agent for the payment of such Other Taxes.  The Loan Parties shall jointly and severally indemnify each Indemnified Person (as defined in Section 10.3) (collectively a “Tax Indemnitee”) for the full amount of Indemnified Taxes arising in connection with this Agreement or any other Loan Document or breach thereof by any Loan Party (including, without limitation, any Indemnified Taxes imposed or asserted on, or attributable to, amounts payable under this Section 16) imposed on, or paid by, such Tax Indemnitee and all reasonable costs and expenses related thereto (including fees and disbursements of attorneys and other tax professionals), as and when they are incurred and irrespective of whether suit is brought, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority (other than Indemnified Taxes and

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additional amounts that a court of competent jurisdiction finally determines to have resulted from the gross negligence or willful misconduct of such Tax Indemnitee).  The obligations of the Loan Parties under this Section 16 shall survive the termination of this Agreement, the resignation and replacement of the Agent, and the repayment of the Obligations.

16.2Status of Lenders; Exemptions.

(a)If a Lender or Participant is entitled to claim an exemption or reduction from United States withholding tax, such Lender or Participant agrees with and in favor of Agent and Borrower, to deliver to Agent and Borrower (or, in the case of a Participant, to the Lender granting the participation only) on or prior to the date on which such Lender or Participant become a L enderLender or Participant under the Agreement and from time to time thereafter upon the reasonable request of the Borrower or Agent such properly completed and executed documentation reasonably requested by Borrower or Agent as will permit payments made under any Loan Document to be made without such withholding or at a reduced rate of such withholding, including whichever of the following is applicable:

(i)if such Lender or Participant is entitled to claim an exemption from United States withholding tax pursuant to the portfolio interest exception, (A) a statement of the Lender or Participant, signed under penalty of perjury, that it is not a (I) a “bank” as described in Section 881(c)(3)(A) of the IRC, (II) a 10% shareholder of Borrower (within the meaning of Section 871(h)(3)(B) of the IRC), or (III) a controlled foreign corporation related to Borrower within the meaning of Section 864(d)(4) of the IRC, and (B) a properly completed and executed IRS Form W-8BEN, Form W-8BEN-E, or Form W-8IMY (with proper attachments, as applicable);

(ii)if such Lender or Participant is entitled to claim an exemption from, or a reduction of, withholding tax under a United States tax treaty, a properly completed and executed copy of IRS Form W-8BEN or Form W-8BEN-E;

(iii)if such Lender or Participant is entitled to claim that interest paid under this Agreement is exempt from United States withholding tax because it is effectively connected with a United States trade or business of such Lender or Participant, a properly completed and executed copy of IRS Form W-8ECI;

(iv)if such Lender or Participant is entitled to claim that interest paid under this Agreement is exempt from United States withholding tax because such Lender or Participant serves as an intermediary, a properly completed and executed copy of IRS Form W-8IMY (with proper attachments); or

(v)a properly completed and executed copy of any other form or forms, including IRS Form W-9, as may be required under the IRC or other laws of the United States as a condition to exemption from, or reduction of, United States withholding or backup withholding tax.

(b)Each Lender or Participant shall provide new forms (or successor forms) upon the expiration or obsolescence of any previously delivered forms and to promptly notify Agent (or, in the case of a Participant, to the Lender granting the participation only) of any change in circumstances which would modify or render invalid any claimed exemption or reduction.

(c)If a Lender or Participant is entitled to claim an exemption from withholding tax in a jurisdiction other than the United States, such Lender or such Participant agrees with and in favor of Agent and Borrower, to deliver to Agent and Borrower (or, in the case of a Participant, to the Lender granting the participation only) any such form or forms, as may be required under the laws of such jurisdiction as a condition to exemption from, or reduction of, foreign withholding or backup withholding tax on or prior to the date that such Lender or Participant becomes a Lender or Participant, but only if such Lender or such Participant is legally able to deliver such forms, or the providing of or delivery of such forms in the Lender’s

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reasonable judgment would not subject such Lender to any material unreimbursed cost or expense or materially prejudice the legal or commercial position of such Lender (or its Affiliates), provided, that nothing in this Section 16.2(c) shall require a Lender or Participant to disclose any information that it deems to be confidential (including without limitation, its tax returns).  Each Lender and each Participant shall provide new forms (or successor forms) upon the expiration or obsolescence of any previously delivered forms and to promptly notify Agent and Borrower (or, in the case of a Participant, to the Lender granting the participation only) of any change in circumstances which would modify or render invalid any claimed exemption or reduction.

(d)If a Lender or Participant claims exemption from, or reduction of, withholding tax and such Lender or Participant sells, assigns, grants a participation in, or otherwise transfers all or part of the Obligations of Borrower to such Lender or Participant, such Lender or Participant agrees to notify Agent and Borrower (or, in the case of a sale of a participation interest, to the Lender granting the participation only) of the percentage amount in which it is no longer the beneficial owner of Obligations of Borrower to such Lender or Participant.  To the extent of such percentage amount, Agent and Borrower will treat such Lender’s or such Participant’s documentation provided pursuant to Section 16.2(a) or 16.2(c) as no longer valid.  With respect to such percentage amount, such Participant or Assignee shall provide new documentation, pursuant to Section 16.2(a) or 16.2(c), if applicable.  Borrower agrees that each Participant shall be entitled to the benefits of this Section 16 with respect to its participation in any portion of the Commitments and the Obligations so long as, provided, that such Participant (i) complies with the obligations set forth in this Section 16 with respect thereto and provided that aas if such Participant were a Lender, (ii) agrees to be subject to the provisions of Section 14.2 as if it were an assignee under Section 13.1 of this Agreement, and (iii) shall not be entitled to any additional amounts pursuant to this Section 16 in excess of the amount to which such Lender granting the participation would have been entitled.  Each Lender that sells a Participation agrees to use reasonable efforts to cooperate with Borrower to effectuate the provisions of Section 14.2 with respect to any Participant.

(e)If a payment made to a Lender under any Loan Document would be subject to U.S. federal income withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the CodeIRC, as applicable), such Lender shall deliver to the Borrower and Agent (or, in the case of a Participant, to the Lender granting the participation only) at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or Agent (or, in the case of a Participant, to the Lender granting the participation) such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the CodeIRC) and such additional documentation reasonably requested by Borrower or Agent (or, in the case of a Participant, to the Lender granting the participation) as may be necessary for the Borrower and Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (e), “FATCA” shall include any amendments made to FATCA and any regulations promulgated thereunder after the date of this Agreement.

(f)Each Agent and each Lender that is a U.S. Person shall deliver to the Borrower and Agent (or, in the case of an Agent, the Borrower) on or prior to the date on which such Agent or Lender becomes an Agent or Lender under this Agreement (and from time to time thereafter upon the request of the Borrower or Agent, as applicable) two copies of U.S. Internal Revenue Service Form W-9 (or successor form) certifying that such Agent or Lender is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrower and Agent, as applicable, to determine whether or not such Agent or Lender is subject to United States federal backup withholding tax or information reporting requirements.  Each Agent and each Lender shall provide new forms (or successor forms) upon the expiration or obsolescence of any previously delivered forms and to promptly notify Borrower and Agent of any change in circumstances which would modify or render invalid any claimed exemption or reduction.

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(g)Each party’s obligations under this Section 16.2 shall survive the resignation or replacement of Agent or any assignment of rights by, or replacement of, a Lender, the termination of the Obligations and the repayment, satisfaction or discharge of all obligations under any Loan Document.

16.3Reductions.

(a)If a Lender or a Participant is entitled to a reduction in thesubject to an applicable withholding tax, Agent or Borrower (or, in the case of a Participant, to the Lender granting the participation) may withhold from any interest payment to such Lender or such Participant an amount equivalent to the applicable withholding tax after taking into account such reduction.  If the forms or other documentation required by Section 16.2(a) or 16.2(c) are not delivered to Agent or Borrower (or, in the case of a Participant, to the Lender granting the participation), then Agent or Borrower (or, in the case of a Participant, to the Lender granting the participation) may withhold from any interest payment to such Lender or such Participant not providing such forms or other documentation an amount equivalent to the applicable withholding tax.

(b)If the IRS or any other Governmental Authority of the United States or other jurisdiction asserts a claim that Agent or Borrower (or, in the case of a Participant, that the Lender granting the participation) did not properly withhold tax from amounts paid to or for the account of any Lender or any Participant due to a failure on the part of the Lender or any Participant (because the appropriate form was not delivered, was not properly executed, or because such Lender failed to notify Agent or Borrower (or such Participant failed to notify the Lender granting the participation) of a change in circumstances which rendered the exemption from, or reduction of, withholding tax ineffective, or for any other reason) such Lender shall indemnify and hold Agent harmless (or, in the case of a Participant, such Participant shall indemnify and hold the Lender granting the participation harmless) for all amounts paid, directly or indirectly, by Agent (or, in the case of a Participant, to the Lender granting the participation), as tax or otherwise, including penalties and interest, and including any taxes imposed by any jurisdiction on the amounts payable to Agent (or, in the case of a Participant, to the Lender granting the participation only) under this Section 16, together with all costs and expenses (including attorneys fees and expenses).  The obligation of the Lenders and the Participants under this subsection shall survive the payment of all Obligations and the resignation or replacement of Agent.

16.4Refunds.

(a)If Agent or a Lender determines, in its sole discretion, that it has received a refund of any Indemnified Taxes or Other Taxes with respect to which Borrower hasthe Loan Parties have paid additional amounts pursuant to this Section 16, so long as no Default or Event of Default has occurred and is continuing, it shall pay over such refund to Borrower on behalf of the Loan Parties (but only to the extent of payments made, or additional amounts paid, by Borrowerthe Loan Parties under this Section 16 with respect to Indemnified Taxes or Other Taxes giving rise to such a refund), net of all out-of-pocket expenses of Agent or such Lender and without interest (other than any interest paid by the relevant Governmental Authority with respect to such a refund); provided, that Borrowerthe Loan Parties, upon the request of Agent or such Lender, agrees to repay the amount paid over to Borrowerthe Loan Parties (plus any penalties, interest or other charges, imposed by the relevant Governmental Authority, other than such penalties, interest or other charges imposed as a result of the willful misconduct or gross negligence of Agent or such Lender hereunder as finally determined by a court of competent jurisdiction) to Agent or such Lender in the event Agent or such Lender is required to repay such refund to such Governmental Authority.  Notwithstanding anything in this Agreement to the contrary, this Section 16 shall not be construed to require Agent or any Lender to make available its tax returns (or any other information which it deems confidential) to Borrowerthe Loan Parties or any other Person.

(b)Subject to the first sentence of Section 16.4(a), upon the reasonable request of Borrower (and at Borrower’s expense), a Lender or Agent, as applicable, shall in its sole discretion, exercised in good faith, use reasonable efforts to cooperate with Borrower with a view to obtaining a refund of any Indemnified Taxes with respect to which Borrower has paid additional amounts pursuant to this Section 16 and

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which Borrower, on advice of counsel, reasonably believes were not correctly or legally asserted by the relevant Governmental Authority; provided that neither Agent nor any Lender shall be required to (i) take any action that Agent or such Lender determines, in its sole discretion, would have an adverse effect on Agent or such Lender or (ii) disclose any information that it deems to be confidential.

(c)Each Lender agrees that, as promptly as practicable after the occurrence of any event giving rise to the operation of Section 16 with respect to such Lender, it will use reasonable, good faith efforts (subject to overall policy considerations of such Lender) to eliminate or reduce any additional payment which may thereafter accrue, including by designating another lending office or assigning its rights and obligations hereunder to another of its offices, branches or Affiliates with the object of avoiding the consequences of such event; provided, that such designation or other action is made on terms that, in the sole judgment of such Lender, cause such Lender and its lending office(s) to suffer no economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section shall affect or postpone any of the obligations or rights of Borrower or any Lender pursuant to this Section 16.

(d)Notwithstanding anything in this Agreement to the contrary, this Section 16 shall not be construed to require Agent or any Lender to make available its tax returns (or any other information which it deems confidential) to Loan Parties or any other Person or require Agent or any Lender to pay any amount to an indemnifying party pursuant to Section 16.4, the payment of which would place Agent or such Lender (or their Affiliates) in a less favorable net after-Tax position than such Person would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid.

17.GENERAL PROVISIONS.

17.1Effectiveness.  This Agreement shall be binding and deemed effective when executed by Borrower, Agent, and each Lender whose signature is provided for on the signature pages hereof.

17.2Section Headings.  Headings and numbers have been set forth herein for convenience only.  Unless the contrary is compelled by the context, everything contained in each Section applies equally to this entire Agreement.

17.3Interpretation.  Neither this Agreement nor any uncertainty or ambiguity herein shall be construed against the Lender Group or Borrower, whether under any rule of construction or otherwise.  On the contrary, this Agreement has been reviewed by all parties and shall be construed and interpreted according to the ordinary meaning of the words used so as to accomplish fairly the purposes and intentions of all parties hereto.

17.4Severability of Provisions.  Each provision of this Agreement shall be severable from every other provision of this Agreement for the purpose of determining the legal enforceability of any specific provision.

17.5Bank Product Providers.  Each Bank Product Provider in its capacity as such shall be deemed a third party beneficiary hereof and of the provisions of the other Loan Documents for purposes of any reference in a Loan Document to the parties for whom Agent is acting.  Agent hereby agrees to act as agent for such Bank Product Providers and, by virtue of entering into a Bank Product Agreement, the applicable Bank Product Provider shall be automatically deemed to have appointed Agent as its agent and to have accepted the benefits of the Loan Documents.  It is understood and agreed that the rights and benefits of each Bank Product Provider under the Loan Documents consist exclusively of such Bank Product Provider’s being a beneficiary of the Liens and security interests (and, if applicable, guarantees) granted to Agent and the right to share in payments and proceeds of the Collateral as more fully set forth herein.  In addition, each Bank Product Provider, by virtue of entering into a Bank Product Agreement, shall be automatically deemed to have agreed

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that Agent shall have the right, but shall have no obligation, to establish, maintain, relax, or release reserves in respect of the Bank Product Obligations and that if reserves are established there is no obligation on the part of Agent to determine or insure whether the amount of any such reserve is appropriate or not.  In connection with any such distribution of payments or proceeds of Collateral, Agent shall be entitled to assume no amounts are due or owing to any Bank Product Provider unless such Bank Product Provider has provided a written certification (setting forth a reasonably detailed calculation) to Agent as to the amounts that are due and owing to it and such written certification is received by Agent a reasonable period of time prior to the making of such distribution.  Agent shall have no obligation to calculate the amount due and payable with respect to any Bank Products, but may rely upon the written certification of the amount due and payable from the applicable Bank Product Provider.  In the absence of an updated certification, Agent shall be entitled to assume that the amount due and payable to the applicable Bank Product Provider is the amount last certified to Agent by such Bank Product Provider as being due and payable (less any distributions made to such Bank Product Provider on account thereof).  Borrower may obtain Bank Products from any Bank Product Provider, although Borrower is not required to do so.  Borrower acknowledges and agrees that no Bank Product Provider has committed to provide any Bank Products and that the providing of Bank Products by any Bank Product Provider is in the sole and absolute discretion of such Bank Product Provider.  Notwithstanding anything to the contrary in this Agreement or any other Loan Document, no provider or holder of any Bank Product shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of the other Loan Documents, including as to any matter relating to the Collateral or the release of Collateral or Guarantors.

17.6Debtor-Creditor Relationship.  The relationship between the Lenders and Agent, on the one hand, and the Loan Parties, on the other hand, is solely that of creditor and debtor.  No member of the Lender Group has (or shall be deemed to have) any fiduciary relationship or duty to any Loan Party arising out of or in connection with the Loan Documents or the transactions contemplated thereby, and there is no agency or joint venture relationship between the members of the Lender Group, on the one hand, and the Loan Parties, on the other hand, by virtue of any Loan Document or any transaction contemplated therein.

17.7Counterparts; Electronic Execution.  This Agreement may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, when taken together, shall constitute but one and the same Agreement.  Delivery of an executed counterpart of this Agreement by telefacsimile or other electronic method of transmission shall be equally as effective as delivery of an original executed counterpart of this Agreement.  Any party delivering an executed counterpart of this Agreement by telefacsimile or other electronic method of transmission also shall deliver an original executed counterpart of this Agreement but the failure to deliver an original executed counterpart shall not affect the validity, enforceability, and binding effect of this Agreement.  The foregoing shall apply to each other Loan Document mutatis mutandis.

17.8Revival and Reinstatement of Obligations.  If any member of the Lender Group or any Bank Product Provider repays, refunds, restores, or returns in whole or in part, any payment or property (including any proceeds of Collateral) previously paid or transferred to such member of the Lender Group or such Bank Product Provider in full or partial satisfaction of any Obligation or on account of any other obligation of any Loan Party under any Loan Document or any Bank Product Agreement, because the payment, transfer, or the incurrence of the obligation so satisfied is asserted or declared to be void, voidable, or otherwise recoverable under any law relating to creditors’ rights, including provisions of the Bankruptcy Code relating to fraudulent transfers, preferences, or other voidable or recoverable obligations or transfers (each, a “Voidable Transfer”), or because such member of the Lender Group or Bank Product Provider elects to do so on the reasonable advice of its counsel in connection with a claim that the payment, transfer, or incurrence is or may be a Voidable Transfer, then, as to any such Voidable Transfer, or the amount thereof that such member of the Lender Group or Bank Product Provider elects to repay, restore, or return (including pursuant to a settlement of any claim in respect thereof), and as to all reasonable costs, expenses, and attorneys’ fees of such

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member of the Lender Group or Bank Product Provider related thereto, (i) the liability of the Loan Parties with respect to the amount or property paid, refunded, restored, or returned will automatically and immediately be revived, reinstated, and restored and will exist and (ii) Agent’s Liens securing such liability shall be effective, revived, and remain in full force and effect, in each case, as fully as if such Voidable Transfer had never been made.  If, prior to any of the foregoing, (A) Agent’s Liens shall have been released or terminated or (B) any provision of this Agreement shall have been terminated or cancelled, Agent’s Liens, or such provision of this Agreement, shall be reinstated in full force and effect and such prior release, termination, cancellation or surrender shall not diminish, release, discharge, impair or otherwise affect the obligation of any Loan Party in respect of such liability or any Collateral securing such liability.  This provision shall survive the termination of this Agreement and the repayment in full of the Obligations.

17.9Confidentiality.

(a)Agent and Lenders each individually (and not jointly or jointly and severally) agree that material, non-public information regarding Borrower and its Subsidiaries, their operations, assets, and existing and contemplated business plans (“Confidential Information”) shall be treated by Agent and the Lenders in a confidential manner, and shall not be disclosed by Agent and the Lenders to Persons who are not parties to this Agreement, except:  (i) to attorneys for and other advisors, accountants, auditors, and consultants to any member of the Lender Group and to employees, directors and officers of any member of the Lender Group (the Persons in this clause (i), “Lender Group Representatives”) on a “need to know” basis in connection with this Agreement and the transactions contemplated hereby and on a confidential basis, (ii) to Subsidiaries and Affiliates of any member of the Lender Group (including the Bank Product Providers), provided that any such Subsidiary or Affiliate shall have agreed to receive such information hereunder subject to the terms of this Section 17.9, (iii) as may be required by regulatory authorities so long as such authorities are informed of the confidential nature of such information, (iv) as may be required by statute, decision, or judicial or administrative order, rule, or regulation; provided that (x) prior to any disclosure under this clause (iv), the disclosing party agrees to provide Borrower with prior notice thereof, to the extent that it is practicable to do so and to the extent that the disclosing party is permitted to provide such prior notice to Borrower pursuant to the terms of the applicable statute, decision, or judicial or administrative order, rule, or regulation and (y) any disclosure under this clause (iv) shall be limited to the portion of the Confidential Information as may be required by such statute, decision, or judicial or administrative order, rule, or regulation, (v) as may be agreed to in advance in writing by Borrower, (vi) as requested or required by any Governmental Authority pursuant to any subpoena or other legal process, provided, that, (x) prior to any disclosure under this clause (vi) the disclosing party agrees to provide Borrower with prior written notice thereof, to the extent that it is practicable to do so and to the extent that the disclosing party is permitted to provide such prior written notice to Borrower pursuant to the terms of the subpoena or other legal process and (y) any disclosure under this clause (vi) shall be limited to the portion of the Confidential Information as may be required by such Governmental Authority pursuant to such subpoena or other legal process, (vii) as to any such information that is or becomes generally available to the public (other than as a result of prohibited disclosure by Agent or the Lenders or the Lender Group Representatives), (viii) in connection with any assignment, participation or pledge of any Lender’s interest under this Agreement, provided that prior to receipt of Confidential Information any such assignee, participant, or pledgee shall have agreed in writing to receive such Confidential Information either subject to the terms of this Section 17.9 or pursuant to confidentiality requirements substantially similar to those contained in this Section 17.9 (and such Person may disclose such Confidential Information to Persons employed or engaged by them as described in clause (i) above), (ix) in connection with any litigation or other adversary proceeding involving parties hereto which such litigation or adversary proceeding involves claims related to the rights or duties of such parties under this Agreement or the other Loan Documents; provided, that, prior to any disclosure to any Person (other than any Loan Party, Agent, any Lender, any of their respective Affiliates, or their respective counsel) under this clause (ix) with respect to litigation involving any Person (other than Borrower, Agent, any Lender, any of their respective Affiliates, or their respective counsel), the disclosing party agrees to provide Borrower with prior written notice thereof, and (x) in connection with, and to the extent reasonably necessary for, the exercise of any secured creditor remedy under this Agreement or under any other Loan Document.

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(b)Anything in this Agreement to the contrary notwithstanding, Agent and Lenders may provide information concerning the existence, type, size, pricing and agency titles of this Agreement to loan syndication and pricing reporting services. or in its marketing or promotional materials, with such information to consist of deal terms and other information customarily found in such publications or marketing or promotional materials and may otherwise use the name, logos, and other insignia of Borrower or the other Loan Parties and the Commitments provided hereunder in any “tombstone” or other advertisements, on its website or in other marketing materials of Agent and Lenders.

17.10Lender Group Expenses.  Borrower agrees to pay any and all Lender Group Expenses on the earlier of (a) the first day of each calendar month (provided that if such Lender Group Expenses are not charged to the Loan Account by Agent pursuant to Section 2.6(d) on the first day of such month, such Lender Group Expenses shall be payable pursuant to clause (b) hereof) or (b) promptly after the date on which demand therefor is made by Agent and agrees that its obligations contained in this Section 17.10 shall survive payment or satisfaction in full of all other Obligations.

17.10Survival. All representations and warranties made by the Loan Parties in the Loan Documents and in the certificates or other instruments delivered in connection with or pursuant to this Agreement or any other Loan Document shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of the Loan Documents and the making of any Advances and issuance of any Letters of Credit, regardless of any investigation made by any such other party or on its behalf and notwithstanding that Agent, Issuing Lender, or any Lender may have had notice or knowledge of any Default or Event of Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect as long as the principal of, or any accrued interest on, any Advance or any fee or any other amount payable under this Agreement is outstanding or unpaid or any Letter of Credit is outstanding and so long as the Commitments have not expired or been terminated.

17.11USA PATRIOT Act. Each Lender that is subject to the requirements of the Patriot Act hereby notifies Borrowerthe Loan Parties that pursuant to the requirements of the Act, it is required to obtain, verify and record information that identifies Borrowereach Loan Party, which information includes the name and address of Borrowereach Loan Party and other information that will allow such Lender to identify Borrowereach Loan Party in accordance with the Patriot Act.  In addition, if Agent is required by law or regulation or if Agent reasonably believes it is required by law or regulation to do sointernal policies, Agent shall have the right to periodically conduct (a) Patriot Act searches, OFAC/PEP searches, and customary individual background checks for the Loan Parties and (b) OFAC/PEP searches and customary individual background checks for the Loan Parties’ senior management and key principals, and Borrowereach Loan Party agrees to cooperate in respect of the conduct of such searches and further agrees that the reasonable costs and charges for such searches shall constitute Lender Group Expenses hereunder and be for the account of Borrower.

17.12Integration.  This Agreement, together with the other Loan Documents, reflects the entire understanding of the parties with respect to the transactions contemplated hereby and shall not be contradicted or qualified by any other agreement, oral or written, before the date hereof.  The foregoing to the contrary notwithstanding, all Bank Product Agreements, if any, are independent agreements governed by the written provisions of such Bank Product Agreements, which will remain in full force and effect, unaffected by any repayment, prepayments, acceleration, reduction, increase or change in the terms of any credit extended hereunder, except as otherwise expressly provided in such Bank Product Agreement.

17.13Acknowledgement and Consent to Bail-In of EEA Financial Institutions.  Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the

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write-down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:

(a)the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution; and

(b)the effects of any Bail-in Action on any such liability, including, if applicable:

(i)a reduction in full or in part or cancellation of any such liability;

(ii)a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or

(iii)the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution Authority.

[Signature pages to follow.]

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

ADVANCEPIERRE FOODS, INC., a Delaware corporation

By:

Name:

Title:

WELLS FARGO CAPITAL FINANCE, LLC., a Delaware limited liability company, as Agent and as a Lender

By:

Name:

Title:

TABLE OF CONTENTS

			Page
1.	DEFINITIONS AND CONSTRUCTION		1
	1.1	Definitions	1
	1.2	Accounting Terms	1
	1.3	Code	2
	1.4	Construction	2
	1.5	Schedules and Exhibits	3
2.	LOANS AND TERMS OF PAYMENT		4
	2.1	Revolver Advances	4
	2.2	[Intentionally Omitted]	5
	2.3	Borrowing Procedures and Settlements	5
	2.4	Payments; Reductions of Commitments; Prepayments	11
	2.5	Promise to Pay; Promissory Notes	14
	2.6	Interest Rates and Letter of Credit Fee: Rates, Payments, and Calculations	14
	2.7	Crediting Payments	16
	2.8	Designated Account	17
	2.9	Maintenance of Loan Account; Statements of Obligations	17
	2.10	Fees	17
	2.11	Letters of Credit	18
	2.12	LIBOR Option	24
	2.13	Capital Requirements	26
	2.14	Increase in Revolver Commitments	27
3.	CONDITIONS; TERM OF AGREEMENT		29
	3.1	Conditions Precedent to the Initial Extension of Credit	29
	3.2	Conditions Precedent to all Extensions of Credit	30
	3.3	Maturity	30
	3.4	Effect of Maturity	30
	3.5	Early Termination by Borrower	30
	3.6	Conditions Subsequent to the Initial Extension of Credit	30
4.	REPRESENTATIONS AND WARRANTIES		31
	4.1	Due Organization and Qualification; Subsidiaries	31
	4.2	Due Authorization; No Conflict	32
	4.3	Governmental Consents	32
	4.4	Binding Obligations; Perfected Liens	32

TABLE OF CONTENTS

(continued)

			Page
	4.5	Title to Assets; No Encumbrances	33
	4.6	Jurisdiction of Organization; Location of Chief Executive Office; Organizational Identification Number; Commercial Tort Claims	33
	4.7	Litigation	33
	4.8	Compliance with Laws	33
	4.9	No Material Adverse Change	34
	4.10	Fraudulent Transfer	34
	4.11	Employee Benefits	34
	4.12	Environmental Condition	36
	4.13	Intellectual Property	36
	4.14	Leases	37
	4.15	Deposit Accounts and Securities Accounts	37
	4.16	Complete Disclosure	37
	4.17	Insurance	37
	4.18	Patriot Act	37
	4.19	Indebtedness	38
	4.20	Payment of Taxes	38
	4.21	Margin Stock	38
	4.22	Governmental Regulation	38
	4.23	OFAC	38
	4.24	Eligible Accounts	39
	4.25	Eligible Inventory	39
	4.26	Location of Inventory and Equipment	39
	4.27	Inventory Records	39
	4.28	Holding Companies	39
	4.29	Term Loan Documents	40
5.	AFFIRMATIVE COVENANTS		40
	5.1	Financial Statements, Reports, Certificates	40
	5.2	Collateral Reporting	40
	5.3	Existence	40
	5.4	Maintenance of Properties	40
	5.5	Taxes	40
	5.6	Insurance	41
	5.7	Inspection	41

ii

TABLE OF CONTENTS

(continued)

			Page
	5.8	Compliance with Laws	42
	5.9	Environmental	42
	5.10	Disclosure Updates	42
	5.11	Formation of Subsidiaries; Designation of Additional Restricted Subsidiaries	43
	5.12	Further Assurances	44
	5.13	Lender Meetings	44
	5.14	Compliance with ERISA and the IRC	44
	5.15	Location of Inventory and Equipment	45
6.	NEGATIVE COVENANTS		45
	6.1	Indebtedness	45
	6.2	Liens	45
	6.3	Restrictions on Fundamental Changes	46
	6.4	Disposal of Assets	46
	6.5	Change Name	46
	6.6	Nature of Business	46
	6.7	Prepayments and Amendments	47
	6.8	Change of Control	47
	6.9	Distributions	47
	6.10	Accounting Methods	50
	6.11	Investments	50
	6.12	Transactions with Affiliates	50
	6.13	Use of Proceeds	51
	6.14	Consignments	52
	6.15	Holding Company	52
	6.16	Limitation on Issuance of Preferred Stock	52
	6.17	Limitation on Certain Restrictions on Restricted Subsidiaries	53
7.	FINANCIAL COVENANT		53
	7.1	Fixed Charge Coverage Ratio	53
8.	EVENTS OF DEFAULT		53
9.	RIGHTS AND REMEDIES		56
	9.1	Rights and Remedies	56
	9.2	Remedies Cumulative	57
	9.3	Cure Right	57

iii

TABLE OF CONTENTS

(continued)

			Page
10.	WAIVERS; INDEMNIFICATION		59
	10.1	Demand; Protest; etc.	59
	10.2	The Lender Group’s Liability for Collateral	59
	10.3	Indemnification	59
11.	NOTICES		60
12.	CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER; JUDICIAL REFERENCE PROVISION		61
13.	ASSIGNMENTS AND PARTICIPATIONS; SUCCESSORS		63
	13.1	Assignments and Participations	63
	13.2	Successors	67
14.	AMENDMENTS; WAIVERS		68
	14.1	Amendments and Waivers	68
	14.2	Replacement of Certain Lenders	69
	14.3	No Waivers; Cumulative Remedies	70
15.	AGENT; THE LENDER GROUP		70
	15.1	Appointment and Authorization of Agent	70
	15.2	Delegation of Duties	71
	15.3	Liability of Agent	71
	15.4	Reliance by Agent	71
	15.5	Notice of Default or Event of Default	72
	15.6	Credit Decision	72
	15.7	Costs and Expenses; Indemnification	72
	15.8	Agent in Individual Capacity	73
	15.9	Successor Agent	73
	15.10	Lender in Individual Capacity	74
	15.11	Collateral Matters	74
	15.12	Restrictions on Actions by Lenders; Sharing of Payments	76
	15.13	Agency for Perfection	76
	15.14	Payments by Agent to the Lenders	76
	15.15	Concerning the Collateral and Related Loan Documents	77
	15.16	Audits and Examination Reports; Confidentiality; Disclaimers by Lenders; Other Reports and Information	77
	15.17	Several Obligations; No Liability	78
16.	WITHHOLDING TAXES		78

iv

TABLE OF CONTENTS

(continued)

			Page
	16.1	Payments	78
	16.2	Exemptions	79
	16.3	Reductions	81
	16.4	Refunds	81
17.	GENERAL PROVISIONS		82
	17.1	Effectiveness	82
	17.2	Section Headings	82
	17.3	Interpretation	82
	17.4	Severability of Provisions	82
	17.5	Bank Product Providers	82
	17.6	Debtor-Creditor Relationship	83
	17.7	Counterparts; Electronic Execution	83
	17.8	Revival and Reinstatement of Obligations	83
	17.9	Confidentiality	84
	17.10	Lender Group Expenses	85
	17.11	USA PATRIOT Act	85
	17.12	Integration	85

v

EXHIBITS AND SCHEDULES

Exhibit A-1	Form of Assignment and Acceptance Agreement
Exhibit B-1	Form of Borrowing Base Certificate
Exhibit B-2	Form of Bank Product Provider Agreement
Exhibit C-1	Form of Compliance Certificate
Exhibit L-1	Form of LIBOR Notice
Schedule A-1	Agent’s Account
Schedule A-2	Authorized Persons
Schedule C-1	Commitments
Schedule C-2	Credit Card Issuers/Credit Card Processors
Schedule D-1	Designated Account
Schedule E-1	Eligible Inventory Locations
Schedule E-2	Existing Letters of Credit
Schedule M-1	Management Agreements
Schedule P-1	Permitted LiensInvestments
Schedule P-2	Permitted Liens
Schedule P-3	Permitted Indebtedness
Schedule R-1	Real Property Collateral
Schedule 1.1	Definitions
Schedule 3.1	Conditions Precedent
Schedule 3.6	Conditions Subsequent
Schedule 4.1(b)	Capitalization of BorrowerLoan Parties
Schedule 4.1(c)	Capitalization of Loan Parties’ Subsidiaries
Schedule 4.6(a)	States of Organization
Schedule 4.6(b)	Chief Executive Offices
Schedule 4.6(c)	Organizational Identification Numbers
Schedule 4.6(d)	Commercial Tort Claims
Schedule 4.11	Employee Benefits
Schedule 4.12	Environmental Matters
Schedule 4.15	Deposit Accounts and Securities Accounts
Schedule 4.19	Permitted Indebtedness
Schedule 4.26	Locations of Inventory and Equipment
Schedule 5.1	Financial Statements, Reports, Certificates
Schedule 5.2	Collateral Reporting
Schedule 6.6	Nature of Business

Schedule 1.1

As used in the Agreement, the following terms shall have the following definitions:

“Acceptable Appraisal” means, with respect to an appraisal of Inventory, the most recent appraisal of such property received by Agent (a) from an appraisal company satisfactory to Agent, (b) the scope and methodology (including, to the extent relevant, any sampling procedure employed by such appraisal company) of which are satisfactory to Agent, and (c) the results of which are satisfactory to Agent, in each case, in Agent’s Permitted Discretion.

“Account” means an account (as that term is defined in the Code).

“Account Debtor” means any Person who is obligated on an Account, chattel paper, or a general intangible.

“Accounting Changes” means changes in accounting principles required by or made in accordance with the promulgation of any rule, regulation, pronouncement or opinion by the Financial Accounting Standards Board of the American Institute of Certified Public Accountants (or successor thereto or any agency with similar functions).

“Acquired Entity or Business” means either (a) all or substantially all of the assets constituting a business, division or product line of any Person not already a Subsidiary of BorrowerParent, or (b) 50.1% or more of the Stock of any such Person (including by way of merger or consolidation), which Person shall, as a result of the acquisition of such Stock or as a result of such merger or consolidation, become a Subsidiary of BorrowerParent that is a Restricted Subsidiary (or shall be merged with and into Borrower or a Wholly-Owneda Subsidiary of BorrowerParent that is a Restricted Subsidiary, with Borrower or such Wholly-Owned Subsidiary being the surviving or continuing Person).

“Advance Brands” means Advance Brands, LLC, a Delaware limited liability company.

“Advance Companies” means, individually and collectively, Advance Food Company, Advance Brands, and Advance Retail Holdings, LLC, an Oklahoma limited liability company, and “Advance Company” shall mean any one of them.

“Advance Food Acquisition Agreement” means that certain Stock Purchase Agreement, dated as of July 27, 2010, by and among Borrower, Advance Food Company Holdings, Inc. (now known as Maine Street Holdings, Inc.), Advance Food Company, and the Shareholders (as defined therein) party thereto.

“Advance Food Company” means Advance Food Company, Inc., an Oklahoma corporation.

“Advance Shareholders” means the “Shareholders” as defined in the Advance Food Acquisition Agreement, together with their respective successors, assigns and affiliates, including Maine Street Holdings, Inc. (formerly Advance Food Company Holdings, Inc.), any family members thereof, and any trust, corporation, partnership or other entity, the beneficiaries, stockholders, partners, members, managers, owners or Persons beneficially holding a controlling interest of which (or Persons which are the principal beneficiaries of which) consist of any one or more of the Persons referred to in the foregoing.

“Additional Documents” has the meaning specified therefor in Section 5.12 of the Agreement.

“Administrative Questionnaire” has the meaning specified therefor in Section 13.1(a) of the Agreement.

“Advances” has the meaning specified therefor in Section 2.1(a) of the Agreement.

“Affected Lender” has the meaning specified therefor in Section 2.13(b) of the Agreement.

“Affiliate” means, as applied to any Person, any other Person who controls, is controlled by, or is under common control with, such Person.  For purposes of this definition, “control” means the possession, directly or indirectly through one or more intermediaries, of the power to direct the management and policies of a Person, whether through the ownership of Stock, by contract, or otherwise; provided, that, for purposes of the definition of Eligible Accounts  and Section 6.12 of the Agreement: (a) any Person which owns directly or indirectly 10% or more of the Stock having ordinary voting power for the election of directors or other members of the governing body of a Person or 10% or more of the partnership or other ownership interests of a Person (other than as a limited partner of such Person) shall be deemed an Affiliate of such Person and (b) each partnership in which a Person is a general partner shall be deemed an Affiliate of such Person.

“Agent” has the meaning specified therefor in the preamble to the Agreement.

“Agent-Related Persons” means Agent, together with its Affiliates, officers, directors, employees, attorneys, and agents.

“Agent’s Account” means the Deposit Account of Agent identified on Schedule A-1 to the Agreement (or such other Deposit Account of Agent that has been designated as such, in writing, by Agent to Borrower and the Lenders).

“Agent’s Liens” means the Liens granted to Agent by each Loan Party under the Loan Documents and securing the Obligations.

“Aggregate Consideration” shall meanmeans, with respect to any Permitted Acquisition, the sum (without duplication) of (a) the fair market value of all common Stock of Parent or Holdings (based on the good faith determination of the senior management of Holdings or Parent) issued (or to be issued) as consideration in connection with such Permitted Acquisition (including common Stock of Parent or Holdings which may be required to be issued as earn-out consideration upon the achievement of certain future performance goals of the Person subject to such Permitted Acquisition), (b) the aggregate amount of all cash paid (or to be paid) by Parent, Holdings or any of their respectiveits Restricted Subsidiaries in connection with such Permitted Acquisition (other than payments of fees and costs and expenses in connection therewith) and all contingent cash purchase price, earn-out, non-compete and other similar cash-pay obligations of Parent, Holdings or any of their respectiveits Restricted Subsidiaries incurred and reasonably expected to be incurred in connection therewith (as determined in good faith by HoldingsParent or Borrower), (cb) the aggregate principal amount of all Indebtedness assumed, incurred, refinanced (by HoldingsParent or any of its Restricted Subsidiaries on behalf of the Person subject to such Permitted Acquisition) and/or issued inby Parent and its Restricted Subsidiaries in connection with such Permitted Acquisition to the extent permitted under the definition of Permitted Indebtedness (including Permitted Acquired Debt), (d) the aggregate liquidation preference of all Preferred Stock of Holdings or Parent issued or to be issued as consideration in connection with such proposed Permitted Acquisition and (ec) the fair market value of all other consideration (excluding Qualified Equity Interests and any Net Cash Proceeds thereof) paid (or to be paid) by Parent or its Restricted Subsidiaries in connection with such

Permitted Acquisition; provided that any future payment that is subject to a contingency shall be considered Aggregate Consideration only to the extent of the reserve, if any, required under GAAP at the time of such sale to be established in respect thereof by Holdings, BorrowerParent or any of its Restricted Subsidiaries.

“Agreement” means the Credit Agreement to which this Schedule 1.1 is attached.

“Amendment Effective Date” means June 2, 2016.

“Anti-Corruption Laws” means the FCPA, the U.K. Bribery Act of 2010, and all other applicable laws concerning bribery, money laundering or corruption.

“APF Legacy Subs” means APF Legacy Subs, LLC (formerly known as Clovervale Transportation, LLC), an Ohio limited liability company and successor-by-merger to Advance Brands, LLC, Zartic, LLC, Zartic Real Property, LLC, ZT Distribution, LLC, and Zar Tran Property, LLC.

“Applicable Margin” means, as of any date of determination and with respect to Base Rate Loans or LIBOR Rate Loans, as applicable, the applicable margin set forth in the following table that corresponds to the Average Excess Availability of Borrower for the most recently completed calendar quarter; provided, that any time an Event of Default has occurred and is continuing, the Applicable Margin shall be set at the margin in the row styled “Level III”:

Level	Average Excess Availability	Applicable Margin Relative to Base Rate Loans (the “Base Rate Margin”)	Applicable Margin Relative to LIBOR Rate Loans (the “LIBOR Rate Margin”)
I	> $50,000,000	0.750.50 percentage points	1.751.50 percentage points
II	< $50,000,000 and > $25,000,000	1.000.75 percentage points	2.001.75 percentage points
III	< $25,000,000	1.251.00 percentage points	2.252.00 percentage points

The Applicable Margin shall be re-determined as of the first day of each calendar quarter of Borrower.

“Applicable Unused Line Fee Percentage” means, as of any day of determination, the applicable percentage set forth in the following table that corresponds to the Average Revolver Usage of Borrower for the most recently completed calendar quarter as determined by Agent in its Permitted Discretion; provided, that at any time an Event of Default has occurred and is continuing, the Applicable Unused Line Fee Percentage shall be set at the margin in the row styled “Level II”:

Level	Average Revolver Usage	Applicable Unused Line Fee Percentage
I	> 50% of the Maximum Revolver Amount	0.250 percentage points

II < 50% of the Maximum Revolver Amount 0.375 percentage points

The Applicable Unused Line Fee Percentage shall be re-determined on the first day of each calendar quarter.

“Application Event” means the occurrence of (a) a failure by Borrower to repay all of the Obligations in full on the Maturity Date, or (b) an Event of Default and the election by Agent or the Required Lenders to require that payments and proceeds of Collateral be applied pursuant to Section 2.4(b)(ii) of the Agreement.

“Assignee” has the meaning specified therefor in Section 13.1(a) of the Agreement.

“Assignment and Acceptance” means an Assignment and Acceptance Agreement substantially in the form of Exhibit A-1 to the Agreement.

“Authorized Person” means any one of the individuals identified on Schedule A-2 to the Agreement (as such schedule is updatedor otherwise notified from time to time by written notice from Borrower to Agent).

“Availability” means, as of any date of determination, the amount that Borrower is entitled to borrow as Advances under Section 2.1 of the Agreement (after giving effect to the then outstanding Revolver Usage).

“Available Amount” shall mean, at any time (the “Reference Date”), an amount equal to, without duplication:

(a)the sum of:

(i)$10,000,000; plus

(ii)an amount equal to (x) the cumulative amount of Excess Cash Flow (which amount shall not be less than zero in any fiscal year) of Borrower and its Restricted Subsidiaries for the Available Amount Reference Period (it being understood for the avoidance of doubt that, solely for purposes of this definition, Excess Cash Flow for any fiscal year shall be deemed to be zero until the financial statements required to be delivered pursuant to Section 5.1 for such fiscal year, and the related compliance certificate required to be delivered pursuant to Section 5.1 for such fiscal year, has been received by Agent), minus (y) the portion of such Excess Cash Flow that has been (or is required to be) applied to the prepayment of the First Lien Term Loan Facility in accordance with Section 4.02(f) of the First Lien Term Loan Credit Agreement (as in effect on the Closing Date); plus

(iii)Eligible Equity Proceeds; plus

(iv)the Net Cash Proceeds received by Borrower from the sale or issuance of any Indebtedness or Disqualified Equity Interests, in each case, of Borrower sold or issued after the Closing Date (other than Indebtedness or such Disqualified Equity Interests issued to Borrower or any of its Subsidiaries or any Contribution Indebtedness), which has been converted into or exchanged for Stock of Borrower or Holdings that do not constitute Disqualified Equity Interests; plus

(v)the Net Cash Proceeds received by Borrower or any of its Restricted Subsidiaries in connection with the sale or other disposition to a Person (other than Holdings or any of its Restricted

Subsidiaries) of any Investment made pursuant to clause (u) of the definition of Permitted Investments (in an amount not to exceed the original amount of such Investments); plus

(vi)the Net Cash Proceeds (including, for purposes of this clause (vi) proceeds received in the form of Cash Equivalents) received by Borrower or any of its Restricted Subsidiaries in connection with the returns, interest, profits, distributions and similar amounts, in each case received in respect of any Investment made pursuant to clause (u) of the definition of Permitted Investments; plus

(vii)in the event any Unrestricted Subsidiary has been re-designated as a Restricted Subsidiary or has been merged, consolidated or amalgamated with or into, or transfers or conveys its assets to, or is liquidated into, Borrower or any of its Restricted Subsidiaries, the fair market value (as determined by the Board of Directors of Borrower) of the Investments of Borrower or any of its Restricted Subsidiaries in such Unrestricted Subsidiary at the time of such re-designation, combination or transfer (or of the assets transferred or conveyed, as applicable), in each case to the extent such Investments were originally made using the Available Amount pursuant to clause (u) of the definition of Permitted Investments; plus

(viii)the amount of any Declined Proceeds; minus

(b)an amount equal to the sum of (i) Restricted Payments made pursuant to Section 6.9(h) of the Agreement, plus (ii) repayments of Indebtedness made pursuant to Section 9.10(a)(x)(2) of the First Lien Term Loan Credit Agreement (as in effect on the Closing Date), plus (iii) Investments made pursuant to clause (u) of the definition of Permitted Investments, in each case, made after the Closing Date and prior to such time.

“Available Amount Reference Period” means, with respect to any Reference Date, the period commencing on October 10, 2012 and ending on the last day of the most recent fiscal year for which financial statements required to be delivered pursuant to Section 5.1, and the related compliance certificate required to be delivered pursuant to Section 5.1, have been received by Agent.

“Available Increase Amount” means, as of any date of determination, an amount equal to the result of (a) $25,000,00050,000,000, minus (b) the aggregate principal amount of increases to the Revolver Commitments and the Maximum Revolver Amount previously made pursuant to Section 2.14 of the Agreement after the Amendment Effective Date.

“Availability” means, as of any date of determination, the amount that Borrower is entitled to borrow as Advances under Section 2.1 of the Agreement (after giving effect to the then outstanding Revolver Usage).

“Average Excess Availability” means, with respect to any period, the sum of the aggregate amount of Excess Availability for each Business Day duringin such period (as calculated by Agent as of the end of each respective Business Day) divided by the number of Business Days in such period.

“Average Revolver Usage” means, with respect to any period, the sum of the aggregate amount of Revolver Usage for each Business Day in such period (as calculated by Agent at the end of each respective Business Day) divided by the number of Business Days in such period.

“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.

“Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and the Council of the European Union,

the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.

“Bank Product” means any one or more of the following financial products or accommodations extended to BorrowerParent or its Restricted Subsidiaries by a Bank Product Provider (other than pursuant to the Agreement):  (a) credit cards (including commercial cards (including so-called “purchase cards”, “procurement cards” or “p-cards”)), (b) credit card processing services, (c) debit cards, (d) stored value cards, (e) Cash Management Services, or (f) transactions under Hedge Agreements.

“Bank Product Agreements” means those agreements entered into from time to time by BorrowerParent or its Restricted Subsidiaries with a Bank Product Provider (other than thisthe Agreement and the other Loan Documents) in connection with the obtaining of any of the Bank Products.

“Bank Product Collateralization” means providing cash collateral (pursuant to documentation reasonably satisfactory to Agent) to be held by Agent for the benefit of the Bank Product Providers (other than Hedge Providers) in an amount determined by Agent as sufficient to satisfy the reasonably estimated credit exposure with respect to the then existing Bank Product Obligations (other than Hedge Obligations).

“Bank Product Obligations” means (a) all obligations, liabilities, reimbursement obligations, fees, or expenses owing by BorrowerParent or its Restricted Subsidiaries to any Bank Product Provider pursuant to or evidenced by a Bank Product Agreement and irrespective of whether for the payment of money, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, (b) all Hedge Obligations, and (c) all amounts that Agent or any Lender is obligated to pay to a Bank Product Provider as a result of Agent or such Lender purchasing participations from, or executing guarantees or indemnities or reimbursement obligations to, a Bank Product Provider with respect to the Bank Products provided by such Bank Product Provider to BorrowerParent or its Restricted Subsidiaries; provided, in order for any item described in clauses (a), (b), or (c) above, as applicable, to constitute “Bank Product Obligations”, if the applicable Bank Product Provider is any Person other than Wells Fargo or its Affiliates, then the applicable Bank Product must have been provided on or after the Closing Date and Agent shall have received a Bank Product Provider Agreement within 10 days after the date of the provision of the applicable Bank Product to Borrower or its Restricted Subsidiaries (or such longer period as may be permitted by Agent in its sole discretion)..

“Bank Product Provider” means any Lender or any of its Affiliates, including each of the foregoing in its capacity, if applicable, as a Hedge Provider; provided, that no such Person (other than Wells Fargo or its Affiliates) shall constitute a Bank Product Provider with respect to a Bank Product unless and until Agent receives a Bank Product Provider Agreement from such Person and(a) on or prior to the Closing Date (or such later date as Agent shall agree to in writing in its sole discretion) with respect to the applicable Bank Product withinBank Products provided on or prior to the Closing Date, or (b) on or prior to the date that is 10 days after the provision of such Bank Product to BorrowerParent or its Restricted Subsidiaries (or such longer period as may be permitted by Agentlater date as Agent shall agree to in writing in its sole discretion) with respect to Bank Products provided after the Closing Date; provided further, that if, at any time, a Lender ceases to be a Lender under the Agreement (prior to the payment in full of the Obligations), then, from and after the date on which it ceases to be a Lender thereunder, neither it nor any of its Affiliates shall constitute Bank Product Providers and the obligations with respect to Bank Products provided by such former Lender or any of its Affiliates shall no longer constitute Bank Product Obligations.

“Bank Product Provider Agreement” means an agreement in substantially the form attached hereto as Exhibit B-2 to the Agreement, in form and substance reasonably satisfactory to Agent, duly executed by the applicable Bank Product Provider, BorrowerParent or the applicable Restricted Subsidiary, and Agent.

“Bank Product ReserveReserves” means, as of any date of determination, the Dollar amount of reserves that Agent has establisheddeems in its Permitted Discretion necessary or appropriate to establish (based upon the Bank Product Providers’ reasonable determination of the credit exposure of Borrower and its Restrictedliabilities and obligations of the Loan Parties and their Subsidiaries in respect of Bank Product Obligations) in respect of Bank Products then provided or outstanding.

“Bankruptcy Code” means title 11 of the United States Code, as in effect from time to time.

“Barber Foods” means Barber Foods, LLC, a Maine limited liability company and successor-by-merger to Barber Foods Property, LLC.

“Base Rate” means the greatest of (a) the Federal Funds Rate plus ½%, (b) the rate of interest announced, from time to time, within Wells Fargo at its principal office in San Francisco as its “prime rate”, with the understanding that the “prime rate” is one of Wells Fargo’s base rates (not necessarily the lowest of such rates) and serves as the basis upon which effective rates of interest are calculated for those loans making reference thereto and is evidenced by the recording thereof after its announcement in such internal publications as Wells Fargo may designate, and (c) the LIBOR Rate, (which rate shall be calculated based upon an assumed Interest Period of one month and shall be determined on a daily basis).

“Base Rate Loan” means each portion of the Advances that bears interest at a rate determined by reference to the Base Rate.

“Base Rate Margin” has the meaning set forth in the definition of Applicable Margin.

“Board of Directors” means, as to any Person, the board of directors (or comparable managers) of such Person, or any committee thereof duly authorized to act on behalf of the board of directors (or comparable managers).

“Board of Governors” means the Board of Governors of the Federal Reserve System of the United States (or any successor).

“Borrower” has the meaning specified therefor in the preamble to the Agreement.

“Borrowing” means a borrowing consisting of Advances made on the same day by the Lenders (or Agent on behalf thereof), or by Swing Lender in the case of a Swing Loan, or by Agent in the case of an Extraordinary Advance.

“Borrowing Base” means, as of any date of determination, the result of:

(a)an amount equal to the sum of (i) 85% of the amount of Eligible Accounts, less the amount, if any, of the Dilution Reserve, plus (ii) 90% of the amount of Eligible Credit Card Receivables , plus

(b)the lowestlower of

(i)$125,000,000, and

(ii)the lesser of (A) the product of 65% multiplied by the value (calculated at the lower of cost or market on a first-in, first-out basis) of Eligible Inventory, and (B) the product of 85% multiplied by the Net Recovery Percentage identified in the most recent Acceptable Appraisal

of Inventory, multiplied by the value (calculated at the lower of cost or market on a first-in, first-out basis) of Eligible Inventory (such determination may be made as to different categories of Eligible Inventory based upon the Net Recovery Percentage applicable to such categories) at such time, minus

(ii)65% of the book value of Eligible Inventory, and

(iii)85% times the most recently determined Net Recovery Percentage times the book value of Eligible Inventory, minus

(c)the sum of (i) theaggregate amount of Reserves and Bank Product Reserve, (ii)  the Rent Reserve, and (iii) the Customary Reserves, if any established by Agent from time to time under Section 2.1(c) of the Agreement.

“Borrowing Base Certificate” means a certificate in the form of Exhibit B-1 to the Agreement.

“Borrowing Base Collateral” means “ABL Priority Collateral” as such term is defined in the Intercreditor Agreement (as in effect on the Closing Date).

“Borrowing Base Parties” means, individually and collectively, jointly and severally, Borrower, ZarticAPF Legacy Subs, Clovervale, Chefs Pantry, each of the Advance CompaniesFood Company, Barber Foods, and each other Restricted Subsidiary of Borrower that is a Loan Party, and “Borrowing Base Party” means any one of them; provided that, notwithstanding anything to the contrary contained in the foregoing or in the definition of either Excluded Subsidiary or Immaterial Subsidiary, each Subsidiary of Borrower that constitutes a Borrowing Base Party shall be a Loan Party and a Restricted Subsidiary for all purposes and shall not, in any event, constitute an Excluded Subsidiary or an Immaterial Subsidiary except that, so long as no Default or Event of Default then exists or would be caused thereby and upon at least 10 Business Days’ (and no more than 15 Business Days’) (or such shorter or longer periods as may be permitted by Agent in its sole discretion) written notice from Borrower to Agent, Borrower may elect to exclude from the definition of Borrowing Base Parties any Subsidiary that would otherwise have qualified as an Immaterial Subsidiary or an Excluded Subsidiary, but for the restrictions contained herein, as of the effective date for such exclusion as specified in Borrower’s election notice, provided, that no Overadvance would arise as a result of such exclusion, and from and after the effective date of such exclusion, such Subsidiary shall at all times thereafter cease to be a Borrowing Base Party for all purposes of the Agreement and the other Loan Documents.

“Business Day” means any day that is not a Saturday, Sunday, or other day on which banks are authorized or required to close in the state of New York, except that, if a determination of a Business Day shall relate to a LIBOR Rate Loan, the term “Business Day” also shall exclude any day on which banks are closed for dealings in Dollar deposits in the London interbank market.

“Calculation Period” shall mean, with respect to any Permitted Acquisition, any Material Asset Sale or any other event expressly required to be calculated on a Pro Forma Basis pursuant to the terms of the Agreement, the Test Periodas of any date of determination, the period of four consecutive Fiscal Quarters most recently ended prior to the date of such Permitted Acquisition, Material Asset Sale or other event, in each case, for which financial statements have been delivered to the LendersAgent pursuant to Section 5.1; provided that, with respect to any event required to be calculated on a Pro Forma Basis that occurs prior to the date on which financial statements have been (or are required to be) delivered pursuant to Section 5.1 for the fiscal quarter ended on September 30, 2012, the “Calculation Period” shall be the period of 4 consecutive fiscal quarters of Borrower ended June 30, 2012. of the Agreement.

“Capital Expenditures” means, with respect to any Person for any period, the aggregate amount of all expenditures by such Person and its Subsidiaries during such period that are capital expenditures as determined in accordance with GAAP, whether such expenditures are paid in cash or financed.

“Capitalized Lease Obligation” means that portion of the obligations under a Capital Lease that is required to be capitalized in accordance with GAAP.

“Capital Lease” means a lease that is required to be capitalized for financial reporting purposes in accordance with GAAP.

“Cash Equivalents” means (a) marketable direct obligations issued by, or unconditionally guaranteed by, the United States or issued by any agency thereof and backed by the full faith and credit of the United States, in each case maturing within 1 year from the date of acquisition thereof, (b) marketable direct obligations issued or fully guaranteed by any state of the United States or any political subdivision of any such state or any public instrumentality thereof maturing within 1 year from the date of acquisition thereof and, at the time of acquisition, having one of the two highest ratings obtainable from either Standard & Poor’s Rating Group (“S&P”) or Moody’s Investors Service, Inc. (“Moody’s”), (c) commercial paper maturing no more than 270 days from the date of creation thereof and, at the time of acquisition, having a rating of at least A-12 from S&P or at least P-12 from Moody’s, (d) certificates of deposit, time deposits, overnight bank deposits or bankers’ acceptances maturing within 1 year from the date of acquisition thereof issued by any bank organized under the laws of the United States or any state thereof or the District of Columbia or any United States branch of a foreign bank having at the date of acquisition thereof combined capital and surplus of not less than $250,000,000, (e) Deposit Accounts maintained with (i) any bank that satisfies the criteria described in clause (d) above, or (ii) any other bank organized under the laws of the United States or any state thereof so long as the full amount maintained with any such other bank is insured by the Federal Deposit Insurance Corporation, (f) repurchase obligations of any commercial bank satisfying the requirements of clause (d) of this definition or any recognized securities dealer having combined capital and surplus of not less than $250,000,000, having a term of not more than seven days, with respect to securities satisfying the criteria in clauses (a) or (d) above, (g) debt securities with maturities of six months or less from the date of acquisition backed by standby letters of credit issued by any commercial bank satisfying the criteria described in clause (d) above at the time of acquisition, and (h) Investments in money market funds substantially all of whose assets are invested in the types of assets described in clauses (a) through (g) above at the time of acquisition.

“Cash Management Services” means any cash management or related services including treasury, depository, return items, overdraft, controlled disbursement, merchant store value cards, e-payables services, electronic funds transfer, interstate depository network, automatic clearing house transfer (including the Automated Clearing House processing of electronic funds transfers through the direct Federal Reserve Fedline system) and other cash management arrangements.

“Change of Control” means that (a) (i) at any time prior to the consummation of an IPO, the Permitted Holders fail to beneficially own (as defined in Rule 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, in the aggregate, more than 50% of the aggregate ordinary voting power represented by the issued and outstanding Stock of Parent and (ii) at any time on or after the consummation of an IPO, any person or “group” (within the meaning of Rule 13d-3 and 13d-45 under the Exchange Act) more than 50% of the Stock of Holdings having the right to vote for the election of members of the Board of Directors of Holdings, and (ii) at any time from and after the consummation of an IPO, any “person” or “group” (within the meaning of Sections 13(d) and 14(d) of the Exchange Act) (other than Parent, any direct or indirect holding company thereofof Parent or one or more of the Permitted Holders) owns and controls, directly or indirectly, Stock of Holdings having the right to vote for the election of members of the Board of Directors of Holdings representing the lesser of (A) 30% or more of

all of such Stock of Holdings and (B) a percentage of such Stock of Holdings in excess ofParent representing more than 40.0% of the aggregate voting power of the issued and outstanding Stock of Parent and the percentage of such Stock of Holdingsaggregate voting power so held is greater than the percentage of the aggregate voting power represented by the issued and outstanding Stock of Parent beneficially owned and controlled, directly or indirectly, in the aggregate by the Permitted Holders, (b) a majority of the members of the Board of DirectorsParent ceases to directly own and control 100% of the Stock of Holdings or Borrower do not constitute Continuing Directors, (c) Holdings ceases to directly own and control 100% of the Stock of Borrower, or (d) a “change of control” or similar event shall occur as provided in the First Lien Term Loan Credit Agreement or the Second Lien Term Loan Credit Agreement.(or any Permitted Refinancing thereof) or other definitive documentation governing any other Indebtedness for borrowed money with an outstanding principal amount equal to or greater than $50,000,000.

“Change in Law” means the occurrence after the date of the Agreement of:  (a) the adoption or effectiveness of any law, rule, regulation, judicial ruling, judgment or treaty, (b) any change in any law, rule, regulation, judicial ruling, judgment or treaty or in the administration, interpretation, implementation or application by any Governmental Authority of any law, rule, regulation, guideline or treaty, or (c) the making or issuance by any Governmental Authority of any request, rule, guideline or directive, whether or not having the force of law; provided that notwithstanding anything in the Agreement to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives concerning capital adequacy promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities shall, in each case, be deemed to be a “Change in Law,” regardless of the date enacted, adopted or issued.

“Chefs Pantry” means Chefs Pantry, LLC, an Ohio limited liability company and successor-by-merger to Pierre Real Property, LLC.

“Closing Date” means October 10, 2012.

“Closing Date Dividend Payments” means a cash dividend payable by Borrower to Holdings in an amount not to exceed $185,000,000, which Holdings will use to pay a dividend to Parent.Ratification Agreement” means that certain Ratification Agreement, dated as of the Closing Date, executed and delivered by Borrower and each Guarantor extant as of the Closing Date in favor of Agent.

“Clovervale” means Clovervale Farms, LLC, an Ohio limited liability company.

“Code” means the New York Uniform Commercial Code, as in effect from time to time.

“Collateral” means all assets and interests in assets and proceeds thereof now owned or hereafter acquired in or upon which a Lien is granted (or purported to be granted) in favor of Agent or the Lenders under any of the Loan Documents.

“Collateral Access Agreement” means a landlord waiver, bailee letter, or acknowledgement agreement of any lessor, warehouseman, processor, consignee, or other Person in possession of, having a Lien upon, or having rights or interests in Borrower’sParent’s or its Restricted Subsidiaries’ books and records, Equipment, or Inventory, in each case, in form and substance reasonably satisfactory to Agent.

“Commitment” means, with respect to each Lender, its Revolver Commitment and, with respect to all Lenders, their Revolver Commitments, in each case as such Dollar amounts are set forth beside such Lender’s name under the applicable heading on Schedule C-1 or in the Assignment and

Acceptance pursuant to which such Lender became a Lender hereunderunder the Agreement, as such amounts may be reduced or increased from time to time pursuant to assignments made in accordance with the provisions of Section 13.1 of the Agreement.

“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. 1 et seq.), as amended from time to time, and any successor statute.

“Compliance Certificate” means a certificate substantially in the form of Exhibit C-1 to the Agreement delivered by the chief financial officer of Borrower or Parent to Agent.

“Confidential Information” has the meaning specified therefor in Section 17.9(a) of the Agreement.

“Consolidated Total Assets” shall meanmeans the total assets of Holdings, BorrowerParent and its Restricted Subsidiaries  on a consolidated basis, as shown on the most recent balance sheet delivered pursuant to Section 5.1 of the Agreement or, for the period prior to the time any such  statements are so delivered pursuant to Section 5.1, the financial statements delivered prior to the Closing Date.

“Contractual Obligation” has the meaning specified therefor in Section 6.15 of the Agreement.

“Continuing Director” means (a) any member of the Board of Directors who was a director (or comparable manager) of Borrower on the Closing Date, and (b) any individual who becomes a member of the Board of Directors after the Closing Date if such individual was approved, appointed or nominated for election to the Board of Directors by either a Permitted Holder or a majority of the Continuing Directors, but excluding any such individual originally proposed for election in opposition to the Board of Directors in office at the Closing Date in an actual or threatened election contest relating to the election of the directors (or comparable managers) of Borrower and whose initial assumption of office resulted from such contest or the settlement thereof.

“Contribution Indebtedness” shall mean Indebtedness of Borrower or any Restricted Subsidiary in an aggregate principal amount not greater than the aggregate amount of cash contributions (other than the proceeds from the issuance of Disqualified Equity Interests or contributions by Borrower or any Restricted Subsidiary) made to the capital of Borrower or such Restricted Subsidiary after the Closing Date (whether through the issuance or sale of Stock or otherwise); provided that such Contribution Indebtedness is (a) incurred within 180 days after the making of the related cash contribution and (b) is so designated as Contribution Indebtedness pursuant to a certificate of an Authorized Person of Borrower delivered to Agent on the date of incurrence thereof.

“Control Agreement” means a control agreement, in form and substance reasonably satisfactory to Agent, executed and delivered by Borrower or one of its Restricted Subsidiariesa Loan Party, Agent, and the applicable securities intermediary (with respect to a Securities Account) or bank (with respect to a Deposit Account).

“Controlled Account Agreement” has the meaning specified therefor in the Security Agreement.

“Copyright Security Agreement” has the meaning specified therefor in the Security Agreement.

“Covenant Test Date” means any date during the term of the Agreement as of which either (a) the Excess Availability Threshold is not satisfied or (b) an Event of Default has occurred and is continuing.

“Covenant Testing Period” means a period (a) commencing on the last day of the Fiscal Quarter of Borrower most recently ended prior to a Covenant Trigger Event for which Borrower is required to deliver to Agent quarterly or annual financial statements pursuant to Section 5.1 of the Agreement, and (b) continuing through and including the first day after such Covenant Trigger Event that Excess Availability has equaled or exceeded the greater of (i) 10% of the Line Cap, and (ii) $15,000,000 for 30 consecutive days.

“Covenant Trigger Event” means if at any time Excess Availability is less than the greater of (i) 10% of the Line Cap, and (ii) $15,000,000.

“Credit Card Agreements” means all agreements now or hereafter entered into by, or for the benefit of, any Borrowing Base Party with any Credit Card Issuer or any Credit Card Processor, as the same now exist or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced.

“Credit Card Issuer” means any of the credit card issuers listed on Schedule C-2 and any other credit card issuer consented to by Agent in its Permitted Discretion.

“Credit Card Notification” means a notice to a Credit Card Issuer or Credit Card Processor who is party to a Credit Card Agreement, in form and substance reasonably satisfactory to Agent, which Credit Card Notification shall require the ACH or wire transfer no less frequently than each Business Day (and whether or not there are then any outstanding Obligations) of all payments due to any Borrowing Base Party from such Credit Card Issuer or Credit Card Processor to a Deposit Account of any Borrowing Base Party that is subject to a Control Agreement in favor of Agent.

“Credit Card Processor” means any of the credit card processors or clearinghouses listed on Schedule C-2 and any other credit card processor or clearinghouse acceptable to Agent in its Permitted Discretion.

“Credit Card Receivables” means, collectively, (a) all present and future rights of any Borrowing Base Party to payment from any Credit Card Issuer, Credit Card Processor or other third party arising from sales of goods or rendition of services to customers who have purchased such goods or services using a credit or debit card, and (b) all present and future rights of any Borrowing Base Party to payment from any Credit Card Issuer, Credit Card Processor or other third party in connection with the sale or transfer of Accounts arising pursuant to the sale of goods or rendition of services to customers who have purchased such goods or services using a credit card or a debit card, including, but not limited to, all amounts at any time due or to become due from any Credit Card Issuer or Credit Card Processor under the Credit Card Agreements or otherwise, in each case above calculated net of prevailing interchange charges.

“Curative Equity” means the net amount of common equity contributions received by Borrower (or by any direct or indirect parent of Borrower which such direct or indirect parent of Borrower contributes, directly or indirectly to Borrower in the form of common equity capital) and which is designated “Curative Equity” by Borrower under Section 9.3 of the Agreement at the time it is contributed.  For the avoidance of doubt, the forgiveness of antecedent debt (whether Indebtedness, trade payables, or otherwise) shall not constitute Curative Equity.

“Cure RightExpiration Date” has the meaning specified therefor in Section 9.3(a) of the Agreement.

“Cure QuarterRight” has the meaning specified therefor in Section 9.3(a) of the Agreement.

“Customary Reserves” means, as of any date of determination, an amount equal to the aggregate amount of reserves, if any, established by Agent in its Permitted Discretion in accordance with Section 2.1(c) of the Agreement, including, reserves on account of liens or trusts arising under the Perishable Agricultural Commodities Act, the Packers and Stockyard Act, or similar federal, state or local statutes or ordinances.

“Declined Proceeds” means “Declined Proceeds” as that term is defined in the First Lien Term Loan Credit Agreement (as in effect on the Closing Date).

“Default” means an event, condition, or default that, with the giving of notice, the passage of time, or both, would be an Event of Default.

“Defaulting Lender” means any Lender that (a) has failed to (i) fund any amountsall or any portion of its Advances within 2 Business Days of the date such Advances were required to be funded by it under the Agreement on the date that it is required to do so under the Agreement (including the failure to make available to Agent amounts required pursuant to a Settlement or to make a required payment in connection with a Letter of Credit Disbursement)hereunder unless such Lender notifies Agent and Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable Default or Event of Default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to Agent, Issuing Lender, or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit) within 2 Business Days of the date when due, (b) has notified Borrower, Agent, or anyIssuing Lender in writing that it does not intend to comply with all or any portion of its funding obligations under the Agreement, (c)hereunder, or has made a public statement to the effect that it does not intend to comply with its funding obligations under the Agreement or under other agreements generally (as reasonably determined by Agent) under which it has committed to extend creditthat effect (unless such writing or public statement relates to such Lender’s obligation to fund an Advance hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable Default or Event of Default, shall be specifically identified in such writing or public statement) cannot be satisfied), (dc) has failed, within 23 Business Days after written request by Agent or Borrower, to confirm in writing to Agent and Borrower that it will comply with the terms of the Agreement relating to itsits prospective funding obligations to fund any amounts required to be funded by it under the Agreementhereunder (provided, that asuch Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by Agent and Borrower), (e) otherwise failed to pay over to Agent or any other Lender any other amount required to be paid by it under the Agreement on the date that it is required to do so under the Agreement, or (f) (i) becomes or is insolvent or has aor (d) has, or has a direct or indirect parent company that has, (i) become or is insolvent or (ii) becomes the subject of a bankruptcy or insolvency proceeding, or hasany Insolvency Proceeding, (ii) had appointed for it a receiver, custodian, conservator, trustee, or custodian or appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment or has a parent company that has become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment.administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity, or (iii) become the subject of a Bail-in Action; provided, that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States

or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.  Any determination by Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender upon delivery of written notice of such determination to Borrower, Issuing Lender, and each Lender.

“Defaulting Lender Rate” means (a) for the first 3 days from and after the date the relevant payment is due, the Base Rate, and (b) thereafter, the interest rate then applicable to Advances that are Base Rate Loans (inclusive of the Base Rate Margin applicable thereto).

“Deposit Account” means any deposit account (as that term is defined in the Code).

“Designated Account” means the Deposit Account of Borrower identified on Schedule D-1 to the Agreement (or such other Deposit Account of Borrower located at Designated Account Bank that has been designated as such, in writing, by Borrower to Agent).

“Designated Account Bank” has the meaning specified therefor in Schedule D-1 to the Agreement (or such other bank that is located within the United States that has been designated as such, in writing, by Borrower to Agent).

“Dilution” means, as of any date of determination, a percentage, based upon the experience of the immediately prior 90 consecutive days, that is the result of dividing the Dollar amount of (a) bad debt write-downs, discounts, advertising allowances, credits, or other dilutive items with respect to Borrower’s Accounts during such period, by (b) Borrower’s gross billings with respect to Accounts during such period.

“Dilution Reserve” means, as of any date of determination, an amount sufficient to reduce the advance rate against Eligible Accounts by 1 percentage point for each percentage point by(but not, for the avoidance of doubt, Eligible Credit Card Receivables) by the extent to which Dilution is in excess of 5%.

“Disqualified Equity Interests” means “Disqualified Equity Interests” as that term is defined in the First Lien Term Loan Credit Agreement (as in effect on the Closing Date).any Stock that, by its terms (or by the terms of any security or other Stock into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition (a) matures or is mandatorily redeemable (other than solely for Qualified Equity Interests and cash in lieu of fractional shares of such Stock), pursuant to a sinking fund obligation or otherwise (except as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior repayment in full of the Obligations), (b) is redeemable at the option of the holder thereof (other than solely for Qualified Equity Interests and cash in lieu of fractional shares of such Stock), in whole or in part, (c) provides for the scheduled payments of dividends in cash, or (d) is or becomes convertible into or exchangeable for Indebtedness or any other Stock that would constitute Disqualified Equity Interests, in each case, prior to the date that is 91 days after the Maturity Date at the time of issuance; provided that if such Stock is issued pursuant to a plan for the benefit of employees of Parent, Holdings, Borrower or its Restricted Subsidiaries or by any such plan to such employees, such Stock shall not constitute Disqualified Equity Interests solely because it may be required to be repurchased by Parent, Holdings, Borrower or its Restricted Subsidiaries in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, death, or disability.

“Dollars” or “$” means United States dollars.

“Domestic Subsidiary” of any Person shall meanmeans any Subsidiary of such Person incorporated or organized in the United States or any State or territory thereof or the District orof Columbia (other than any Pass-Through Foreign Holding Company).

“EBITDA” means, with respect to any fiscal period, consolidated net earnings (or loss) of BorrowerParent and its Restricted Subsidiaries, without giving effect to any gains (or losses) from sales of assets (other than inventory sold in the ordinary course of business), plus (i) the sum of (a) Interest Expense, (b) the provision for Federal, state, local and foreign income taxes accrued during such period for BorrowerParent and its Restricted Subsidiaries, (c) depreciation and amortization expense of BorrowerParent and its Restricted Subsidiaries for such period, (d) all other non-cash charges or expenses of BorrowerParent and its Restricted Subsidiaries for such period (including the write up of inventory in excess of manufacturing cost in accordance with SFAS 141R, other purchase accounting adjustments, other write-offs or write-downs, non-cash accruals taken in respect of product delivered to and processed by BorrowerParent and its Restricted Subsidiaries pursuant to its contracts with the U.S.D.A., and those incurred in connection with the granting of, or accretion on, options, warrants and any other Stock, but excluding any non-cash charge that results in an accrual of a reserve for cash charges in any future period which the BorrowerParent elects not to add back in the current period), (e) in the case of any period including any fiscal quarter of Borrower ending on or before March 31, 2013, the amount of all fees and expenses incurred in connection with the TransactionTransactions during the applicable period, (f) all management fees and expenses paid to Sponsor, the Advance Shareholders and their Affiliatesunder the Management Agreements pursuant to Sections 6.12(e) and 6.9(ve) for or during such period, (g) the amount of all fees and expenses incurred after the Closing Date in connection with any amendment to this Agreement, the First Lien Term Loan Credit Agreement, the Second Lien Term Loan Credit Agreement, or any other Permitted Indebtedness, in each case, so long as the applicable period includes the closing date of such amendment, as applicable,whether or not successful, (h) restructuring, integration and business optimization costs and expenses incurred during such period, including any severance costs, costs associated with office or plant openings or closings and consolidation, systems integration and optimization, relocation or integration costs (including expenses related to training and product test runs), fees of restructuring or business optimization consultants, and other business optimization or restructuring charges and expenses, (i) transaction costs, fees and expenses (whether or not any transaction is actually consummated) incurred in connection with any Permitted Acquisitions, any Permitted Indebtedness, issuance of Stock (including with respect to any direct or indirect parent of Borrower and anyin connection with the consummation of any IPO) and any Permitted Dispositions during such period (whether or not successful), (j) extraordinary, unusual or non-recurring charges or expenses to the extent that they reduced consolidated net earnings in such period, including related costs or expenses and payments of legal settlements, fines, judgments and orders, (k) amounts paid in respect of commodities forward purchase contracts to which hedge accounting treatment does not apply in an amount not to exceed $2,000,000 during the term of the Agreement, (l) (y) Permitted Acquisition Additional Cost Savings and Permitted Disposition Additional Cost Savings and (z) expected pro forma cost savings, operating expense reductions and synergies related to restructurings, cost savings initiatives and other similar initiatives which BorrowerParent has taken steps to initiate during the applicable period (net of the amount of benefits actually realized during the relevant period to the extent such are already included in the determination of consolidated net earnings for the applicable period), reasonably identifiable and factually supportable and projected by BorrowerParent in good faith to result from actions with respect to which substantial steps have been, will be, or are expected to be, taken (in the good faith determination of BorrowerParent) within 12 months after such period, in an aggregate amount for this clause (z) not to exceed 20% of EBITDA in any 4 fiscal quarter period of Borrower and its Restricted SubsidiariesCalculation Period (calculated after adjustment pursuant to this clause (l)); provided that any such adjustments are (A) estimated on a good faith basis by BorrowerParent and (B) described (in reasonable detail) in an officer’s certificate delivered by the chief financial officer or treasurer of BorrowerParent to Agent, (m) adjustments and add-backs specifically identified in the Sponsor Model, (n) proceeds of business interruption insurance to the extent not included in determining consolidated net earnings for such period, (o) charges incurred in establishing compliance with public company reporting

requirements (including the Sarbanes Oxley Act) in an amount not to exceed $2,000,000 in the aggregate during the term of the Agreement,, (p) any costs or expenses incurred pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement or any stock subscription or shareholder agreement, to the extent that such costs or expenses are funded with cash proceeds contributed to the capital of Borrower or a Guarantora Loan Party or the net proceeds of an issuance of Stock of Borrower or any Guarantor, solely to the extent that such net cash proceeds are excluded from the calculation of the Available Amountany Loan Party (including any payment of dividend equivalent rights to option holders), (q) any deductions (less any additions) attributable to non-controlling interests except, in each case, to the extent of cash paid, (r) any net loss from disposed or discontinued operations, and (s) unrealized net losses on the fair market value of any non-speculative hedge agreements and the net costs of implementation of any non-speculative hedge agreements and losses, charges and expenses attributable to the early extinguishment or conversion of indebtedness, hedge agreements or other derivative instruments (including deferred financing expenses written off and premiums paid), minus (ii) the sum of the following to the extent included in calculating consolidated net earnings (or loss) of BorrowerParent and its Restricted Subsidiaries for such fiscal period, (a) the amount of all cash payments or cash charges made (or incurred) by BorrowerParent or any of its Restricted Subsidiaries during such period on account of any non-cash losses or non-cash charges added back to EBITDA pursuant to preceding sub-clause (i)(d) above in a previous period, and (b) amounts added back to EBITDA in a prior period under sub-clause (i)(k) above as and when such amounts would have been expensed had the applicable forward purchase contract received hedge accounting treatment.  For purposes of calculating EBITDA for any period, pro forma effect shall be given to any Permitted Acquisition or any Material Asset Sale or any re-designation of an Unrestricted Subsidiary as a Restricted Subsidiary if effected during the respective period as if same had occurred on the first day of such period, and taking into account, in the case of any Permitted Acquisition or Material Asset Sale, adjustments that are (x) factually supportable and identifiable cost savings and expenses which would otherwise be accounted for as an adjustment pursuant to Article 11 of Regulation S-X under the Securities Act or (y) Permitted Acquisition Additional Cost Savings and Permitted Disposition Additional Cost Savings as if such cost savings or expenses were realized on the first day of the respective period.

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

“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

“Eligible Accounts” means those Accounts created by any Borrowing Base Party in the ordinary course of its business, that arise out of such Borrowing Base Party’s sale of goods or rendition of services, that comply with each of the representations and warranties respecting Eligible Accounts made in the Loan Documents, and that are not excluded as ineligible by virtue of one or more of the excluding criteria set forth below; provided, that such criteria may be revised from time to time by Agent in Agent’s Permitted Discretion to address the results of any audit or field examination performed by (or on behalf of) Agent from time to time.  In determining the amount to be included, Eligible Accounts shall be calculated net of customer deposits, unapplied cash, taxes, discounts, credits, allowances, and rebates.  Eligible Accounts shall not include the following:

(a)Accounts that the Account Debtor has failed to pay within 60 days of original invoice date or Accounts with selling terms of more than 30 days (other than (i) Accounts owed by the Ohio Department of Education, the Iowa Department of Education, the Archdiocese of Philadelphia, up to $2,000,000 in the aggregate (for all such Account Debtors), and (ii) Accounts owed by the Kellogg Company and its Subsidiaries), and (iii) Accounts that are subject to a reverse factoring arrangement entered into in the ordinary course of business and acceptable to Agent), that are paid within 90 days of original invoice date,

(b)Accounts owed by an Account Debtor (or its Affiliates) where 50% or more of all Accounts owed by that Account Debtor (or its Affiliates) are deemed ineligible under clause (a) above,

(c)Accounts with respect to which the Account Debtor is an Affiliate of Borrowerany Borrowing Base Party or an employee or agent of Borrowerany Borrowing Base Party or any Affiliate of Borrowerany Borrowing Base Party,

(d)Accounts arising in a transaction wherein goods are placed on consignment or are sold pursuant to a guaranteed sale, a sale or return, a sale on approval, a bill and hold, or any other terms by reason of which the payment by the Account Debtor may be conditional (other than warranties in the ordinary course of business),

(e)Accounts that are not payable in Dollars,

(f)Accounts with respect to which the Account Debtor either (i) does not maintain its chief executive office in the United States or Canada, or (ii) is not organized under the laws of the United States or Canada or any state or province thereof, or (iii) is the government of any foreign country or sovereign state, or of any state, province, municipality, or other political subdivision thereof, or of any department, agency, public corporation, or other instrumentality thereof, unless (y) the Account is supported by an irrevocable letter of credit reasonably satisfactory to Agent (as to form, substance, and issuer or domestic confirming bank) that has been delivered to Agent and is directly drawable by Agent, or (z) the Account is covered by credit insurance in form, substance, and amount, and by an insurer, reasonably satisfactory to Agent; provided, however, that up to $1,500,000 of Accounts that are otherwise Eligible Accounts and that are excluded solely because the Account Debtor is either organized under the laws of Canada or a province thereof or has its chief executive office located in Canada shall not be excluded under this clause (f),,

(g)Accounts with respect to which the Account Debtor is either (i) the United States or any department, agency, or instrumentality of the United States (exclusive, however, of Accounts with respect to which the applicable Borrowing Base Party has complied, to the reasonable satisfaction of Agent, with the Assignment of Claims Act, 31 USC §3727), or (ii) any state of the United States, (exclusive, however, of Accounts with respect to the applicable Borrowing Base Party has complied, to the reasonable satisfaction of Agent, with the applicable state analog of the Assignment of Claims Act),

(h)Accounts with respect to which the Account Debtor is a creditor of any Borrowing Base Party (unless the Account Debtor has provided to Agent a “non-offset” letter in form and substance reasonably satisfactory to Agent), has or has asserted a right of recoupment or  setoff, or has disputed its obligation to pay all or any portion of the Account, to the extent of such claim, right of recoupment or setoff, or dispute,

(i)Accounts owed by Sysco Corporation or its Affiliates to the extent of the obligations owing by such Account Debtors in excess of 35% (such percentage being subject to reduction by Agent in its Permitted Discretion if the creditworthiness of such Account Debtors

materially deteriorates) of all Eligible Accounts, to the extent of the obligations owing by such Account Debtors in excess of such percentage, (ii) Accounts owed by U.S. Foodservice, Inc. or its Affiliates to the extent of the obligations owing by such Account Debtors in excess of 35% (such percentage being subject to reduction by Agent in its Permitted Discretion if the creditworthiness of such Account Debtors materially deteriorates) of all Eligible Accounts, to the extent of the obligations owing by such Account Debtors in excess of such percentage, (iii) Accounts owed by Wal-Mart Stores, Inc. or its Affiliates to the extent of the obligations owing by such Account Debtors in excess of 20% (such percentage being subject to reduction by Agent in its Permitted Discretion if the creditworthiness of such Account Debtors materially deteriorates) of all Eligible Accounts, to the extent of the obligations owing by such Account Debtors in excess of such percentage, and (vi) Accounts with respect to any other Account Debtor whose total obligations owing to the LoanBorrowing Base Parties exceed 10% (such percentage, as applied to a particular Account Debtor, being subject to reduction by Agent in its Permitted Discretion if the creditworthiness of such Account Debtor materially deteriorates) of all Eligible Accounts, to the extent of the obligations owing by such Account Debtor in excess of such percentage; provided, that, in each case, the amount of Eligible Accounts that are excluded because they exceed the foregoing percentage shall be determined by Agent based on all of the otherwise Eligible Accounts prior to giving effect to any eliminations based upon the foregoing concentration limit,”

(j)Accounts with respect to which the Account Debtor is subject to an Insolvency Proceeding, has gone out of business, or as to which any Borrowing Base Party has received notice of an imminent Insolvency Proceeding of such Account Debtor; provided, that notwithstanding the foregoing provisions of the this clause (j), Agent may, in its Permitted Discretion, include as Eligible Accounts (i) Accounts that are post-petition accounts payable of an Account Debtor that is a debtor-in-possession under the Bankruptcy Code, and (ii) Accounts owing by an Account Debtor that has been reorganized or restructured following one of the events described in this clause (j) and has a credit quality satisfactory to Agent,

(k)Accounts, the collection of which, Agent, in its Permitted Discretion, believes to be doubtful, including by reason of the Account Debtor’s financial condition,

(l)Accounts that are not subject to a valid and perfected first priority Agent’s Lien,

(m)Accounts with respect to which (i) the goods giving rise to such Account have not been shipped and billed to the Account Debtor, or (ii) the services giving rise to such Account have not been performed and billed to the Account Debtor,

(n)Accounts with respect to which the Account Debtor is a Sanctioned Person or Sanctioned Entity,

(o)Accounts that represent the right to receive progress payments or other advance billings that are due prior to the completion of performance by any Borrowing Base Party of the subject contract for goods or services, or

(p)Accounts owned by a target acquired in connection with a Permitted Acquisition or Permitted Investment with respect to which the Aggregate Consideration therefor is in excess of $10,000,000, until the completion of an appraisal anda field examination with respect to such targetAccounts, in each case, reasonably satisfactory to Agent (which appraisal and field examination may be conducted prior to the closing of such Permitted Acquisition). or Permitted Investment), or

“Eligible Equity Proceeds” means “Eligible Equity Proceeds” as such term is defined in the First Lien Term Loan Credit Agreement (as in effect on the Closing Date).

(q)Accounts constituting Credit Card Receivables.

“Eligible Credit Card Receivables” means, as to any Borrowing Base Party, Credit Card Receivables of such Borrowing Base Party that comply with each of the representations and warranties respecting Eligible Credit Card Receivables made in the Loan Documents, and that are not excluded as ineligible by virtue of one or more of the excluding criteria set forth below; provided, that such criteria may be revised from time to time by Agent in Agent’s Permitted Discretion to address the results of any information with respect to the Borrowing Base Parties’ business or assets of which Agent becomes aware after the Effective Date, including any field examination performed by (or on behalf of) Agent from time to time after the Effective Date.  Eligible Credit Card Receivables shall not include the following:

(a)Credit Card Receivables that do not arise from the actual and bona fide sale and delivery of goods or rendition of services by such Borrowing Base Party in the ordinary course of the business of such Borrowing Base Party,

(b)Credit Card Receivables that are past due (beyond any stated applicable grace period, if any, therefor) pursuant to the terms set forth in the Credit Card Agreements with the Credit Card Issuer or Credit Card Processor of the credit card or debit card used in the purchase which give rise to such Credit Card Receivables,

(c)Credit Card Receivables that are unpaid more than 5 Business Days after the date of the sale of goods or rendition of services by such Borrowing Base Party giving rise to such Credit Card Receivables,

(d)Credit Card Receivables with respect to which the Credit Card Issuer or Credit Card Processor obligated in respect thereof has failed to remit any payment in respect of such Credit Card Receivables,

(e)Credit Card Receivables with respect to which the a Credit Card Issuer or Credit Card Processor has or has asserted a counterclaim, defense or dispute against such Credit Card Receivables (other than customary set-offs to fees and chargebacks consistent with the practices of such Credit Card Issuer or Credit Card Processor with such Borrowing Base Party from time to time), to the extent of such counterclaim, defense or dispute,

(f)Credit Card Receivables with respect to which a Credit Card Issuer or Credit Card Processor has set off against amounts otherwise payable by such Credit Card Issuer or Credit Card Processor to such Borrowing Base Party for the purpose of establishing a reserve or collateral for obligations of such Borrowing Base Party to such Credit Card Issuer or Credit Card Processor (other than customary set-offs and chargebacks consistent with the practices of such Credit Card Issuer or Credit Card Processor from time to time), to the extent of such set off,

(g)Credit Card Receivables not owned by a Borrowing Base Party or as to which a Borrowing Base Party does not have good title,

(h)Credit Card Receivables with respect to which the Credit Card Issuer or Credit Card Processor is subject to an Insolvency Proceeding, has gone out of business, or as to which any Borrowing Base Party has received notice of an imminent Insolvency Proceeding of such Credit Card Issuer or Credit Card Processor; provided, that notwithstanding the foregoing provisions of this clause (h), Agent may, in its Permitted Discretion, include as Eligible Credit Card Receivables (i) Credit Card Receivables that are post-petition accounts payable of a Credit Card Issuer or Credit

Card Processor that is a debtor-in-possession under the Bankruptcy Code, or (ii) Credit Card Receivables owing by a Credit Card Issuer or Credit Card Processor that has been reorganized or restructured following one of the events described in this clause (h) and has a credit quality reasonably satisfactory to Agent,

(i)Credit Card Receivables that Agent, in its Permitted Discretion, believes the collection of which to be doubtful by reason of the Credit Card Issuer’s or Credit Card Processor’s financial condition,

(j)Credit Card Receivables that are not subject to a valid and perfected first priority Agent’s Lien,

(k)Credit Card Receivables with respect to which an event of default has occurred under the relevant Credit Card Agreement of such Borrowing Base Party with the Credit Card Issuer or Credit Card Processor who has issued the credit card or debit card or handles payments under the credit card or debit card used in the sale which gave rise to such Credit Card Receivables which event of default gives such Credit Card Issuer or Credit Card Processor the right to cease or suspend payments to such Borrowing Base Party,

(l)Credit Card Receivables as to which the customers using the credit card or debit card giving rise to such Credit Card Receivables has returned the merchandise purchased giving rise to such Credit Card Receivable (it being understood that chargebacks in the ordinary course of business by Credit Card Processors under the terms of customary Credit Card Agreements are not violative of this clause),

(m)Credit Card Receivables that are not subject to Credit Card Notifications and, with respect to Credit Card Receivables that are first becoming Eligible Credit Card Receivables after the Effective Date, Agent has not received a field examination (and such other diligence as Agent may reasonably require) with respect to such Person’s Credit Card Receivables by a field examiner acceptable to Agent in its Permitted Discretion, the results, scope, assumptions, and methodology of which are acceptable to Agent in its Permitted Discretion,

(n)Credit Card Receivables with respect to which the applicable Credit Card Processor is not organized or does not have its principal offices or assets within the United States or another jurisdiction acceptable to the Agent in its Permitted Discretion,

(o)Credit Card Receivables with respect to which the Credit Card Processor is an Affiliate of any Borrowing Base Party or an employee or agent of any Borrowing Base Party or any Affiliate of any Borrowing Base Party,

(p)Credit Card Receivables with respect to which the Credit Card Processor is not organized or does not have its principal offices or assets within the United States, Canada or another jurisdiction acceptable to Agent in its Permitted Discretion,

(q)Credit Card Receivables that are not payable in Dollars,

(r)Credit Card Receivables that are evidenced by chattel paper or an instrument of any kind, or have been reduced to judgment,

(s)Credit Card Receivables that would not constitute Eligible Accounts (other than by virtue of clause (q) of the definition of Eligible Accounts) (assuming for purposes of such determination that such Credit Card Receivables constitute Accounts), or

(t)Credit Card Receivables that are billings for interest, fees or late charges.

“Eligible Inventory” means Inventory of a Borrowing Base Party consisting of first quality finished goods or raw materials held for sale in the ordinary course of any Borrowing Base Party’s business, that complies with each of the representations and warranties respecting Eligible Inventory made in the Loan Documents, and that is not excluded as ineligible by virtue of one or more of the excluding criteria set forth below; provided, that such criteria may be revised from time to time by Agent in Agent’s Permitted Discretion to address the results of any audit or appraisal performed by (or on behalf of) Agent from time to time.  In determining the amount to be so included, Inventory shall be valued at the lower of cost or market on a first-in first-out basis.  An item of Inventory shall not be included in Eligible Inventory if:

(a)none of thea Borrowing Base Parties hasParty does not have good, valid, and marketable title thereto,

(b)it is not located at one of the locations in the continental United States set forth on Schedule E-1 to the Agreement (as such schedule may be updated from time to time in accordance with the terms of the Agreement)or at any other location in the continental United States disclosed to Agent in writing after the Amendment Effective Date (or in-transit from one such location to another such location),

(c)it is located on real property leased by a Borrowing Base Party or in a contract warehouse or with a bailee, in each case, unless either (i) it is subject to a Collateral Access Agreement executed by the lessor or warehouseman, as the case may be, or (ii) the Agent has established in accordance with Section 2.1(c) such Customary Reserves for rent, if any, as it deems necessary or appropriate in its Permitted Discretion, and in each case and unlessand it is segregated or otherwise separately identifiable from goods of others, if any, stored on the premises, or (ii) Agent has established a Landlord Reserve with respect to such location,

(d)it is not subject to a valid and perfected first priority Agent’s Lien, subject only to (i) liens or trusts arising under the Perishable Agricultural Commodities Act, the Packers and Stockyard Act, or similar federal, state or local ordinances, and (ii) liensLiens described in, and within the terms of, clause (g) of the definition of Permitted Liens.,

(e)it consists of goods returned or rejected by any Borrowing Base Party’s customers,

(f)it consists of goods that are obsolete or slow moving or custom items, work-in-process, or goods that constitute spare parts, packaging and shipping materials, supplies used or consumed in any Borrowing Base Party’s business, bill and hold goods, defective goods, “seconds,” or Inventory acquired on consignment, or

(g)it is subject to third party trademark, licensing or other proprietary rights, unless Agent is satisfied that such Inventory can be freely sold by Agent upon and after the occurrence of an Event of Default despite such third party rights, or

(gh)it was acquired in connection with a Permitted Acquisition or Permitted Investment with respect to which the Aggregate Consideration therefor is in excess of $10,000,000, until the completion of an appraisal and field examination of such Inventory, in each case, reasonably satisfactory to Agent (which appraisal and field examination may be conducted prior to the closing of such Permitted Acquisition or Permitted Investment).

“Employee Benefit Plan” means any pension plan as defined in Section 3(2) of ERISA (a) that is maintained for employees of any Loan Party or any ERISA Affiliate, (b) to which any Loan Party or any ERISA Affiliate makes contributions or is required to make contributions,  or (c) to which any Loan Party or any ERISA Affiliate has any liability, contingent or otherwise, and which is subject to Section 302 or Title IV of ERISA or Section 412 of the Code, including any Multiemployer Plan.

“Enid Real Property” means the Real Property of Borrower located at 202, 204, 206 East Pine Avenue, Enid, Oklahoma 73701.

“Environmental Action” means any written complaint, summons, citation, notice, directive, order, claim, litigation, investigation, judicial or administrative proceeding, judgment, letter, or other written communication from any Governmental Authority, or any third party alleging liability of BorrowerParent or its Restricted Subsidiaries for violations of Environmental Laws or releases of Hazardous Materials from (a) any assets, properties, or businesses of BorrowerParent, any of its Restricted Subsidiaries, or any of their respective predecessors in interest, (b) adjoining properties or businesses, or (c) or onto any facilities which received Hazardous Materials generated by BorrowerParent, any of its Restricted Subsidiaries, or any of their respective predecessors in interest.

“Environmental Law” means any applicable federal, state, provincial, foreign or local statute, law, rule, regulation, ordinance, code, binding and enforceable guideline, binding and enforceable written policy, or rule of common law now or hereafter in effect and in each case as amended, or any judicial or administrative interpretation thereof, including any judicial or administrative order, consent decree or judgment, in each case, to the extent binding on BorrowerParent or its Restricted Subsidiaries, relating to the environment, the effect of the environment on employee health, or Hazardous Materials, in each case as amended from time to time.

“Environmental Liabilities” means all liabilities, monetary obligations, losses, damages, punitive damages, consequential damages, treble damages, costs and expenses (including all reasonable fees, disbursements and expenses of counsel, experts, or consultants, and costs of investigation and feasibility studies), fines, penalties, sanctions, and interest incurred as a result of any claim or demand, or Remedial Action required, by any Governmental Authority or any third party, and which relate to any Environmental Action.

“Environmental Lien” means any Lien in favor of any Governmental Authority for Environmental Liabilities.

“Equipment” means equipment (as that term is defined in the Code).

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and any successor statute thereto from time to time, and the regulations promulgated and rulings issued thereunder.

“ERISA Affiliate” means (a) any Person subject to ERISA whose employees are treated as employed by the same employer as the employees of Borrower or its Restricted Subsidiaries under IRC Section 414(b), (b) any trade or business subject to ERISA whose employees are treated as employed by the same employer as the employees of Borrower or its Restricted Subsidiaries under IRC Section 414(c), (c) solely for purposes of Section 302 of ERISA and Section 412 of the IRC, any organization subject to ERISA that is a member of an affiliated service group of which Borrower or any of its Restricted Subsidiaries is a member under IRC Section 414(m), or (d) solely for purposes of Section 302 of ERISA and Section 412 of the IRC, any Person subject to ERISA that is a party to an arrangement with Borrower or any of its Restricted Subsidiaries and whose employees are aggregated with the employees of Borrower or its Restricted Subsidiaries under IRC Section 414(o).

“ERISA Affiliate” means each person (as defined in Section 3(9) of ERISA) which together with Parent or a Subsidiary of Parent would be deemed to be a “single employer” within the meaning of Section 414(b), (c), (m) or (o) of the IRC.

“ERISA Event” means (a)(i) the occurrence of a Reportable Event; or (ii) the requirements of Section 4043(b) of ERISA apply with respect to a contributing sponsor, as defined in Section 4001(a)(13) of ERISA, of a Plan, and an event described in paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably expected to occur with respect to such Plan within the following 30 days; (b) the application for a minimum funding waiver with respect to a Plan; (c) the provision by the administrator of any Plan of a notice of intent to terminate such Plan, pursuant to Section 4041(a)(2) of ERISA (including any such notice with respect to a plan amendment referred to in Section 4041(e) of ERISA); (d) the cessation of operations at a facility of Parent, Holdings, Borrower, a Restricted Subsidiary or any ERISA Affiliate in the circumstances described in Section 4062(e) of ERISA; (e) conditions for imposition of a lien under Section 303(k) of ERISA shall have been met with respect to any Plan; (f) a determination that any Plan is in “at risk” status (within the meaning of Section 303 of ERISA); or (g) the institution by the PBGC of proceedings to terminate a Plan pursuant to Section 4042 of ERISA, or the occurrence of any event or condition described in Section 4042 of ERISA that constitutes grounds for the termination of, or the appointment of a trustee to administer, such Plan.

“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.

“Event of Default” has the meaning specified therefor in Section 8 of the Agreement.

“Excess Availability” means, as of any date of determination, the amount equal to Availability, plus up to $5,000,00020,000,000 of Qualified Cash, minus the aggregate amount, if any, of all trade payables of BorrowerParent and its Restricted Subsidiaries aged in excess of 10 days from their due date and all book overdrafts of BorrowerParent and its Restricted Subsidiaries in excess of historical practices with respect thereto, in each case as determined by Agent in its Permitted Discretion.

“Excess Availability Threshold” means, as of any date of determination, Excess Availability of at least:

(a) for purposes of the definition of Covenant Test Date, the greater of (i) $18,750,000 and (ii) 12.5% of the aggregate amount of the Commitments then in effect;

(b) for purposes of Section 6(l) of the Security Agreement, as well as the definition of “Triggering Event” set forth in the Security Agreement, the greater of (i) $18,750,000 and (ii) 12.5% of the aggregate amount of the Commitments then in effect;

(c) for purposes of Sections 6.7(a)(i), 6.9 and 8.10 of the Agreement and the definitions of Permitted Dispositions, Permitted Indebtedness, Permitted Investments and Term Loan Permitted Indebtedness, in each case to the extent that the Excess Availability Threshold is applicable thereto, the greater of (x) $22,500,000 and (y) 15% of the aggregate amount of the Commitments then in effect; and

(d) for purposes of the definition of Permitted Acquisitions, the greater of (x) $15,000,000 and (y) 10% of the aggregate amount of the Commitments then in effect.

“Excess Cash Flow” means “Excess Cash Flow” as that term is defined in the First Lien Term Loan Credit Agreement (as in effect on the Closing Date).

“Exchange Act” means the Securities Exchange Act of 1934, as in effect from time to time.

“Excluded Subsidiary” shall meanmeans (i) any Immaterial Subsidiary, (ii) any Domestic Subsidiary that is prohibited by law, regulation or contractual obligation from providing a Guaranty or that would require the consent, approval, license or authorization of a Governmental Authority (including the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government) in order to provide a Guaranty, (iii) any Pass-Through Foreign Holding Company, (iv) any Foreign Subsidiary or Domestic Subsidiary that is a Subsidiary of a Foreign Subsidiary, (v) any Domestic Subsidiary to the extent that the cost of obtaining a Guaranty by such Domestic Subsidiary outweighs the benefit afforded thereby as determined by Agent in its Permitted Discretion, or (vi) any Unrestricted Subsidiary.  For the avoidance of doubt, an Excluded Subsidiary may not also be a Borrowing Base Party for any purpose.

“Excluded Swap Obligation” means, with respect to any Loan Party, any Swap Obligation if, and to the extent that, all or a portion of the guaranty of such Loan Party of, or the grant by such Loan Party of a security interest to secure, such Swap Obligation (or any guaranty thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Loan Party’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the guaranty of such Loan Party or the grant of such security interest becomes effective with respect to such Swap Obligation.  If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such guaranty or security interest is or becomes illegal.

“Excluded Taxes” means (i) any Tax imposed on or measured onby the net income or net profits (however denominated) of any Lender, Participant or Agent (including any branch profits taxes and any franchise, excise or similar Taxes imposed in lieu of a net income taxTax), in each case imposed (a) by the jurisdiction (or by any political subdivision or taxing authority thereof) (ain which such Lender, Participant or Agent is organized or the jurisdiction (or by any political subdivision or taxing authority thereof) in which such Agent, Lender or such Participant is organized, (b) in which suchLender’s, Participant’s or Agent’s Lender’s or such Participant’s principal office is located, (c) in which or, in the case of anya Lender or Participant, its, in which such Lender’s applicable lending office is located, or (db) as a result of a present or former connection between such Lender or such, Participant or Agent and the jurisdiction or taxing authority imposing the taxTax (other than any such connection arising solely from such Lender or such, Participant or Agent having executed, delivered or performed its obligations or received payment under, or enforced its rights or remedies under the Agreement or any other Loan Document);, (ii) Taxes resulting fromattributable to a Lender’s, Participant’s or Agent’s or a Participant’s failure to comply with the requirements of Section 16.2 of the Agreement;, (iii) any United States federal withholding taxes that would be imposed on amounts payable to or for the account of an Agent or a Foreign Lender with respect to an applicable interest in the Obligations (or any fees hereunder)a Lender based upon the applicable law in effect at the time such Agent or ForeignLender becomes a party to the Agreement (or designates a new lending office, other than a designation made at the request of a Loan Party), except that Excluded Taxes shall not include (A) any amount that such Lender (or its assignor, if any) was previously entitled to receive pursuant to Section 16.1 of the Agreement, if any, with respect to such withholding Tax immediately prior to the time such Lender becomes a party to the Agreement (or designates a new lending office), except (A) to the extent that amounts with respect to such Taxes were payable, either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, pursuant to Section 16.1 of the Agreement, and (B) that Taxes shall includeand (B) additional United States federal withholding taxes that may be imposed after the time such Foreign Lender becomes a party to the Agreement (or designates a new lending office), as a result of a change in law, rule, regulation, treaty, order or other decision with respect to any of the foregoing by any Governmental Authority; and (iv) any U.S. Federal after the time such

Lender becomes a party to the Agreement (or designates a new lending office), and (iv) notwithstanding anything herein to the contrary, any United States federal withholding Taxes imposed under FATCA.

“Existing Credit Facilities” means, collectively, the Existing First Lien Term Loan Facility and the Existing Second Lien Term Loan Facility.

“Existing First Lien Term Loan Facility” means that certain First Lien Credit Agreement, dated as of September 30, 2010the Closing Date, among Holdings, Borrower, the lenders party thereto, and Credit Suisse AG, asDeutsche Bank Trust Company Americas, in its capacity as administrative and security agent (as amended through and including the ClosingAmendment Effective Date).

“Existing Letters of Credit” means those letters of credit described on Schedule E-2 to the Agreement.

“Existing Second Lien Term Loan Facility” means that certain Second Lien Credit Agreement, dated as of September 30, 2010the Closing Date, among Holdings, Borrower, the lenders party thereto, and Credit Suisse AG, Cayman Islands Branch, asDeutsche Bank Trust Company Americas, in its capacity as administrative and security agent (as amended through and including the ClosingAmendment Effective Date).

“Extraordinary Advances” has the meaning specified therefor in Section 2.3(d)(iii) of the Agreement.

“FATCA” shall meanmeans Sections 1471 through 1474 of the CodeIRC, as of the date of this Agreement (or any amended or successor version that is substantively comparable), and not materially more onerous to comply with), and (a) any current or future regulations or official interpretations thereof and, (b) any agreements entered into pursuant to Section 1471(b)(1) of the Code.IRC, and (c) any intergovernmental agreement entered into by the United States (or any fiscal or regulatory legislation, rules, or practices adopted pursuant to any such intergovernmental agreement entered into in connection therewith).

“FCPA” means the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder.

“Fee Letter” means that certain amended and restated fee letterAmended and Restated Fee Letter, dated as of the Closing Date, as amended by that certain amendment dated as of the Amendment Effective Date, between Borrower and Agent, in form and substance reasonably satisfactory to Agent.

“Federal Funds Rate” means, 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 funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by Agent from three Federal funds brokers of recognized standing selected by it.

“Fiscal Quarter” means, for any Fiscal Year, (a) for the first Fiscal Quarter of each Fiscal Year, the fiscal period commencing on the day after the last day of the preceding Fiscal Year and ending on the date that is 13 weeks after such date, (b) for the second Fiscal Quarter of each Fiscal Year, the fiscal period commencing on the day after the last day of the preceding Fiscal Quarter and ending on the date that is 13 weeks after such date, (c) for the third Fiscal Quarter of each Fiscal Year, the fiscal period commencing on the day after the last day of the preceding Fiscal Quarter and ending on the date that is 13 weeks after such date, and (d) for the fourth Fiscal Quarter of each Fiscal Year, the fiscal period

commencing on the day after the last day of the preceding Fiscal Quarter and ending on the Saturday closest to December 31 of each calendar year.

“Fiscal Year” means the fiscal year of Parent and its Subsidiaries ending on the Saturday closest to December 31 of each calendar year.

“Fixed Amounts” has the meaning specified therefor in Section 1.7 of the Agreement.

“First Lien Debt Cap” means “First-Lien Debt Cap” as such term is defined in the Intercreditor Agreement (as in effect on the Closing Date).

“First Lien Net Leverage Ratio” means “First Lien Net Leverage Ratio” as such term is defined in the First Lien Term Loan Credit Agreement (as in effect on the date hereof).

“First Lien Term Loan Agent” means Deutsche Bank Trust Company Americas, in its capacity as administrative and security agent under the First Lien Term Loan Facility, and any successor agent under the First Lien Term Loan Credit Agreement or any other First Lien Loan Document.

“First Lien Term Loan Credit Agreement” means that certain First-Lien Credit Agreement, dated as of the Closing Date, by and among Holdings, Borrower, First Lien Term Loan Lenders, and First Lien Term Loan Agent, as amended, amended and restated, modified, supplemented, amended and extended, restructured, replaced, refinanced or restated from time to time, in each such case, in accordance with the terms thereof and the Intercreditor Agreement.

“First Lien Term Loan Documents” means the First Lien Term Loan Credit Agreement and the other “Credit Documents” as such term is defined in the First Lien Term Loan Credit Agreement and any documents, instruments and agreements entered into in connection with any amendment, supplement, restatement, replacement or refinancing thereof, as amended, modified, supplemented or restated from time to time in accordance with the terms of the First Lien Term Loan Credit Agreement and the Intercreditor Agreement.

“First Lien Term Loan Facility” means the Indebtedness incurred by Borrower under the First Lien Term Loan Documents.

“First Lien Term Loan Lenders” means the “Lenders” as such term is defined in the First Lien Term Loan Credit Agreement.

“Fixed Charges” means, with respect to any fiscal periodCalculation Period and with respect to BorrowerParent and its Restricted Subsidiaries determined on a consolidated basis in accordance with GAAP, the sum, without duplication, of (a) Interest Expense accruedrequired to be paid (other than interest paid-in-kind, amortization of financing fees, orand other non-cash Interest Expense) during such period, (b) scheduled principal payments in respect of Indebtedness that are required to be paid in cash during such period (after giving effect to any reduction in such scheduled payments as a result of the application of any prepayments excluding scheduled payments during the fiscal quarterFiscal Quarter in which such prepayments were made), and (c) all federal, state, and local income taxes paid during such period.

“Fixed Charge Coverage Ratio” means, with respect to any  fiscal periodCalculation Period and with respect to BorrowerParent and its Restricted Subsidiaries determined on a consolidated basis in accordance with GAAP, the ratio of (a) the result of (i) EBITDA for such periodCalculation Period, minus (ii) Capital Expenditures made (to the extent not already incurred in a prior period) or incurred during such periodCalculation Period (excluding the amount, if any, of Capital Expenditures (aA) made with proceeds of Permitted Dispositions (including Permitted Dispositions of the type described in

clauses (g) and (h) of the definition thereof) and insurance or condemnation event proceeds, (bB) made with proceeds of substantially concurrent Stock issuances by or capital contributions to Parent, the proceeds of which are contributed or otherwise invested in Borrower, (cC) constituting all or a portion of the consideration payable in connection with any Permitted Acquisition), (dD) expenditures made as tenant in leasehold improvements to the extent reimbursed by landlords, or (eE) any Capital Expenditures related to any Sale/Leaseback Transaction permitted under the Agreement), minus (iii) the amount of Restricted Payments made (whether in cash or other property, other than common Stock) pursuant to Sections 6.9(b), 6.9(h), 6.9(i) and 6.9(l) during such Calculation Period, to (ii) Fixed Charges for such periodCalculation Period.

“Foreign Lender” means any Lender or Participant that is not a United States person within the meaning of IRC section 7701(a)(30).

“Foreign Pension Plan” means any plan, fund (including any superannuation fund) or other similar program established or maintained outside the United States by Parent or any one or more of its Subsidiaries primarily for the benefit of employees of Parent or such Subsidiaries residing outside the United States, which plan, fund or other similar program provides, or results in, retirement income, a deferral of income in contemplation of retirement or payments to be made upon termination of employment, and which plan is not subject to ERISA or the IRC.

“Foreign Subsidiary” shall meanmeans, as to any Person, any Subsidiary of such Person that is (i) treated as a corporation for U.S. federal income tax purposes that is formed or incorporated outside of the United States, (ii) a Domestic Subsidiary substantially all of whose assets consist, directly or indirectly, of Subsidiaries described in clause (i) of this definition or (iii) treated as disregarded for U.S. federal income tax purposes that owns more than 65% of the voting stockStock of a Subsidiary described in clauses (i) or (ii) of this definition; provided, however, that if any Subsidiary described in clause (ii) or (iii) executes and delivers, at its election, a Guaranty and all other applicable Loan Documents contemplated to be entered into by a new Wholly-Owned Domestic Subsidiary pursuant to Section 5.11 of the Agreement, such Subsidiary shall cease to constitute a Foreign Subsidiary.

“Funded Indebtedness” means, as of any date of determination, all Indebtedness for borrowed money or letters of credit of Borrower,Parent and its Restricted Subsidiaries, determined on a consolidated basis in accordance with GAAP, that by its terms matures more than one year after the date of determination, and any such Indebtedness maturing within one year from such date that is renewable or extendable at the option of Borrowera Loan Party or its Subsidiaries, as applicable, to a date more than one year from such date, including, in any event, but without duplication, with respect to Borrower and itsthe Loan Parties and their Subsidiaries, the Revolver Usage, the Term Loan FacilitiesFacility, and the amount of their Capitalized Lease Obligations.

“Funding Date” means the date on which a Borrowing occurs.

“Funding Losses” has the meaning specified therefor in Section 2.12(b)(ii) of the Agreement.

“GAAP” means generally accepted accounting principles as in effect from time to time in the United States, consistently applied; provided that determinations in accordance with GAAP for purposes of Sections 6 and 7 of the Agreement (including any defined terms used in such Section), and for all purposes of determining the Total Net Leverage Ratio, the Fixed Charge Coverage Ratio, and the First Lien Net Leverage Ratio,  are subject (to the extent provided therein) to Section 1.2 of the Agreement..

“Governing Documents” means, with respect to any Person, the certificate or articles of incorporation, by-laws, or other organizational documents of such Person.

“Governmental Authority” 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 Central Bank).

“Guarantors” means (a) HoldingsParent, (b) Holdings, (c) each Subsidiary of Borrower party to a Guaranty as of the ClosingAmendment Effective Date, and (cd) each other Person that becomes a guarantor after the ClosingAmendment Effective Date pursuant to Section 5.11 of the Agreement, and “Guarantor” means any one of them.

“Guaranties” means (a) that certain Amended and Restated Continuing General Guaranty, dated as of the Original ClosingAmendment Effective Date, among each extant Guarantor (other than any Advance Company or Pierre Retail Holdings, LLC) and Agent, (b) that certain Continuing General Guaranty, dated as of the Original Closing Date, executed and delivered by each Advance Company and Pierre Retail Holdings, LLC, as a guarantorParent, Holdings, and each Subsidiary of Borrower extant as of the Amendment Effective Date, in favor of Agent, for the benefit of the Lender Group and the Bank Product Providers, and (cb) any other general continuing guaranty executed and delivered after the ClosingAmendment Effective Date by one or more Guarantors in favor of Agent, for the benefit of the Lender Group and the Bank Product Providers, in form and substance reasonably satisfactory to Agent, and “Guaranty” means any one of the foregoing Guaranties.

“Hazardous Materials” means (a) substances that are defined or listed in, or otherwise classified pursuant to, any applicable laws or regulations as “hazardous substances,” “hazardous materials,” “hazardous wastes,” “toxic substances,” or any other formulation intended to define, list, or classify substances by reason of deleterious properties such as ignitability, corrosivity, reactivity, carcinogenicity, reproductive toxicity, or “EP toxicity”, (b) oil, petroleum, or petroleum derived substances, natural gas, natural gas liquids, synthetic gas, drilling fluids, produced waters, and other wastes associated with the exploration, development, or production of crude oil, natural gas, or geothermal resources, (c) any flammable substances or explosives or any radioactive materials, and (d) asbestos in any form or electrical equipment that contains any oil or dielectric fluid containing levels of polychlorinated biphenyls in excess of 50 parts per million.

“Hedge Agreement” means a “swap agreement” as that term is defined in Section 101(53B)(A) of the Bankruptcy Code.

“Hedge Obligations” means any and all obligations or liabilities, whether absolute or contingent, due or to become due, now existing or hereafter arising, of Borrower orParent and its Restricted Subsidiaries arising under, owing pursuant to, or existing in respect of Hedge Agreements entered into with one or more of the Hedge Providers.

“Hedge Provider” means any Lender or any of its Affiliates; provided, that no such Person (other than Wells Fargo or its Affiliates) shall constitute a Hedge Provider unless and until Agent receives a Bank Product Provider Agreement from such Person and with respect to the applicable Hedge Agreement within 10 days after the execution and delivery of suchthat is party to a Hedge Agreement with BorrowerParent or its Restricted Subsidiaries or otherwise provides Bank Products under clause (f) of the definition thereof; provided further, that if, at any time, a Lender ceases to be a Lender under the Agreement (prior to the payment in full of the Obligations), then, from and after the date on which it ceases to be a Lender thereunder, neither it nor any of its Affiliates shall constitute Hedge Providers and the obligations with respect to Hedge Agreements entered into with such former Lender or any of its Affiliates shall no longer constitute Hedge Obligations.

“Holdings” means Pierre Holdco, Inc., a Delaware corporation.

“Immaterial Subsidiary” shall meanmeans any Subsidiary of Parent (other than Holdings and Borrower) that (a) did not, as of the last day of the fiscal quarter of BorrowerFiscal Quarter most recently ended, have assets with a value in excess of 2.5% of the total assetsConsolidated Total Assets or revenues representing in excess of 2.5% of total revenues of BorrowerParent and its Subsidiaries, in each case, on a consolidated basis as of such date, and (b) taken together with all Immaterial Subsidiaries as of the last day of the fiscal quarter of BorrowerFiscal Quarter most recently ended, did not have assets with a value in excess of 5.0% of total assetsConsolidated Total Assets or revenues representing in excess of 5.0% of total revenues of BorrowerParent and its Subsidiaries, in each case, on a consolidated basis as of such date.  Each Immaterial Subsidiary as of the Closing Date is set forth in Schedule 4.1(c).

“Increase” has the meaning specified therefor in Section 2.14.

“Increase Date” has the meaning specified therefor in Section 2.14.

“Increase Joinder” has the meaning specified therefor in Section 2.14.

“Increased Audit Event” means if at any time Excess Availability is less than $75,000,000.

“Increased Reporting Event” means if at any time Excess Availability is less than the greater of (a) 10% of the Line Cap, and (b) $17,500,000.

“Increased Reporting Period” means the period commencing after the continuance of an Increased Reporting Event for 5 consecutive Business Days and continuing until the date when no Increased Reporting Event has occurred for 30 consecutive days.

“Incurrence Based Amounts” has the meaning specified therefor in Section 1.7 of the Agreement.

“Indebtedness” means (a) all obligations for borrowed money, (b) all obligations evidenced by bonds, debentures, notes, or other similar instruments and all reimbursement or other obligations in respect of letters of credit, bankers acceptances, or other similar financial products, (c) all obligations as a lessee under Capital Leases, (d) all obligations or liabilities of others of the types described in clauses (a), (b), (c), (e) or (f) of this definition secured by a Lien on any asset of a Person or its Subsidiaries, irrespective of whether such obligation or liability is assumed, (e) all obligations to pay the deferred purchase price of assets (other than trade payables incurred in the ordinary course of business and repayable in accordance with Borrower’s ordinary trade practicesnot past due for more than 60 days after the date on which such trade payables were created), (f) all obligations owing under Hedge Agreements (which amount shall be calculated based on the amount that would be payable by such Person if the Hedge Agreement were terminated on the date of determination), and (g) any obligation guaranteeing or intended to guarantee (whether directly or indirectly guaranteed, endorsed, co-made, discounted, or sold with recourse) any obligation of any other Person that constitutes Indebtedness under any of clauses (a) through (f) above.  For purposes of this definition, (i) the amount of any Indebtedness represented by a guaranty or other similar instrument shall be the lesser of the principal amount of the obligations guaranteed and still outstanding and the maximum amount for which the guaranteeing Person may be liable pursuant to the terms of the instrument embodying such Indebtedness, and (ii) the amount of any Indebtedness described in clause (d) above shall be the lower of the amount of the obligation and the fair market value of the assets securing such obligation.  Notwithstanding the foregoing, Indebtedness of any Person shall not include trade payables, accrued expenses and deferred tax and other credits incurred by any Person in the ordinary course of business of such Person.

“Increase” has the meaning specified therefor in Section 2.14(a) of the Agreement.

“Increase Effective Date” has the meaning specified therefor in Section 2.14(b) of the Agreement.

“Increase Joinder” has the meaning specified therefor in Section 2.14(b)(i) of the Agreement.

“Indemnified Liabilities” has the meaning specified therefor in Section 10.3 of the Agreement.

“Indemnified Person” has the meaning specified therefor in Section 10.3 of the Agreement.

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

“Insolvency Proceeding” means any proceeding commenced by or against any Person under any provision of the Bankruptcy Code or under any other state or federal bankruptcy or insolvency law, assignments for the benefit of creditors, formal or informal moratoria, compositions, extensions generally with creditors, or proceedings seeking reorganization, arrangement, or other similar relief.

“Intellectual Property Security Agreements” means theeach Copyright Security Agreement, theeach Patent Security Agreement and theeach Trademark Security Agreement.

“Intercompany Subordination Agreement” means the Second Amended and Restated Intercompany Subordination Agreement, dated as of the Original ClosingAmendment Effective Date, among Borrower, each of itsthe Loan Parties, their Restricted Subsidiaries, and Agent.

“Intercreditor Agreement” means the Amended and Restated Intercreditor Agreement, dated as of the ClosingAmendment Effective Date, by and among the Loan Parties, Agent, First Lien Term Loanbetween Agent and Second Lien Term Loan Agent.

“Interest Coverage Ratio” means, for any Calculation Period, the ratio of (a) EBITDA for such Calculation Period to (b) Interest Expense for such Calculation Period; provided that for purposes of any calculation of the Interest Coverage Ratio pursuant to the Agreement, EBITDA and Interest Expense shall be determined on a Pro Forma Basis in accordance with the definition of “Pro Forma Basis”.

“Interest Expense” means, for any period, the aggregate of the interest expense of Borrowerwith respect to Parent and its Restricted Subsidiaries for such period, determined on a consolidated basis, total cash interest expense (including that portion attributable to capital leases in accordance with GAAP (inclusive of amounts paid in respect of Hedge Agreements (other than settlement, termination or upfront payments), but excludingand capitalized interest) net of cash interest income, including all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing and net costs under hedging agreements, but excluding, for the avoidance of doubt, (i) amortization of deferred financing fees and other original issue discount and banking fees, charges and commissions (e.g., letter of credit fees, commitment fees, underwriting fees, arrangement fees, fees or premiums or other amounts paid in connection with the issuance or repayment or termination of Indebtedness (including in respect of Hedge Agreements)).costs, debt discounts or premiums, debt issuance costs, commissions, fees and expenses, pay-in-kind interest expense and any other amounts of non-cash interest (including as a result of the effects of acquisition method accounting or pushdown accounting), (ii) non-cash interest expense attributable to the movement of the mark-to-market valuation

of obligations under hedging agreements or other derivative instruments and (iii) any one-time cash costs associated with breakage in respect of hedging agreements for interest rates.

“Interest Period” means, with respect to each LIBOR Rate Loan, a period commencing on the date of the making of such LIBOR Rate Loan (or the continuation of a LIBOR Rate Loan or the conversion of a Base Rate Loan to a LIBOR Rate Loan) and ending 1, 2, 3 or 6 months thereafter; provided, that (a) if any Interest Period would end on a day that is not a Business Day, such Interest Period shall be extended (subject to clauses (c)-(e) below) to the next succeeding Business Day, (b) interest shall accrue at the applicable rate based upon the LIBOR Rate from and including the first day of each Interest Period to, but excluding, the day on which any Interest Period expires, (c) any Interest Period that would end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day, (d) with respect to an Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period), the Interest Period shall end on the last Business Day of the calendar month that is 1, 2, 3 or 6 months after the date on which the Interest Period began, as applicable, and (e) Borrower may not elect an Interest Period which will end after the Maturity Date.

“Inventory” means inventory (as that term is defined in the Code).

“Inventory Reserves” means, as of any date of determination, (a) Landlord Reserves in respect of Inventory, and (b) those reserves that Agent deems necessary or appropriate, in its Permitted Discretion and subject to Section 2.1(c), to establish and maintain (including reserves for slow moving Inventory and Inventory shrinkage) with respect to Eligible Inventory or the Maximum Revolver Amount, including based on the results of appraisals.

“Investment” means, with respect to any Person, any investment by such Person in any other Person (including Affiliates) in the form of loans, guarantees, advances, capital contributions (excluding (a) commission, travel, and similar advances to officers and employees of such Person made in the ordinary course of business, and (b) bona fide accounts receivable arising in the ordinary course of business), or acquisitions of Indebtedness, Stock, or all or substantially all of the assets of such other Person (or of any division or business line of such other Person), and any other items that are or would be classified as investments on a balance sheet prepared in accordance with GAAP.  The amount of any Investment shall be the original cost of such Investment, plus the cost of all additions thereto, without any adjustment for increases or decreases in value, or write-ups, write-downs, or write-offs with respect to such Investment.

“IPO” means a bona fide underwritten sale to the public of common stock of Parent (or any parent holding company thereof) pursuant to a registration statement (other than on Form S-8 or any other form relating to securities issuable under any benefit plan of HoldingsParent or any of its Restricted Subsidiaries, as the case may be) that is declared effective by the SEC and such offering results in net cash proceeds received by (or contributed to) Holdings of at least $50,000,000.

“IRC” means the Internal Revenue Code of 1986, as in effect from time to time.

“ISP” means, with respect to any Letter of Credit, the International Standby Practices 1998 (International Chamber of Commerce Publication No. 590) and any subsequent revision thereof adopted by the International Chamber of Commerce on the date such Letter of Credit is issued.

“Issuer Document” means, with respect to any Letter of Credit, a letter of credit application, a letter of credit agreement, or any other document, agreement or instrument entered into (or to be entered into) by Borrower in favor of Issuing Lender or Underlying Issuer and relating to such Letter of Credit.

“Issuing Lender” means WFCF or any other Lender that, at the request of Borrower and with the consent of Agent, agrees, in such Lender’s sole discretion, to become an Issuing Lender for the purpose of issuing Letters of Credit or Reimbursement Undertakings pursuant to Section 2.11 of the Agreement and Issuing Lender shall be a Lender.

“Landlord Reserve” means, as to each location at which a Borrowing Base Party has Inventory or books and records located and as to which a Collateral Access Agreement has not been received by Agent, a reserve in an amount equal to 3 months’ rent, storage charges, fees or other amounts under the lease or other applicable agreement relative to such location or, if greater and Agent so elects, the number of months’ rent, storage charges, fess or other amounts for which the landlord, bailee, warehouseman or other property owner will have, under applicable law, a Lien in the Inventory of such Borrowing Base Party to secure the payment of such amounts under the lease or other applicable agreement relative to such location.

“LCA Election” has the meaning specified therefor in Section 1.7 of the Agreement.

“LCA Test Date” has the meaning specified therefor in Section 1.7 of the Agreement.

“Lender” has the meaning set forth in the preamble to the Agreement, shall include Issuing Lender and the Swing Lender, and shall also include any other Person made a party to the Agreement pursuant to the provisions of Section 13.1 of the Agreement and “Lenders” means each of the Lenders or any one or more of them.

“Lender Group” means each of the Lenders (including Issuing Lender and the Swing Lender) and Agent, or any one or more of them.

“Lender Group Expenses” means all (a) out-of-pocket costs or expenses (including  Taxes,taxes and insurance premiums) required to be paid by Borrower or its Subsidiariesany Loan Party under any of the Loan Documents that are paid, advanced, or incurred by the Lender Group in accordance with the terms of the Loan Documents, (b) reasonable and documented out-of-pocket fees or charges paid or incurred by Agent in connection with the Lender Group’s transactions with Borrower oreach Loan Party and its Subsidiaries under any of the Loan Documents, including, fees or charges for photocopying, notarization, couriers and messengers, telecommunication, and public record searches (including tax lien, litigation, and UCC searches and including searches with the patent and trademark office, the copyright office, or the department of motor vehicles), filing fees, recording fees, publication, appraisal (including periodic collateral appraisals or business valuations to the extent of the fees and charges (and up to the amount of any limitation) contained in the Agreement or the Fee Letter), real estate surveys, real estate title policies and endorsements, and environmental audits, (c) out-of-pocket costs and expenses incurred by Agent inAgent’s customary fees and charges imposed or incurred in connection with any background checks or OFAC/PEP searches related to any Loan Party or its Subsidiaries, (d) Agent’s customary fees and charges (as adjusted from time to time) with respect to the disbursement of funds to(or the receipt of funds) to or for the account of Borrower or other members of the Lender Group ((whether by wire transfer or otherwise), (d)together with any reasonable out-of-pocket costs and expenses incurred in connection therewith, (e) customary charges paid or incurred by Agent resulting from the dishonor of checks payable by or to any Loan Party, (ef) reasonable and documented out-of-pocket costs and expenses paid or incurred by the Agent to correct any default or enforce any provision of the Loan Documents, or during the continuance of an Event of Default, by the Lender Group in gaining possession of, maintaining, handling, preserving, storing, shipping, selling, preparing for sale, or advertising to sell the Collateral, or any portion thereof, irrespective of whether a sale is consummated, (fg) reasonable out-of-pocket auditfield examination, appraisal and valuation fees and expenses (including travel, meals, and lodging) of Agent related to any inspections or auditsfield examinations, appraisals or valuation to the extent of the fees and charges (and up to the amount of any limitation) contained inprovided in Section 2.10 of the Agreement or the Fee Letter, (gh) Agent’s and Lenders’ reasonable out-of-pocketout-of-pocket- costs and

expenses of(including reasonable and documented attorneys’ fees and expenses) relative to third party claims or any other suitlawsuit or adverse proceeding paid or incurred by the Lender Group, whether in enforcing or defending the Loan Documents or otherwise in connection with the transactions contemplated by the Loan Documents, the Agent’s Liens in and to the Collateral, or the Lender Group’s relationship with Borrowerany Loan Party or any of its Subsidiaries, (hi) Agent’s reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred in advising, structuring, drafting, reviewing, administering (including travel, meals, and lodging), syndicating, or amending, waiving or modifying the Loan Documents, (ij) Agent’s and each Lender’s reasonable and documented costs and expenses (including reasonable attorneys, accountants, consultants, and other advisors fees and expenses) incurred in terminating, enforcing (including attorneys’, accountants’, consultants’, and other advisors to the Lender Group’ reasonable fees and expenses incurred in connection with a “workout,” a “restructuring,” or an Insolvency Proceeding concerning Borrowerany Loan Party or any of its Subsidiaries or in exercising rights or remedies under the Loan Documents), or defending the Loan Documents, irrespective of whether suita lawsuit or other adverse proceeding is brought, or in taking any enforcement action or any Remedial Action concerningwith respect to the Collateral (provided, that the fees and expenses of counsel that shall constitute Lender Group Expenses shall in any event be limited to one primary counsel to Agent and one primary counsel to the Lenders, one local counsel to Agent in each reasonably necessary jurisdiction, one specialty counsel to Agent in each reasonably necessary specialty area (including insolvency law), and one or more additional counsel to Lenders if one or more conflicts of interest arise), and (jk) the fees, charges, commissions and costs provided for in Section 2.11(k) of the Agreement (including any fronting fees) and all other fees, charges, commissions, costs and expenses for amendments, renewals, extensions, transfers, or drawings from time to time charged by the Underlying Issuer or incurred or charged by Issuing Lender in respect of Letters of Credit and out-of-pocket fees, costs, and expenses charged by the Underlying Issuer or incurred or charged by Issuing Lender in connection with the issuance, amendment, renewal, extension, or transfer of, or drawing under, any Letter of Credit or any demand for payment thereunder.

“Lender-Related Person” means, with respect to any Lender, such Lender, together with such Lender’s Affiliates, officers, directors, employees, attorneys, and agents.

“Letter of Credit” means a letter of credit (as that term is defined in the Code) issued by Issuing Lender or a letter of credit (as that term is defined in the Code) issued by Underlying Issuer, as the context requires.

“Letter of Credit Collateralization” means either (a) providing cash collateral (pursuant to documentation reasonably satisfactory to Agent (including that Agent has a first priority perfected Lien in such cash collateral), including provisions that specify that the Letter of Credit Fees and all commissions, fees, charges and expenses provided for in Section 2.11(k) of the Agreement (including any fronting fees) will continue to accrue while the Letters of Credit are outstanding) to be held by Agent for the benefit of the Revolving Lenders in an amount equal to 105% of the then existing Letter of Credit Usage, (b) delivering to Agent documentation executed by all beneficiaries under the Letters of Credit, in form and substance reasonably satisfactory to Agent and Issuing Lender, terminating all of such beneficiaries’ rights under the Letters of Credit, or (c) providing Agent with a standby letter of credit, in form and substance reasonably satisfactory to Agent, from a commercial bank acceptable to Agent (in its sole discretion) in an amount equal to 105% of the then existing Letter of Credit Usage (it being understood that the Letter of Credit Fee and all fronting fees set forth in the Agreement will continue to accrue while the Letters of Credit are outstanding and that any such fees that accrue must be an amount that can be drawn under any such standby letter of credit).

“Letter of Credit Disbursement” means a payment made by Issuing Lender or Underlying Issuer pursuant to a Letter of Credit.

“Letter of Credit Exposure” means, as of any date of determination with respect to any Lender, such Lender’s Pro Rata Share of the Letter of Credit Usage on such date.

“Letter of Credit Fee” has the meaning specified therefor in Section 2.6(b) of the Agreement.

“Letter of Credit Indemnified Costs” has the meaning specified therefor in Section 2.11(f) of the Agreement.

“Letter of Credit Related Person” has the meaning specified therefor in Section 2.11(f) of the Agreement.

“Letter of Credit Sublimit” means $30,000,000.

“Letter of Credit Usage” means, as of any date of determination, the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit, plus (b) the aggregate amount of outstanding reimbursement obligations with respect to Letters of Credit which remain unreimbursed or which have not been paid through an Advance.

“LIBOR Deadline” has the meaning specified therefor in Section 2.12(b)(i) of the Agreement.

“LIBOR Notice” means a written notice in the form of Exhibit L-1 to the Agreement.

“LIBOR Option” has the meaning specified therefor in Section 2.12(a) of the Agreement.

“LIBOR Rate” means the rate per annum rate appearing on Macro*World’s (www.mworld.com; the “Service”) Page BBA LIBOR - USD (or on any successor or substitute page of such Service,as reported on Reuters Screen LIBOR01 page (or any successor to or substitute for such Servicepage) 2 Business Days prior to the commencement of the requested Interest Period, for a term, and in an amount, comparable to the Interest Period and the amount of the LIBOR Rate Loan requested (whether as an initial LIBOR Rate Loan or as a continuation of a LIBOR Rate Loan or as a conversion of a Base Rate Loan to a LIBOR Rate Loan) by Borrower in accordance with the Agreement (and, if any such rate is below zero, the LIBOR Rate shall be deemed to be zero), which determination shall be made by Agent and shall be conclusive in the absence of manifest error.

“LIBOR Rate Loan” means each portion of an Advance that bears interest at a rate determined by reference to the LIBOR Rate.

“LIBOR Rate Margin” has the meaning set forth in the definition of Applicable Margin.

“Lien” means any mortgage, deed of trust, pledge, hypothecation, assignment, charge in the nature of a security interest, deposit arrangement, in the nature of a security interest, encumbrance, easement, lien (statutory or other), charge in the nature of a security interest, other security interest, preferential arrangement in the nature of a security interest, or other security arrangement, and of any kind or nature whatsoever, including any conditional sale contract or other title retention agreement, the interest of a lessor under a Capital Lease and any synthetic or other financing lease having substantially the same economic effect as any of the foregoing.

“Limited Condition Acquisition” has the meaning specified therefor in Section 1.7 of the Agreement.

“Line Cap” means, as of any date of determination, the lesser of (a) the Maximum Revolver Amount, and (b) the Borrowing Base as of such date of determination.

“Loan Account” has the meaning specified therefor in Section 2.9 of the Agreement.

“Loan Documents” means the Agreement, any Borrowing Base Certificate, the Controlled Account Agreements, the Control Agreements, the Copyright Security Agreement, the Fee Letter, the Guaranties, the Intercompany Subordination Agreement, the Intercreditor Agreement, any Issuer Documents, the Letters of Credit, the Mortgages, the Patent Security Agreement, the Closing Date Ratification Agreement, the Security Agreement, the Trademark Security Agreement, any note or notes executed by Borrower in connection with the Agreement and payable to any member of the Lender Group, any Original Loan Document that remains in full force and effect after the ClosingAmendment Effective Date in accordance with the terms of the Agreement or the Closing Date Ratification Agreement, and any other instrument or agreement entered into, now or in the future, by Borrowerany Loan Party or any of its Restricted Subsidiaries and any member of the Lender Group in connection with the Agreement.  For the avoidance of doubt, no Bank Product Agreement shall constitute a Loan Document.

“Loan Party” means Borrower or any Guarantor.

“Management Agreements” means allthe management agreements between or among Holdings or any of its Subsidiaries, on the one hand, and Sponsor or the Advance Shareholders, on the other handidentified on Schedule M-1 to the Agreement.

“Margin Stock” as defined in Regulation U of the Board of Governors as in effect from time to time.

“Material Adverse Change” means (a) a material adverse change in the business, operations, results of operations, assets, liabilities or financial condition of Borrower and its Restricted Subsidiariesthe Loan Parties, taken as a whole, (b) a material impairment of Borrower’s and its Restricted Subsidiariesthe Loan Parties’ ability to perform their obligations under the Loan Documents to which they are parties or of the Lender Group’s ability to enforce the Obligations or realize upon the Collateral, or (c) a material impairment of the enforceability or priority of the Agent’s Liens with respect to all or a material portion of the Collateral as a result of an action or failure to act on the part of Borrower or its Restricted Subsidiaries.

“Material Asset Sale” shall meanmeans any sale or other disposition, or series of related sales or other dispositions (i.e., separate assets being sold, transferred or otherwise disposed of as part of an identifiable group of related assets and within a reasonably limited time period), of assets by Borrower or any of its Restricted Subsidiariesany Loan Party where the aggregate consideration therefor is equal to, or in excess of, $10,000,00015,000,000.

“Material Contract” means, with respect to any Loan Party, (i) each contract or agreement to which such Loan Party or any of its Restricted Subsidiaries is a party involving aggregate consideration payable to or by such Loan Party or such Restricted Subsidiary of $10,000,00050,000,000 or more in any fiscal yearFiscal Year (other than purchase orders in the ordinary course of the business of such Loan Party or such Restricted Subsidiary and other than contracts that by their terms may be terminated by such Loan Party or such Restricted Subsidiary in the ordinary course of its business upon less than 60 days’ notice without penalty or premium) and (ii) the Management Agreements.

“Maturity Date” has the meaning specified therefor in Section 3.3 of the Agreementmeans June 2, 2021.

“Maximum Revolver Amount” means $150,000,000175,000,000, as such amount may be (a) decreased by the amount of any reductions in the Revolver Commitments made in accordance with Section 2.4(c) of the Agreement or (b) as increased in accordance with Section 2.14 of the Agreement.

“Model” means the model prepared by Borrower and delivered to Agent on or prior to May 10, 2016.

“Moody’s” has the meaning specified therefor in the definition of Cash Equivalents.

“Mortgage Policy” has the meaning specified therefor in Schedule 3.6(a).

“Mortgages” means, individually and collectively, one or more mortgages, deeds of trust, or deeds to secure debt, executed and delivered by Borrowera Loan Party or its Restricted Subsidiaries in favor of Agent, in form and substance reasonably satisfactory to Agent, that encumber the Real Property Collateral.

“Multiemployer Plan” means a “any multiemployer plan” as defined in Section 4001(a)(3) of ERISA to which any Loan Party or any ERISA Affiliate is making, or is accruing an obligation to make, contributions or has any liability, contingent or otherwise.that is subject to Title IV of ERISA and is contributed to by (or to which there is an obligation to contribute of) Parent or a Subsidiary of Parent or an ERISA Affiliate.

“Net Cash Proceeds” means, with respect to the issuance of any Stock, the gross cash proceeds received from such event, net of transaction costs (including, as applicable, any underwriting, brokerage or other customary commissions and reasonable legal, advisory and other fees and expenses associated therewith) received from any such event.

“Net CashIPO Proceeds” means “the Net Cash Proceeds” as such term is defined in the First Lien Term Loan Credit Agreement (as in effect on the Closing Date) received by Parent with respect to the issuance by Parent of Stock in connection with the consummation of an IPO.

“Net Recovery Percentage” means, as of any date of determination, the percentage of the book value of the Borrowing Base Parties’ Inventory that is estimated to be recoverable in an orderly liquidation of such Inventory net of all associated costs and expenses of such liquidation, such percentage to be determined as to each category of Inventory and to be as specified in the most recent appraisal received by Agent from an appraisal company selected by AgentAcceptable Appraisal of Inventory.

“Non-Consenting Lender” has the meaning specified therefor in Section 14.2(a) of the Agreement.

“Non-Defaulting Lender” means each Lender other than a Defaulting Lender.

“Non-Wholly-Owned Subsidiary” shall meanmeans, as to any Person, each Subsidiary of such Person which is not a Wholly-Owned Subsidiary of such Person.

“Not Otherwise Applied” means, with reference to any amount of proceeds of any transaction or event, that such amount (a) was not required to be applied to prepay the Term Loan Facility and (b) was not previously applied (or committed to be applied, provided that such commitment remains outstanding or has not otherwise terminated or expired) in determining the permissibility of a transaction under the Loan Documents where such permissibility was (or may have been) contingent on receipt of such amount or utilization of such amount for a specified purpose (including pursuant to Sections 6.7(a)(i) or 6.9(g)).

“Obligations” means (a) all Advances (inclusive of Extraordinary Advances and Swing Loans), debts, principal, interest (including any interest that accrues after the commencement of an Insolvency Proceeding, regardless of whether allowed or allowable in whole or in part as a claim in any such Insolvency Proceeding), reimbursement or indemnification obligations with respect to Reimbursement Undertakings or with respect to Letters of Credit (irrespective of whether contingent), premiums, liabilities (including all amounts charged to the Loan Account pursuant to the Agreement), obligations (including indemnification obligations), fees (including the fees provided for in the Fee Letter), Lender Group Expenses (including any fees or expenses that accrue after the commencement of an Insolvency Proceeding, regardless of whether allowed or allowable in whole or in part as a claim in any such Insolvency Proceeding), guaranties, and all covenants and duties of any other kind and description owing by any Loan Party arising out of, under, pursuant to, in connection with, or evidenced by the Agreement or any of the other Loan Documents and irrespective of whether for the payment of money, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, and including all interest not paid when due and all other expenses or other amounts that Borrowerany Loan Party is required to pay or reimburse by the Loan Documents or by law or otherwise in connection with the Loan Documents, (b) all debts, liabilities, or obligations (including reimbursement obligations, irrespective of whether contingent) owing by Borrower or any other Loan Party to an Underlying Issuer now or hereafter arising from or in respect of Underlying Letters of Credit, and (c) all Bank Product Obligations; provided, that, anything to the contrary contained in the foregoing notwithstanding, the Obligations shall exclude any Excluded Swap Obligations.  Without limiting the generality of the foregoing, the Obligations of Borrower under the Loan Documents include the obligation to pay (i) the principal of the Advances, (ii) interest accrued on the Advances, (iii) the amount necessary to reimburse Issuing Lender for amounts paid or payable pursuant to Letters of Credit or Reimbursement Undertakings and the amount necessary to reimburse Underlying Issuer for amounts paid or payable pursuant to Letters of Credit, (iv) Letter of Credit commissions, charges, expenses, and fees, (v) Lender Group Expenses, (vi) fees payable under the Agreement or any of the other Loan Documents, and (vii) indemnities and other amounts payable by any Loan Party under any Loan Document.  Any reference in the Agreement or in the Loan Documents to the Obligations shall include all or any portion thereof and any extensions, modifications, renewals, or alterations thereof, both prior and subsequent to any Insolvency Proceeding.

“OFAC” means The Office of Foreign Assets Control of the U.S. Department of the Treasury.

“Original Closing Date” means “Closing Date” as defined in the Original Credit Agreement.

“Original Credit Agreement” has the meaning set forth in the recitals to the Agreement.

“Original Loan Documents” means “Loan Documents” as defined in the Original Credit Agreement.

“Originating Lender” has the meaning specified therefor in Section 13.1(e) of the Agreement.

“Other Taxes” means all present or future stamp, court, excise, value added, or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document.

“Overadvance” means, as of any date of determination, that the Revolver Usage is greater than any of the limitations set forth in Section 2.1 or Section 2.11 of the Agreement.

“Parent” means Pierre Food Holding CorporationAdvancePierre Foods Holdings, Inc., a Delaware corporation.

“Participant” has the meaning specified therefor in Section 13.1(e) of the Agreement.

“Participant Register” has the meaning specified therefor in Section 13.1 of the Agreement.

“Pass-Through Foreign Holding Company” shall meanmeans any Subsidiary that qualifies as a Foreign Subsidiary pursuant to clause (ii) or (iii) of the definition thereof (after giving effect to the proviso therein).

“Patent Security Agreement” has the meaning specified therefor in the Security Agreement.

“Patriot Act” has the meaning specified therefor in Section 4.18 of the Agreement.

“Payment Conditions” mean, at the time of determination with respect to a proposed payment to fund a Specified Transaction, that:

(a)no Default or Event of Default then exists or would arise as a result of the consummation of such Specified Transaction (calculated, at the election of Borrower, with respect to any Limited Condition Acquisition, as of the relevant LCA Test Date),

(b)either

(i)Excess Availability, (x) at all times during the 30 consecutive days immediately preceding the date of such proposed payment and the consummation of such Specified Transaction, calculated on a pro forma basis as if such proposed payment was made, and the Specified Transaction was consummated, on the first day of such period, and (y) on the date of, and after giving effect to, such proposed payment and Specified Transaction, in each case, is not less than 17.5% of the Line Cap, or

(ii)both (A) the Fixed Charge Coverage Ratio of Parent and its Restricted Subsidiaries (calculated on a Pro Forma Basis) is equal to or greater than 1.00:1.00 for the Calculation Period most recently ended for which financial statements are required to have been delivered to Agent pursuant to Section 5.1 of the Agreement, and (B) Excess Availability, (x) at all times during the 30 consecutive days immediately preceding the date of such proposed payment and the consummation of such Specified Transaction, calculated on a pro forma basis as if such proposed payment was made, and the Specified Transaction was consummated, on the first day of such period, and (y) on the date of, and after giving effect to, such proposed payment and Specified Transaction, in each case, is not less than 12.5% of the Line Cap, and

(c)Borrower has delivered a certificate to Agent certifying that all applicable conditions described in clauses (a) and (b) above have been satisfied.

“PBGC” means the Pension Benefit Guaranty Corporation established pursuant to Section 4002 of ERISA, or any successor agencythereto.

“Pension Plan” means any Employee Benefit Plan, other than a Multiemployer Plan, which is subject to the provisions of Title IV of ERISA or Section 412 of the Code.

“Permitted Acquired Debt” has the meaning set forth in the definition of Term Loan Permitted Indebtedness.

“Permitted Acquisition” means the acquisition of an Acquired Entity or Business by BorrowerParent or any of its Restricted Subsidiaries so long as:

(a)no Default or Event of Default shall have occurred and be continuing immediately after giving effect toor would result from the consummation of the proposed acquisition; provided that, in the case of a Limited Condition Acquisition, the foregoing shall be subject to the relevant terms of Section 1.7 of the Agreement;

(b)concurrently with the consummation of such acquisition, Borrowerthe Loan Parties shall, and shall cause itstheir Restricted Subsidiaries to, comply with the provisions of Section 5.11 within the time periods required thereby;

(c)Borrower shall have given Agent and the Lenders(for delivery to each Lender) at least 10 Business Days’ prior written notice of such acquisition (or such shorter period of time as may be reasonably acceptable to Agent), which notice shall describe in reasonable detail the principal terms and conditions of such acquisition;

(d)the Acquired Entity or Business being acquired shall be in a line of business permitted by Section 6.6 of the Agreement; and

(e)Borrower and its Restricted Subsidiaries shall be in compliance with the financial covenant set forth in Section 7 of the Agreement on a Pro Forma Basis (whether or not a Covenant Test Date shall have occurred),either (i) immediately before and immediately after giving effect to such acquisition (including any Indebtedness incurred or assumed in connection therewith) as of the last day of the fiscal quarter most recently ended for which quarterly financial statements have been (or are required to have been) delivered pursuant to Section 5.1;, each of the Payment Conditions shall be satisfied, or (ii) the Aggregate Consideration payable in respect of all Permitted Acquisitions (including the proposed acquisition and including deferred payment obligations, but excluding any Permitted Acquisition consummated in reliance upon the foregoing clause (e)(i)) shall not exceed $50,000,000.

(f)in the case of a Permitted Acquisition of an Excluded Subsidiary or a Non-Wholly Owned Subsidiary (or assets which will be acquired by an Excluded Subsidiary or a Non-Wholly Owned Subsidiary pursuant to a Permitted Acquisition), the Aggregate Consideration (excluding any consideration paid in common stock of Holdings or any parent thereof) payable for the proposed Permitted Acquisition, when added to the Aggregate Consideration (excluding any consideration paid in common stock of Holdings or any parent thereof) paid or payable for all other Permitted Acquisitions of Excluded Subsidiaries and Non-Wholly Owned Subsidiaries (and assets acquired by Excluded Subsidiaries and Non-Wholly Owned Subsidiaries pursuant to all other Permitted Acquisitions), does not exceed (i) $50,000,000 plus (ii) the amount of any other provision of Section 6.11 of the Agreement that may be utilized to make an Investment (it being understood that any such amounts used under this clause (ii) shall reduce the amounts available under the respective provisions of Section 6.11 of the Agreement (including as such provisions may be set forth in the definition of Permitted Investments)),

(g)in the case of  Permitted Acquisition of a Foreign Subsidiary (or assets located outside the United States which will be acquired pursuant to a Permitted Acquisition), the portion of the Aggregate Consideration (excluding any consideration paid in common stock of Holdings or any parent thereof) payable for the proposed Permitted Acquisition attributable to the acquisition of a Foreign Subsidiary, when added to the Aggregate Consideration (excluding any

consideration paid in common stock of Holdings or any parent thereof) paid or payable for all other Permitted Acquisitions of Foreign Subsidiaries (and the portion of the Aggregate Consideration (excluding any consideration paid in common stock of Holdings or any parent thereof) paid for assets located outside the United States acquired pursuant to all other Permitted Acquisitions), does not exceed (i) $75,000,000 plus (ii) the amount of any other provision of Section 6.11 of the Agreement that  may be utilized to make an Investment (it being understood that any such amounts used under this clause (ii) shall reduce the amounts available under the respective provisions of Section 6.11 of the Agreement (including as such provisions may be set forth in the definition of Permitted Investments)), and

(h)the Excess Availability Threshold will be satisfied immediately after giving effect to such Acquisition.

“Permitted Acquisition Additional Cost-Savings” shall meanmeans, in connection with any Permitted Acquisition or other Permitted Investment, those expected pro forma cost savings, operating expense reductions and synergies projected in good faith by BorrowerParent to be realized as a result of specified actions taken within the 12 month period following the consummation of such Permitted Acquisition or other Permitted Investment or committed or expected to be taken (in either case, whether or not actually taken in such period) within such 12 month period, net of the benefits actually realized for the respective period to the extent such are already included in the determination of consolidated net earnings for the applicable period, in each case in connection with the combination of the operations of the respective Acquired Entity or Business acquired pursuant to such Permitted Acquisition or other Permitted Investment with the operations of BorrowerParent and its Subsidiaries, which cost-savings adjustments shall be (i) estimated on a good faith basis by BorrowerParent, (ii) described (in reasonable detail) in an officer’s certificate delivered by an Authorized Person to Agent and (iii) net of the benefits actually realized for the respective period to the extent such are already included in the determination of consolidated net earnings for the applicable period.

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

“Permitted Disposition Additional Cost-Savings” shall meanmeans, in connection with any Material Asset Sale, those expected pro forma cost savings, operating expense reductions and synergies projected in good faith by BorrowerParent to be realized as a result of specified actions taken within the 12 month period following the consummation of such Material Asset Sale or committed or expected to be taken (in either case, whether or not actually taken in such period) within such 12 month period, which cost-savings adjustments shall be (i) estimated on a good faith basis by BorrowerParent, (ii) described (in reasonable detail) in an officer’s certificate delivered by an Authorized Person to Agent, and (iii) net of the benefits actually realized for the respective period to the extent such are already included in the determination of consolidated net earnings for the applicable period.

“Permitted Dispositions” means:

(a)sales, abandonment, or other dispositions of Equipment that is substantially worn, damaged, obsolete, or surplus in the ordinary course of business and sales of property that is no longer used or usable in the conduct of the business of BorrowerParent and its Restricted Subsidiaries,

(b)sales of Inventory to buyers in the ordinary course of business,

(c)the use or transfer of money or Cash Equivalents in a manner that is not prohibited by the terms of the Agreement or the other Loan Documents,

(d)the licensing and sub-licensing, on a non-exclusive basis, of patents, trademarks, copyrights, and other intellectual property rights in the ordinary course of business,

(e)the granting of Permitted Liens,

(f)the sale or discount, in each case without recourse in the ordinary course of business, of accounts receivable (other than Eligible Accounts and Eligible Credit Card Receivables) arising in the ordinary course of business, but only in connection with the compromise or collection thereof and not as part of a financing transaction,

(g)any involuntary loss, damage or destruction of property and the disposition of the assets so damaged or destroyed,

(h)any involuntary condemnation, seizure or taking, by exercise of the power of eminent domain or otherwise, or confiscation or requisition of use of property,

(i)the leasing or subleasing of assets of BorrowerParent or its Restricted Subsidiaries in the ordinary course of business,

(j)the sale or issuance of Stock (other than Prohibited Preferred Stock) of (i)Stock constituting Disqualified Equity Interests) of (i) Parent or Holdings or (ii) of Borrower or of any Restricted Subsidiary of Borrower to Borrower or to any Wholly-Owned Subsidiary of Borrower that is a Restricted Subsidiary,

(k)the lapse, abandonment or cancellation of registered patents, trademarks and other intellectual property of Borrower andParent or any of its Restricted Subsidiaries to the extent, in the reasonable business judgment of BorrowerParent, it is not economically desirable in the conduct of their business to maintain such intellectual property, (so long as, in each case, such lapse, abandonment or cancellation is not materially adverse to the interests of the Lender Group),

(l)the making of Restricted Payments that are expressly permitted to be made pursuant to the Agreement,

(m)the making of Permitted Investments,

(n)so long as no Event of Default has occurred and is continuing or would immediately result therefrom, transfers of assets (i) from any Loan Party (other than Parent) to a Loan Party (other than Parent), and (ii) from any Restricted Subsidiary of Borrowerany Loan Party that is not a Loan Party to any Loan Party or any other Restricted Subsidiary of Borrowerany Loan Party,

(o)grants of credits and allowances to distributors, customers or suppliers in the ordinary course of business,

(p)sales or other dispositions of assets (other than Borrowing Base Collateral) in connection with any Sale/Leaseback Transaction permitted under the Agreement, and

(q)sales, leases, conveyances or other dispositions of assets (including any licensing or sub-licensing of intellectual property) (other than the Stock of any Wholly-Owned Subsidiary, unless all of the Stock of such Wholly-Owned Subsidiary is sold in accordance with this clause (lq)) not otherwise permitted in clauses (a) through (p) above made at least at fair market value (as determined in good faith by Borrower) so long as (i) at the time of such conveyance, sale, lease or other disposition (including any license or sub-license of intellectual property) (other than any such conveyance, sale, lease or disposition made pursuant to a legally binding commitment entered into at a

time when no Event of Default has occurred and is continuing), no Event of Default shall have occurred and be continuing or would result therefrom, (ii) Borrowerwith respect to any such transaction (or series of related transactions) in which the purchase price is in excess of $1,000,000, Parent or the respective Restricted Subsidiary receives at least fair market value for such assets, (iii) with respect to any such transaction in which the purchase price is in excess of $10,000,00015,000,000, the consideration received by Borrower and its Restricted Subsidiaries consists of at least 75% cash or Cash Equivalents (provided that, for purposes of this clause (q), the following shall be deemed to be cash:  (x) any liabilities (as shown on Borrower’sParent’s or a Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto) of BorrowerParent or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the payment in cash of the Obligations, that are assumed by the transferee of any such assets or that are otherwise cancelled or terminated in connection with the transaction with such transferee and for which Holdings, BorrowerParent and all of its Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, (y) any securities, notes, or other obligations or assets received by BorrowerParent or the applicable Restricted Subsidiary from such transferee that are converted by BorrowerParent or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of the applicable transaction and (z) any non-cash consideration received by BorrowerParent or its Restricted Subsidiaries having an aggregate fair market value, (determined as of the closing of the applicable conveyance, sale, lease or disposition for which such non-cash consideration is received), taken together with all other non-cash consideration received pursuant to this clause (z) that is at that time outstanding, not to exceed the greater of (i) $15,000,000 and (ii) 1.55.0% of Total Assets at the time of the receipt of such non-cash consideration, with the fair market value of each item of such non-cash consideration being measured at the time received and without giving effect to subsequent changes in value)EBITDA for the most recently ended Calculation Period at any time outstanding, and (iv) the net sale proceeds therefrom are applied or reinvested as (and to the extent) required by the terms of the Term Loan FacilitiesFacility; provided, that in the case of any disposition of Borrowing Base Collateral with an aggregate value in excess of $10,000,00015,000,000, (A) immediately after giving effect to such disposition, the Excess Availability Threshold willPayment Conditions shall be satisfied, and (B) Borrower shall provide Agent with at least 3 Business Days’ (or such shorter period of time as may be acceptable to Agent in its sole discretion) prior notice of such disposition, together with a Borrowing Base Certificate showing the pro forma calculation of the Borrowing Base immediately after giving effect to such disposition.

“Permitted Holders” shall meanmeans (a) Sponsor, (b) the Advance Shareholders, (as defined in the Credit Agreement as in effect on the Closing Date), (c) any current or subsequently appointed members of management of Parent, Borrower or Holdings and family members thereof, (d) any trust, corporation, partnership or other entity, the beneficiaries, stockholders, partners, members, managers, owners or Persons beneficially holding a controlling interest of which (or persons which are the principal beneficiaries of which) consist of any one or more of the Persons referred to in the immediately preceding clauses (a), (b) or (c), (e) any group (as defined in the rules promulgated under Section 13(d) of the Exchange Act), which is controlled by any of the Persons referred to in the immediately preceding clauses (a), (b), (c), and (d), or which Persons specified in such clauses beneficially own (as defined in Rule 13d-3 and 13d-5 under the Exchange Act) a majority of the Stock held by such group (but without giving effect to the existence of such group), and (f) any Affiliates of any of the Persons referenced in clauses (a), (b), (c), (d) or (e).

“Permitted Indebtedness” means:

(a)Indebtedness evidenced by the Agreement and the other Loan Documents, together with Indebtedness owed to Underlying Issuers with respect to Underlying Letters of Credit,

(b)Indebtedness as of the Amendment Effective Date set forth on Schedule 4.19P-3 to the Agreement and any Refinancing Indebtedness in respect of such Indebtedness,

(c)Permitted Purchase Money Indebtedness and any Refinancing Indebtedness in respect of such Indebtedness,

(d)Indebtedness arising in connection with the endorsement of instruments or other payment items for deposit,

(e)Indebtedness consisting of (i) other than with respect to Sponsor Guaranteed Bonds which are addressed in clause (f) below, guarantees incurred in the ordinary course of business with respect to surety and appeal bonds, performance bonds, bid bonds, appeal bonds, completion guarantee and similar obligations; (ii) guarantees arising with respect to customary indemnification obligations to purchasers in connection with Permitted Dispositions and Permitted Acquisitions; and (iii) guarantees with respect to Indebtedness of BorrowerParent or one of its Restricted Subsidiaries, to the extent that the Person that is obligated under such guaranty could have incurred such underlying Indebtedness,

(f)Indebtedness incurred in the ordinary course of business under performance, surety, statutory, and appeal bonds, provided that, in the case of any such Indebtedness arising in respect of any performance or surety bond issued in respect of Borrower’s U.S.D.A. contract (herein, a “Sponsor Guaranteed Bond”) that is guaranteed by Sponsor, Sponsor shall have executed and delivered to Agent a waiver of its subrogation rights (and other equitable rights) that will or may arise if Sponsor performs under such guaranty,

(g)Indebtedness of the BorrowerParent or any of its Restricted Subsidiaries consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, incurred in the ordinary course of business,

(h)the incurrence by BorrowerParent or its Restricted Subsidiaries of Indebtedness under Hedge Agreements (including futures or forward contracts with respect to commodities), in each case, so long as the entering into of such Hedge Agreements is for bona fide hedging activitiesin the ordinary course of business and not for speculative purposes,

(i)unsecured Indebtedness incurred in respect of netting services, overdraft protection, and other like services, in each case, incurred in the ordinary course of business, so long as such Indebtedness is extinguished within 4 Business Days of its incurrence,

(j)Indebtedness incurred in the ordinary course of business in respect of credit cards, credit card processing services, debit cards, stored value cards, commercial cards (including so-called “purchase cards”, “procurement cards” or “p-cards”), or Cash Management Services,

(k)Indebtedness of Parent or a Restricted Subsidiary of BorrowerParent acquired pursuant to, incurred, assumed or issued to finance a Permitted Acquisition or anotherother Permitted Investment (or Indebtedness assumed at the time of a Permitted Acquisition or other permitted acquisition of an asset securing such Indebtedness) (any such Indebtedness, “Permitted Acquired Debt”) and any Refinancing Indebtedness in respect thereof; provided that (i) such Indebtedness was not incurred in connection with, or in anticipation or contemplation of, such Permitted Acquisition or other Permitted Investment, and (ii) (x) such Indebtedness does not exceed an aggregate principal amount of $75,000,000 at any time outstanding or (y) the Total Net Leverageeither (1) the Interest Coverage Ratio as of the last day of the most recently ended Calculation Period (calculated on a Pro Forma Basis as if such Permitted Acquisition or other Permitted Investment (as well ashad occurred on the first day of such Calculation Period) is no less

than 2.00:1.00 or (2) the Interest Coverage Ratio as of the last day of the most recently ended Calculation Period (calculated on a Pro Forma Basis as if such Permitted Acquisition or other Permitted Investment had occurred on the first day of such Calculation Period) is no less than the Interest Coverage Ratio as of the last day of the most recently ended Calculation Period (calculated on a Pro Forma Basis without giving pro forma effect to such Permitted Acquisition or other Permitted Investment, but with giving pro forma effect to any other Permitted Acquisitions andor other Permitted Investments theretofore consummated after the first day of such Calculation Period) had occurred on the first day of such Calculation Period) does not exceed 5.50:1.00 (and in each case, any Refinancing Indebtedness in respect thereof);

(l)Indebtedness composing Permitted Investments,

(m)Indebtedness of  BorrowerParent and its Restricted Subsidiaries under the First Lien Term Loan Facility in an aggregate principal amount not to exceed the First LienTerm Loan Debt Cap, and any Refinancing Indebtedness in respect of such Indebtedness, subject to the terms of the Intercreditor Agreement and without duplication of any Indebtedness permitted to be incurred under clause (zy) of this definition,

(n)Indebtedness of Borrower and its Restricted Subsidiaries under the Second Lien Term Loan Facility in an aggregate principal amount not to exceed the Second Lien Debt Cap, and any Refinancing Indebtedness in respect of such Indebtedness, subject to the terms of the Intercreditor Agreement and without duplication of any Indebtedness permitted to be incurred under clause (z) of this definition,[reserved],

(o)Indebtedness of Borrower or any Subsidiary that is a Guarantorany Loan Party issued to a seller on the date of the consummation of a Permitted Acquisition for the purpose of consummating such Permitted Acquisition, so long as (i) no Event of Default has occurred and is continuing or would result therefrom, (ii) the aggregate principal amount of all such Indebtedness does not exceed $50,000,000 at any time outstanding and (iii) such Indebtedness is unsecured;

(p)Indebtedness of BorrowerParent or any Restricted Subsidiary in respect of indemnification, working capital or similar adjustments of purchase price, “earn-out” or similar performance-based deferred purchase price arrangements, non-competes, transition services or similar obligations incurred in connection with acquisitions and dispositions permitted under the terms of the Agreement,

(q)Indebtedness consisting of Indebtedness issued by BorrowerParent or a Restricted Subsidiary to future, present or former officers, directors, employees, members of management or consultants thereof or any direct or indirect parent thereof, their respective estates, spouses, former spouses, domestic partners or former domestic partners, in each case to finance the purchase or redemption of Stock of Parent, Holdings, Borrower, a or any Restricted Subsidiary or any of their direct or indirect parent companies permitted by Section 6.9 of the Agreement,

(r)unsecured Indebtedness in respect of obligations of BorrowerParent or any Restricted Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms in the ordinary course of business and not in connection with the borrowing of money,

(s)Indebtedness representing deferred compensation or similar arrangements to directors, officers, employees, members of management, consultants or independent contractors of Borrower (or its direct or indirect parent)Parent and its Restricted Subsidiaries incurred in the ordinary

course of business or otherwise incurred in connection with any Permitted Acquisition or other Permitted Investment,

(t)Indebtedness incurred on behalf of, or representing guarantees of Indebtedness of, joint ventures of BorrowerParent or any of its Restricted SubsidiarySubsidiaries in an aggregate principal amount not to exceed, at any one time outstanding, $10,000,000, provided that, at the time of the incurrence of any such Indebtedness and immediately after giving effect thereto, the Excess Availability Threshold shall be satisfied,the greater of $15,000,000 and 5.0% of EBITDA for the most recently ended Calculation Period,

(u)Indebtedness of Restricted Subsidiaries that are not Qualified CreditLoan Parties in an aggregate principal amount outstanding at any time not to exceed $15,000,000,

(v)Indebtedness of BorrowerParent and its Restricted Subsidiaries relating to Sale/Leaseback Transactions in an aggregate principal amount not to exceed $30,000,000the greater of $50,000,000 and 20.0% of EBITDA for the most recently ended Calculation Period (and Refinancing Indebtedness in respect thereof),

(w)Contribution Indebtedness and any Refinancing Indebtedness with respect thereto,

(xw)Permitted Ratio Debt; provided, that the aggregate outstanding principal amount of Indebtedness incurred under this clause (xw) byof Restricted Subsidiaries that are not Qualified Loan Parties shall not exceed the greater of (x) $50,000,000 and (y) 20.0% of EBITDA at any time (and in each case, Refinancing Indebtedness in respect thereof),

(yx)so long as no Default or Event of Default has occurred and is continuing at the time of the incurrence thereof, or would result therefrom, additional Indebtedness incurred by Holdings, BorrowerParent and its Restricted Subsidiaries in an aggregate principal amount not to exceed at any time outstanding the greater of (x) $50,000,000 and (y) 4.520.0% of Total AssetsEBITDA for the most recently ended Calculation Period, and

(zy)Permitted Term Loan Indebtedness., and

(z)all premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (y) above.

For purposes of determining compliance with the foregoing, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Permitted Indebtedness described in clauses (a) through (z) above, Borrower shall, in its sole discretion, classify and reclassify or later divide, classify or reclassify such item of Indebtedness (or any portion thereof) and will only be required to include the amount and type of such Indebtedness in one or more of the above clauses.

“Permitted Intercompany Advances” means loans and advances made by (a) Holdings or a Qualifiedany Loan Party to a Qualifiedanother Loan Party, (b) a Restricted Subsidiary of Parent that is not a Qualified Loan Party to another Restricted Subsidiary of Parent that is not a Qualified Loan Party, and (c) a Restricted Subsidiary of Parent that is not a Qualified Loan Party to any Qualified Loan Party, in each such case, so long as the parties thereto are partyeach such loan or advance made to a Loan Party is subject to the Intercompany Subordination Agreement.

“Permitted Investments” means:

(a)Investments in cash and Cash Equivalents,

(b)Investments in negotiable instruments deposited or to be deposited for collection in the ordinary course of business,

(c)advances made in connection with purchases of goods or services in the ordinary course of business,

(d)Investments received in settlement of amounts due to any Loan Party or any of its Restricted Subsidiaries effected in the ordinary course of business or owing to any Loan Party or any of its Restricted Subsidiaries as a result of Insolvency Proceedings involving an Account Debtor or upon the foreclosure or enforcement of any Lien in favor of a Loan Party or its Restricted Subsidiaries,

(e)Investments owned by any Loan Party or any of its Restricted Subsidiaries on the Closing DateAmendment Effective Date and set forth on Schedule P-1 to the Agreement; provided that any additional Investments made with respect thereto shall be permitted only if permitted under the other clauses of this definition,

(f)guarantees permitted under the definition of Permitted Indebtedness,

(g)Permitted Intercompany Advances,

(h)Stock or other securities acquired in connection with the satisfaction or enforcement of Indebtedness or claims due or owing to a Loan Party or its Restricted Subsidiaries (in bankruptcy of customers or suppliers or otherwise outside the ordinary course of business) or as security for any such Indebtedness or claims,

(i)deposits of cash made in the ordinary course of business to secure performance of operating leases or other contractual obligations not constituting Indebtedness, and Liens permitted under clauses (i), (j), (s) and (u) of the definition of Permitted Liens to the extent constituting Investments,

(j)non-cash loans and advances to employees, officers, and directors of BorrowerParent or any of its Restricted Subsidiaries for the purpose of purchasing Stock in Parent, Holdings or Borrower so long as the proceeds of such loans are used in their entirety to purchase such Stock,

(k)Investments by Borrower and its Restricted Subsidiaries not otherwise permitted in this definition, provided that (i) the aggregate amount of Investments made pursuant to this clause (k) that are at that time outstanding shall not exceed the greater of (x) $25,000,000 and (y) 2.0% of Consolidated Total Assets (determined without regard to any write-downs or write-offs thereof but taking into account any disposition proceeds, return of capital, repayment, interest, dividend or distribution in respect thereof), (ii) no Default or Event of Default has occurred and is continuing at the time of the making of such Investment or would result therefrom, and (iii) at the time of the making of any such Investment and immediately after giving effect thereto, the Excess Availability Threshold shall be satisfied,

(lk)Permitted Acquisitions,

(ml)Capital Expenditures,

(m)Parent and its Restricted Subsidiaries may own the Stock of their respective Subsidiaries created or acquired in accordance with the terms of the Agreement (so long as all amounts invested in such Subsidiaries after the Amendment Effective Date are independently permitted under another provision of this definition of Permitted Investments),

(n)Investments made by any Loan Party in any Restricted Subsidiary of Borrower which is not a Loan Party, provided that (i) the aggregate amount of all such Investments made pursuant to this clause (n) (for this purpose, taking the fair market value of any property (other than cash) so contributed at the time of such contribution) shall not at any time outstanding exceed an amount equal to $20,000,000 (determined without regard to any write-downs or write-offs of such loans and advances but taking into account any return of capital, repayment, dividend or distribution in respect thereof), and (ii) at the time of the making of any such Investment and immediately after giving effect thereto, the Excess Availability Threshold shall be satisfied,

(o)(w) Investments (including the acquisition of Stock) made by Holdings in Borrower, (x) Investments (including the acquisition of Stock) made by any Qualified Loan Party in any other Qualified Loan Party, (y) Investments (including the acquisition of Stock) made by any Qualified Loan Party in any Restricted Subsidiary of Borrower which is not a Qualified Loan Party; provided that (i) the aggregate amount of Investments on and after the Closing Date made pursuant to preceding subclause (y) (for this purpose, taking the fair market value of any property (other than cash) so contributed at the time of such contribution), when added to the aggregate outstanding principal amount of Investments made by a Loan Party in a Restricted Subsidiary which is not a Qualified Loan Party pursuant to the foregoing clause (n) of this definition (determined without regard to any write-downs or write-offs thereof but taking into account any return of capital, repayment, dividend or distribution in respect thereof), shall not exceed an amount equal to $10,000,000; provided that such limit shall not be applicable if such Restricted Subsidiary becomes a Qualified Loan Party following such Investment and (ii) Agent’s Lien in any assets so contributed to a Qualified Loan Party shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such contribution) and all actions required to maintain said perfected status have been taken,

(pn)Investments by any Restricted Subsidiary that is not a Loan Party in any other Restricted Subsidiary of BorrowerParent (whether or not a Loan Party),

(qo)Investments arising out of the receipt by BorrowerParent or any of its Subsidiaries of non-cash consideration for any sale of assets permitted under Section 6.4 of the Agreement,

(rp)Investments of the BorrowerParent or any Subsidiary under Hedge Agreements that are Permitted Indebtedness hereunder,

(sq)loans and advances to officers and employees of BorrowerParent and its Restricted Subsidiaries for moving, relocation and travel expenses and other similar expenditures, (i) in the ordinary course of business in an aggregate amount not to exceed $12,000,000 outstanding at any time (determined without regard to any write-downs or write-offs of such loans and advances but taking into account any return of capital, repayment, dividend or distribution in respect thereof), (ii) in connection with such Person’s purchase of Stock of Borrower or any direct or indirect parent of BorrowerParent or Holdings, and (iii) for business related expenses, moving expenses and other similar expenses, in each case incurred in the ordinary course of business or consistent with past practices),

(t)so long as no Default or Event of Default has occurred and is continuing at the time of the making of such Investment or would result therefrom, Investments in Foreign Subsidiaries to finance Permitted Acquisitions of Foreign Subsidiaries (or assets located outside the

United States which will be acquired pursuant to a Permitted Acquisition) in accordance with clause (g) of the definition of Permitted Acquisition,

(u)additional Investments at any time not in an amount (valued at the time of the making thereof, and without giving effect to any write downs or write offs thereof) not to exceed the portion, if any, of the Available Amount on such date that Borrower elects to apply to this clause (u), such election to be specified in a written notice of an Authorized Person of Borrower calculating in reasonable detail the amount of Available Amount immediately prior to such election and the amount thereof elected to be so applied, provided that (i) no Default or Event of Default has occurred and is continuing at the time of the making of such Investment or would result therefrom, and (ii) at the time of the making of any such Investment and immediately after giving effect thereto, the Excess Availability Threshold shall be satisfied, and

(r)Investments consisting of Liens, fundamental changes, sales or other dispositions and Indebtedness (other than by reference to this clause (r)) under Sections 6.1, 6.2, 6.3 and 6.4, respectively;

(s)Investments to the extent that payment for such Investments is made with Stock (other than Stock constituting Disqualified Equity Interests) of Parent (or any direct or indirect parent thereof) or Net Cash Proceeds thereof;

(t)guarantees and other contingent obligations in respect of operating leases or of other obligations that do not constitute Indebtedness, in each case, entered into by or of Parent or any Restricted Subsidiary in the ordinary course of business;

(u)the forgiveness or conversion to Stock of any intercompany Indebtedness owed to Parent or any of its Restricted Subsidiaries otherwise permitted by Section 6.11; and

(v)other Investments in joint ventures in an aggregate amount not to exceed $10,000,000 outstanding at any time, provided that, at the time of the making of any such Investmentso long as immediately before and immediately after giving effect thereto, the Excess Availability Thresholdto each such Investment, each of the Payment Conditions shall be satisfied.

For purposes of determining compliance with the foregoing definition and Section 6.11 of the Agreement, if any Investment (or a portion thereof) would be permitted pursuant to one or more provisions described above, Borrower may divide and classify such Investment (or a portion thereof) in any manner that complies with this definition and Section 6.11 and may later divide and reclassify any such Investment so long as the Investment (as so divided and/or reclassified) would be permitted to be made in reliance on the applicable exception as of the date of such reclassification.

“Permitted Liens” means

(a)Liens granted to, or for the benefit of, Agent to secure the Obligations,

(b)Liens (i) on Borrowing Base Collateral, for unpaid taxes, assessments, or other governmental charges or levies that either (x) are not yet delinquent, or (y) do not have priority over the Agent’s Liens and the underlying taxes, assessments, or charges or levies are the subject of Permitted Protests, and (ii) on Collateral (other than Borrowing Base Collateral), for taxes, assessments or governmental charges or levies not yet delinquent (y) which are being contested in good faith and by appropriate proceedings for which adequate reserves have been established in accordance with GAAP and (z) with respect to which the failure to make payment could not reasonably be expected to result in a Material Adverse Change,

(c)judgment Liens arising solely as a result of the existence of judgments, orders, or awards that do not constitute an Event of Default under Section 8.3 of the Agreement,

(d)Liens set forth on Schedule P-12 to the Agreement; provided, that to qualify as Permitted Lien any such Lien described on Schedule P-12 shall only secure the Indebtedness that it secures on the ClosingAmendment Effective Date and any Refinancing Indebtedness in respect thereof,

(e)the interests of lessors under operating leases and non-exclusive licensors under license agreements,

(f)purchase money Liens on fixed assets or the interests of lessors under Capital Leases to the extent that such Liens or interests secure Permitted Purchase Money Indebtedness and so long as (i) such Lien attaches only to the fixed asset purchased or acquired and the proceeds thereof and accessions thereto, and (ii) such Lien only secures the Indebtedness that was incurred to acquire the fixed asset purchased or acquired or any Refinancing Indebtedness in respect thereof,

(g)Liens arising by operation of law (or which are unperfected and arise by virtue of contract terms contained in standard form non-negotiated contracts) in favor of warehousemen, landlords, carriers, mechanics, materialmen, laborers, or suppliers, incurred in the ordinary course of business and not in connection with the borrowing of money, and which Liens either (i) are for sums not delinquent more than 30 days, or (ii) are the subject of Permitted Protests,

(h)Liens on amounts deposited to secure Borrower’sParent’s and its Restricted Subsidiaries’ obligations in connection with obtaining worker’s compensation or other unemployment insurance,

(i)Liens on amounts deposited to secure Borrower’sParent’s and its Restricted Subsidiaries’ obligations in connection with the making or entering into of bids, tenders, or leases in the ordinary course of business and not in connection with the borrowing of money,

(j)Liens on amounts deposited to secure Borrower’sParent’s and its Restricted Subsidiaries’ reimbursement or indemnity obligations with respect to surety or appeal bonds obtained in the ordinary course of business,

(k)with respect to any Real Property, easements, rights of way, andleases, subleases, encroachments, survey exceptions, zoning restrictions that existed on the Closing Date or, if later, the date of acquisition of such Real Property, or, and other similar charges or encumbrances and minor title deficiencies, in each case, not securing Indebtedness and not materially interfering with the ordinary conduct of the business of Holdings, BorrowerParent or any of theits Restricted Subsidiaries, taken as a whole,

(l)non-exclusive licenses of patents, trademarks, copyrights, and other intellectual property rights in the ordinary course of business,

(m)Liens that are replacements of Permitted Liens to the extent that the original Indebtedness is the subject of permitted Refinancing Indebtedness and so long as the replacement Liens only encumber those assets that secured the original Indebtedness and theany proceeds of and accessionaccessions to such assets,

(n)rights of setoff or bankers’ liens upon deposits of cash in favor of banks or other depository institutions, solely to the extent incurred in connection with the maintenance of such deposit accounts in the ordinary course of business,

(o)Liens granteddeposits made or other Liens provided to secure liabilities to insurance carriers under insurance or self-insurance arrangements, including Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto, in the ordinary course of business on the unearned portion of insurance premiums securing the financing of insurance premiums to the extent the financing is permitted under the definition of Permitted Indebtedness,

(p)Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods,

(q)Liens in and to the Collateral to secure the Term Loan FacilitiesFacility or any Term Loan Permitted Indebtedness (or Hedge Agreements secured by such Collateral pursuant to the First Lien Term Loan Documents), in each case, subject to the terms of the Intercreditor Agreement,

(r)other Liens securing obligations in an aggregate amount not to exceed (i) with respect to Borrowing Base Collateral, $5,000,000, and (ii) with respect to Term Loan Priority Collateral,  $35,000,000,the greater of (x) $50,000,000 and (y) 20.0% of EBITDA for the most recently ended Calculation Period, in each case determined as of the date of incurrence,

(s)Liens on cash and Cash Equivalents or similar securities deposited as collateral to secure obligations under Hedge Agreements permitted to be entered into under the Agreement,

(t)Liens on property or assets acquired pursuant to a Permitted Acquisition or another Permitted Investment, or on property or assets of a Restricted Subsidiary of Borrower in existence at the time such Restricted Subsidiary is acquired pursuant to a Permitted Acquisition or other Permitted Investment so long as (i) any Indebtedness that is secured by such Liens is permitted to exist under clause (k) of the definition of Permitted Indebtedness, (ii) such Indebtedness was not incurred in connection with, or contemplation or anticipation of, such acquisition and (iii) such Lien attaches only to the asset purchased or acquired and improvements thereon, the proceeds thereof and improvements and accessions thereto,

(u)Liens on earnest money deposits made in connection with any letter of intent or purchase agreement with respect to a Permitted Acquisition or a Permitted Investment and Liens that may be deemed to exist by reason of any agreement to sell assets in a Permitted Disposition,

(v)Liens arising from precautionary UCC financing statements or consignments entered into in connection with any transaction otherwise permitted under the Agreement;

(w)(i) Liens on Stock in joint ventures securing obligations of such joint ventures and (ii) customary rights of first refusal and tag, drag and similar rights in joint venture agreements entered into in the ordinary course of business;  and

(x)Liens securing obligations incurred in connection with any Sale/Leaseback Transaction; provided that the aggregate principal amount of any such Indebtedness outstanding at any time shall not exceed $30,000,000the greater of (A) $50,000,000 and (B) 20.0% of EBITDA for the most recently ended Calculation Period, in each case determined as of the date of incurrence; and

(y)Liens arising out of any conditional sale, title retention, consignment or other similar arrangements for the sale of goods entered into by  BorrowerParent or any of its Restricted Subsidiaries in the ordinary course of business to the extent such Liens do not attach to any assets other than the goods subject to such arrangements.

“Permitted Preferred Stock” means and refers to any Preferred Stock issued by Holdings (and not by one or more of its Subsidiaries) that is not Prohibited Preferred Stock.

“Permitted Protest” means the right of BorrowerParent or any of its Restricted Subsidiaries to protest any Lien (other than any Lien that secures the Obligations), taxes (other than payroll taxes or taxes that are the subject of a United States federal tax lien), or rental or other payment,; provided that (a) a reserve with respect to such obligation is established on Borrower’sParent’s or its Restricted Subsidiaries’ books and records in such amount as is required under GAAP, (b) any such protest is instituted promptly and prosecuted diligently by BorrowerParent or its Restricted Subsidiary, as applicable, in good faith, and (c) Agent is satisfied in its Permitted Discretion that, while any such protest is pending, there will be no impairment of the enforceability, validity, or priority of any of the Agent’s Liens.

“Permitted Purchase Money Indebtedness” means, as of any date of determination, Purchase Money Indebtedness incurred after the Original Closing Date in an aggregate principal amount outstanding at any one time not in excess of the greater of (a) $30,000,000 and (b) 2.510.0% of Consolidated Total Assets as ofEBITDA for the most recently ended Calculation Period.

“Permitted Ratio Debt” means “Permitted Ratio Debt” as such term is defined in the First Lien Term Loan Credit Agreement (as in effect on the ClosingAmendment Effective Date).

“Person” means natural persons, corporations, limited liability companies, limited partnerships, general partnerships, limited liability partnerships, joint ventures, trusts, land trusts, business trusts, or other organizations, irrespective of whether they are legal entities, and governments and agencies and political subdivisions thereof.

“Plan” means any pension plan as defined in Section 3(2) of ERISA which is maintained or contributed to by (or to which there is an obligation to contribute of) Parent or a Subsidiary of Parent or an ERISA Affiliate and is subject to Section 302 or Title IV of ERISA or Section 412 of the IRC, other than a Multiemployer Plan.

“Post-Increase Revolver Lenders” has the meaning specified therefor in Section 2.14(e) of the Agreement.

“Pre-Increase Revolver Lenders” has the meaning specified therefor in Section 2.14(e) of the Agreement.

“Preferred Stock” means, as applied to the Stock of any Person, the Stock of any class or classes (however designated) that is preferred with respect to the payment of dividends, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such Person, over shares of Stock of any other class of such Person.

“Pro Forma Basis” shall meanmeans, in connection with any calculation of compliance with any financial covenant or financial term or financial ratio (such as Total Net Leverage Ratio or First Lien Net Leverage Ratio or Fixed Charge Coverage Ratio), the calculation thereof after giving effect on a pro forma basis to (a) the incurrence of any Indebtedness (other than in the case of the Fixed Charge Coverage Ratio, revolving Indebtedness, including Indebtedness under the Agreement, except to the extent the same is incurred to refinance other outstanding Indebtedness or to finance a Permitted Acquisition)

after the first day of the relevant Calculation Period or Test Period, as the case may be, as if such Indebtedness had been incurred (and the proceeds thereof applied) on the first day of such Test Period or Calculation Period, as the case may be (provided that with respect to calculations of the Fixed Charge Coverage Ratio pursuant to Section 7 of the Agreement (to the extent then applicable), such pro forma effect shall be given only to Indebtedness incurred to refinance other outstanding Indebtedness or to finance Permitted Acquisitions during the applicable TestCalculation Period), (b) the repayment of any Indebtedness (other than in the case of the Fixed Charge Coverage Ratio, revolving Indebtedness, including Indebtedness under the Agreement, except to the extent accompanied by a commitment reduction) on or after the first day of the relevant Test Period or Calculation Period, as the case may be, as if such Indebtedness had been retired or repaid on the first day of such Test Period or Calculation Period, as the case may be (provided that with respect to calculations of the Fixed Charge Coverage Ratio pursuant to Section 7 of the Agreement (to the extent then applicable), such pro forma effect shall be given only to such Indebtedness repaid to the extent accompanied by a commitment reduction during the applicable TestCalculation Period), (c) any Permitted Acquisition or any Material Asset SaleSpecified Transaction then being consummated as well as any other Permitted Acquisition or any other Material Asset SaleSpecified Transaction if consummated after the first day of the relevant Test Period or Calculation Period, as the case may be, and on or prior to the date of the respective Permitted Acquisition or Material Asset Sale, as the case may be,Specified Transaction then being effected or being effected on or prior to the applicable date of determination, as if such Permitted Acquisition or Material Asset SaleSpecified Transaction had been consummated on the first day of such Test Period or Calculation Period, as the case may be, and (d) the re-designation of any Unrestricted Subsidiary as a Restricted Subsidiary in accordance with the definition of “Unrestricted Subsidiary”, as well as any other such re-designation if consummated after the first day of the relevant Test Period or Calculation Period, as the case may be, and on or prior to the date of the respective designation, as the case may be, then being effected or being effected on or prior to the applicable date of determination, as if such designation had occurred on the first day of such Test Period or Calculation Period, as the case may be, with the following rules to apply in connection therewith:

(i)all Indebtedness (A) (other than in the case of the Fixed Charge Coverage Ratio, revolving Indebtedness, including Indebtedness under the Agreement, except to the extent the same is incurred to refinance other outstanding Indebtedness or to finance a Permitted Acquisition) incurred or issued on or after the first day of the relevant Test Period or Calculation Period (whether incurred to finance a Permitted Acquisition, to refinance Indebtedness or otherwise) shall be deemed to have been incurred or issued (and the proceeds thereof applied) on the first day of such Test Period or Calculation Period, as the case may be, and remain outstanding through the date of determination (unless otherwise repaid on or prior to the applicable date of determination) (provided that with respect to calculations of the Fixed Charge Coverage Ratio pursuant to Section 7 of the Agreement (to the extent then applicable), such pro forma effect shall be given only to Indebtedness incurred or issued during the applicable TestCalculation Period) and (B) (other than in the case of the Fixed Charge Coverage Ratio, revolving Indebtedness, including Indebtedness under the Agreement, except to the extent accompanied by a commitment reduction) retired, repaid or redeemed on or after the last day of the relevant Test Period or Calculation Period, as the case may be, shall be deemed to have been retired, repaid or redeemed on the first day of such Test Period or Calculation Period, as the case may be, and remain retired through the date of determination (provided that with respect to calculations of the Fixed Charge Coverage Ratio pursuant to Section 7 of the Agreement (to the extent then applicable), such pro form effect shall be given only to Indebtedness repaid during the applicable TestCalculation Period); and

(ii)in making any determination of EBITDA on a Pro Forma Basis (including with respect to any ratio determined on a Pro Forma Basis for which EBITDA is a component (provided that with respect to calculations of the Fixed Charge Coverage Ratio pursuant to Section 7 of the Agreement (to the extent then applicable), such pro forma effect shall be given only to such Permitted Acquisitions, Material Asset SalesSpecified Transactions and redesignations during the applicable TestCalculation Period), pro forma effect shall be given to any Permitted Acquisition, any Material Asset SaleSpecified

Transaction or any re designation of an Unrestricted Subsidiary as a Restricted Subsidiary if effected on or prior to the applicable date of determination as if same had occurred on the first day of the respective Calculation Period or Test Period, as the case may be, and taking into account, in the case of any Permitted Acquisition or Permitted Investment, adjustments that are (x) factually supportable and identifiable cost and expense savings or (y) Permitted Acquisition Additional Cost-Savings, and, in the case of any Material Asset Sale, adjustments that are (x) factually supportable and identifiable cost and expense savings or (y) Permitted Disposition Additional Cost-Savings, in each case as if such cost or expense savings were realized on the first day of the respective period.  For the avoidance of doubt, the applicable date of determination shall be the date on which the applicable calculation is made in connection with the incurrence of Indebtedness, Permitted Acquisitions, Restricted Payments or other action or event being tested or subject to satisfaction or compliance with a particular ratio and not the last day of the most recent Test Period or Calculation Period.

“Prohibited Preferred Stock” means any Preferred Stock that by its terms is mandatorily redeemable or subject to any other scheduled payment obligation (including any obligation to pay dividends), other than dividends of or payments in shares of Preferred Stock of the same class and series payable in kind or dividends of or payments in shares of common stock) on or before a date that is less than 1 year after the Maturity Date, or, on or before the date that is less than 1 year after the Maturity Date, is redeemable at the option of the holder thereof for cash or assets or securities (other than distributions or payments in kind of shares of Preferred Stock of the same class and series or of shares of common stock).

“Projections” means Parent’s or Borrower’s forecasted (a) balance sheets, (b) profit and loss statements, and (c) cash flow statements, all prepared on a basis consistent with Parent’s or Borrower’s historical financial statements, together with appropriate supporting details and a statement of underlying assumptions.

“Pro Rata Share” means, as of any date of determination:

(a)with respect to a Lender’s obligation to make all or a portion of the Advances, with respect to such Lender’s right to receive payments of interest, fees, and principal with respect to the Advances, and with respect to all other computations and other matters related to the Revolver Commitments or the Advances, the percentage obtained by dividing (i) the Revolving Loan Exposure of such Lender by (ii) the aggregate Revolving Loan Exposure of all Lenders,

(b)with respect to a Lender’s obligation to participate in the Letters of Credit, with respect to such Lender’s obligation to reimburse Issuing Lender, and with respect to such Lender’s right to receive payments of Letter of Credit Fees, and with respect to all other computations and other matters related to the Letters of Credit, the percentage obtained by dividing (i) the Revolving Loan Exposure of such Lender by (ii) the aggregate Revolving Loan Exposure of all Lenders; provided, that if all of the Advances have been repaid in full and all Revolver Commitments have been terminated, but Letters of Credit remain outstanding, Pro Rata Share under this clause shall be determined as if the Revolver Commitments had not been terminated and based upon the Revolver Commitments as they existed immediately prior to their termination, andthe percentage obtained by dividing the (A) the Letter of Credit Exposure of such Lender, by (B) the Letter of Credit Exposure of all Lenders, and

(c)with respect to all other matters and for all other matters as to a particular Lender (including the indemnification obligations arising under Section 15.7 of the Agreement), the percentage obtained by dividing (i) the Revolving Loan Exposure of such Lender by (ii) the aggregate Revolving Loan Exposure of all Lenders, in any such case as the applicable percentage may be adjusted by assignments permitted pursuant to Section 13.1; provided, that if all of the Advances have been repaid in full, all Letters of Credit have been made the subject of Letter of Credit Collateralization, and all Commitments have been terminated, Pro Rata Share under this clause shall

be determined as if the Revolving Loan Exposures had not been repaid, collateralized, or terminated and shall be based upon the Revolving Loan Exposures as they existed immediately prior to their repayment, collateralization, or termination.the percentage obtained by dividing the (A) the Letter of Credit Exposure of such Lender, by (B) the Letter of Credit Exposure of all Lenders.

“Protective Advances” has the meaning specified therefor in Section 2.3(d)(i) of the Agreement.

“Purchase Money Indebtedness” means Indebtedness (other than the Obligations, but including Capitalized Lease Obligations), incurred at the time of, or within 90180 days after, the acquisition of any fixed assets for the purpose of financing all or any part of the acquisition cost thereof.

“Qualified Cash” means, as of any date of determination, the amount of unrestricted cash and Cash Equivalents of Borrower and its Restricted Subsidiariesthe Loan Parties that is in Deposit Accounts or in Securities Accounts, or any combination thereof, and which such Deposit Account or Securities Account is the subject of a Control Agreement and is maintained by a branch office of the bank or securities intermediary located within the United States.

“Qualified Loan Party” shall mean Borrower and each Guarantor that is a Wholly-Owned Subsidiary of BorrowerEquity Interests” means any Stock that does not constitute Disqualified Equity Interests.

“Qualified Preferred Stock” means “Qualified Preferred Stock” as such term is defined in the First Lien Term Loan Credit Agreement (as in effect on the Closing Date).

“Ratification Agreement” means a Ratification Agreement, dated as of the Closing Date, in form and substance reasonably satisfactory to Agent, executed and delivered by Borrower and each Guarantor to Agent.

“Real Property” means any estates or interests in real property now owned or hereafter acquired by Holdingsany Loan Party or its Restricted Subsidiaries and the improvements thereto.

“Real Property Collateral” means the fee-owned Real Property identified on Schedule R-1 and any Real Property hereafter acquired by Borrowerany Loan Party or its Restricted Subsidiaries having a fair market value in excess of $5,000,000; provided that, notwithstanding anything to the contrary contained in the Agreement or the other Loan Documents, Real Property Collateral shall not include the Enid Real Property.

“Receivables Reserves” means, as of any date of determination, those reserves that Agent deems necessary or appropriate, in its Permitted Discretion and subject to Section 2.1(c), to establish and maintain (including Landlord Reserves for books and records locations and reserves for rebates, discounts, warranty claims, and returns) with respect to the Eligible Accounts or the Maximum Revolver Amount.

“Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

“Reference Date” shall have the meaning provided in the definition of “Available Amount”.

“Refinancing Indebtedness” means refinancings, renewals, or extensions of Indebtedness so long as:

(a)           such refinancings, renewals, or extensions do not, result in an increase in the principal amount of the Indebtedness so refinanced, renewed, or extended, other than by the amount of premiums paid thereon and the fees and expenses incurred in connection therewith, in each case to the extent utilized to pay such amounts and by the amount of unfunded commitments with respect thereto,

(b)           such refinancings, renewals, or extensions do not result in a shortening of the final stated maturity or the average weighted maturity (measured as of the refinancing, renewal or extension) of the Indebtedness so refinanced, renewed, or extended,

(c)           if the Indebtedness that is refinanced, renewed, or extended was subordinated in right of payment to the Obligations, then the terms and conditions of the refinancing, renewal, or extension must include subordination terms and conditions that are at least as favorable to the Lender Group as those that were applicable to the refinanced, renewed, or extended Indebtedness,

(d)           if the Indebtedness that is refinanced, renewed, or extended was secured by Liens that are subordinated to the Agent’s Liens, then such the Indebtedness in respect of such refinancing, renewal or extension shall be unsecured or secured by Liens that are subordinated to the Agent’s Liens on terms and conditions that are at least as favorable to the Lender Group as those that were applicable to the refinanced, renewed, or extended Indebtedness (including any intercreditor or similar agreements), provided that a certificate of an Authorized Person delivered to Agent at least 5 Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that Borrower has determined in good faith that such terms and conditions satisfy the requirements of this clause (d) shall be conclusive evidence that such terms and conditions satisfy such requirement unless Agent notifies Borrower within 5 Business DayDays of such certificate that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees),

(e)           at the time of such refinancing, renewal or extension, no Default or Event of Default shall have occurred and be continuing,

(f)            such refinancing, renewal or extension does not add guarantors, obligors or security from that which applied to such Indebtedness being refinanced, renewed or extended, (in each case, other than any additional guarantor or obligor that is also a Loan Party or any security that also constitutes Collateral),

(g)           such Indebtedness incurred pursuant to such refinancing, renewal, or extension is incurred by the Person or Persons who are the obligors of the Indebtedness being refinanced, renewed, or extended, together with any other obligor that is also a Loan Party, and

(h)           in the case of any Refinancing Indebtedness in respect of (x) the First Lien Term Loan Facility or (y) the Second Lien Term Loan Facility, in each case, such Refinancing Indebtedness is secured only by assets pursuant to one or more security agreements or mortgages permitted by and subject to the Intercreditor Agreement.

“Register” has the meaning set forth in Section 13.1(h) of the Agreement.

“Registered Commitment” has the meaning set forth in Section 13.1(h) of the Agreement.

“Reimbursement Undertaking” has the meaning specified therefor in Section 2.11(a) of the Agreement.

“Related Fund” means any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course and that is administered, advised or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers, advises or manages a Lender.

“Release” means actively or passively disposing, discharging, injecting, spilling, pumping, leaking, leaching, dumping, emitting, escaping, emptying, pouring, seeping, migrating or the like, into or upon any land or water or air, or otherwise entering into the environment.

“Remedial Action” means all actions taken to (a) clean up, remove, remediate, contain, treat, monitor, assess, evaluate, or in any way address Hazardous Materials in the indoor or outdoor environment, (b) prevent or minimize a release or threatened release of Hazardous Materials so they do not migrate or endanger or threaten to endanger public health or welfare or the indoor or outdoor environment, (c) restore or reclaim natural resources or the environment, (d) perform any pre-remedial studies, investigations, or post-remedial operation and maintenance activities, or (e) conduct any other actions with respect to Hazardous Materials authorized by Environmental Laws.

“Rent Reserve” means a reserve in an amount equal to 3 months rent or storage charges under each lease or storage agreement, for each leased location or storage location at which one or more of the Loan Parties stores Inventory and as to which a Collateral Access Agreement (which waives or subordinates the Lien of such lessor or bailee) has not been received by Agent.

“Replacement Lender” has the meaning specified therefor in Section 2.13(b) of the Agreement.

“Report” has the meaning specified therefor in Section 15.16 of the Agreement.

“Reportable Event” means an event described in Section 4043(c) of ERISA with respect to a Plan that is subject to Title IV of ERISA other than those events as to which the 30-day notice period under Section 4043 of ERISA or the PBGC Regulations thereunder is waived.

“Required Lenders” means, at any time, Lenders having or holding more than 50% of the aggregate Revolving Loan Exposure of all Lenders; provided, that (i) the Revolving Loan Exposure of any Defaulting Lender shall be disregarded in the determination of the Required Lenders, and (ii) at any time there are 2 or more Lenders (who are not Affiliates of one another or Defaulting Lenders), “Required Lenders” must include at least 2 Lenders (who are not Affiliates of one another), unless there are only 2 Lenders and one of such Lenders is a Defaulting Lender.

“Restricted Payment” means to (a) declare or pay any dividend or make any other payment or distribution (in cash or other property) on account of Stock issued by Borrower or any of its Restricted Subsidiaries or to the direct or indirect holders of Stock issued by Borrower or any of its Restricted Subsidiaries in their capacity as such (other than dividends or distributions payable in common Stock), or (b) purchase, redeem, or otherwise acquire or retire for value any Stock issued by Borrower or any of its Restricted Subsidiaries (other than for consideration consisting of common Stock) and excluding any such payment, distribution, purchase, redemption, acquisition or retirement which increases the ownership percentage of any Qualified Loan Party in any Non-Wholly Owned Subsidiary; provided, that to the extent any such payment, distribution, purchase, redemption, acquisition or retirement constitutes an Investment, such payment, distribution, purchase, redemption, acquisition or retirement is a Permitted Investement.

“Reserves” means, as of any date of determination, Inventory Reserves, Receivables Reserves, and those other reserves (other than Bank Product Reserves) that Agent deems necessary or appropriate, in its Permitted Discretion and subject to Section 2.1(c), to establish and maintain (including

reserves with respect to (a) sums that any Loan Party or its Subsidiaries are required to pay under any Section of this Agreement or any other Loan Document (such as taxes, assessments, insurance premiums, or, in the case of leased assets, rents or other amounts payable under such leases) and has failed to pay, (b) liens or trusts arising under the Perishable Agricultural Commodities Act, the Packers and Stockyard Act, or any other similar federal, state or local statutes or ordinances, and (c) other amounts owing by any Loan Party or its Subsidiaries to any Person to the extent secured by a Lien on, or trust over, any of the Collateral (other than a Permitted Lien), which Lien or trust, in the Permitted Discretion of Agent likely would have a priority superior to the Agent’s Liens (such as Liens or trusts in favor of landlords, warehousemen, carriers, mechanics, materialmen, laborers, or suppliers, or Liens or trusts for ad valorem, excise, sales, or other taxes where given priority under applicable law) in and to such item of the Collateral) with respect to the Borrowing Base or the Maximum Revolver Amount.

“Restricted Payment” means, with respect to any Person, any declaration or payment of any dividend or other distribution of assets, properties, cash, rights, obligations or securities on account of any shares of any class of such Person’s capital Stock or other equity interests (other than dividends or other distributions by a Subsidiary to Parent or to another Subsidiary that is a Loan Party), or any purchase, redemption or other acquisition for value any shares of such Person’s capital Stock or other equity interests or any warrants, rights or options to acquire such shares or other equity interests, now or hereafter outstanding.

“Restricted Subsidiary” means each Subsidiary of BorrowerParent that is not an Unrestricted Subsidiary.  Unless otherwise specified, as used in the Loan Documents, the term “Restricted Subsidiary” refers to a Restricted Subsidiary of Parent.

“Revolver Commitment” means, with respect to each Revolving Lender, its Revolver Commitment, and, with respect to all Revolving Lenders, their Revolver Commitments, in each case as such Dollar amounts are set forth beside such Revolving Lender’s name under the applicable heading on Schedule C-1 to the Agreement or in the Assignment and Acceptance or Increase Joinder pursuant to which such Revolving Lender became a Revolving Lender under the Agreement, as such amounts may be reduced or increased from time to time pursuant to assignments made in accordance with the provisions of Section 13.1 of the Agreement, and as such amounts may be decreased by the amount of reductions in the Revolver Commitments made in accordance with Section 2.4(c) of the Agreement.

“Revolver Usage” means, as of any date of determination, the sum of (a) the principal amount of outstanding Advances (inclusive of Swing Loans and Protective Advances), plus (b) the amount of the Letter of Credit Usage.

“Revolving Lender” means a Lender that has a Revolver Commitment or that has an outstanding AdvanceRevolving Loan Exposure or Letter of Credit Exposure.

“Revolving Loan Exposure” means, with respect to any Revolving Lender, as of any date of determination (a) prior to the termination of the Revolver Commitments, the amount of such Lender’s Revolver Commitment, and (b) after the termination of the Revolver Commitments, the aggregate outstanding principal amount of the Advances of such Lender.

“Sale/Leaseback Transaction” shall meanmeans an arrangement relating to property (other than any Borrowing Base Collateral) now owned or hereafter acquired by BorrowerParent or a Restricted Subsidiary thereof whereby BorrowerParent or such Restricted Subsidiary transfers such property to a Person and BorrowerParent or such Restricted Subsidiary leases it from such Person, other than leases between BorrowerParent and a Restricted Subsidiary or between Restricted Subsidiaries.

“Sanctioned Entity” means (a) a country or a government of a country, (b) an agency of the government of a country, (c) an organization directly or indirectly controlled by a country or its

government, or (d) a Person resident in or determined to be resident in a country, in each case, that is subject to a of clauses (a) through (d) that is a target of Sanctions, including a target of any country sanctions program administered and enforced by OFAC.

“Sanctioned Person” means a person named on the list of Specially Designated Nationals maintained by OFAC.

“Sanctioned Person” means, at any time, (a) any a Person named on the list of Specially Designated Nationals and Blocked Persons maintained by OFAC, or any other Sanctions-related list maintained by any relevant Sanctions authority, (b) a Person or legal entity that is a target of Sanctions, (c) any Person operating, organized or resident in a Sanctioned Country, or (d) any Person directly or indirectly owned or controlled (individually or in the aggregate) by or acting on behalf of any such Person or Persons described in clauses (a) through (c) above.

“Sanctions” means individually and collectively, respectively, any and all economic, trade, financial or other sanctions laws, regulations or embargoes imposed, administered or enforced from time to time by:  (a) the United States of America, including, without limitation, those administered by the Office of Foreign Assets Control (OFAC) of the U.S. Department of Treasury, the U.S. Department of State, (b) the United Nations Security Council, (c) the European Union or any European Union member state, (d) Her Majesty’s Treasury of the United Kingdom, or (d) any other governmental authority in any jurisdiction in which any Loan Party or any of its Subsidiaries is located or doing business.

“S&P” has the meaning specified therefor in the definition of Cash Equivalents.

“SEC” means the United States Securities and Exchange Commission and any successor thereto.

“Second Lien Debt Cap” means “Second-Lien Debt Cap” as such term is defined in the Intercreditor Agreement (as in effect on the Closing Date).

“Second Lien Term Loan Agent” means Deutsche Bank Trust Company Americas, in its capacity as administrative and security agent under the Second Lien Term Loan Facility and any successor agent under the Second Lien Term Loan Credit Agreement or any other Second Lien Term Loan Document.

“Second Lien Term Loan Credit Agreement” means that certain Second-Lien Term Loan Credit Agreement, dated as of the Closing Date, by and among Holdings, Borrower, Second Lien Term Loan Lenders, and Second Lien Term Loan Agent, as amended, amended and restated, modified, supplemented, amended and extended, restructured, replaced, refinanced or restated from time to time, in each such case, in accordance with the terms thereof and the Intercreditor Agreement.

“Second Lien Term Loan Documents” means the Second Lien Term Loan Credit Agreement and the other “Credit Documents” as such term is defined in the Second Lien Term Loan Credit Agreement and any documents, instruments and agreements entered into in connection with any amendment, supplement, restatement, replacement or refinancing thereof, as amended, modified, supplemented or restated from time to time in accordance with the terms of the Second Lien Term Loan Credit Agreement and the Intercreditor Agreement.

“Second Lien Term Loan Facility” means the Indebtedness incurred by Borrower under the Second Lien Term Loan Documents.

“Second Lien Term Loan Lenders” means the “Lenders” as such term is defined in the Second Lien Term Loan Credit Agreement.

“Securities Account” means a securities account (as that term is defined in the Code).

“Securities Act” means the Securities Act of 1933, as amended from time to time, and any successor statute.

“Security Agreement” means that certain SecondThird Amended and Restated Security Agreement, dated as of the ClosingAmendment Effective Date, executed and delivered by Borrower and Guarantors to Agent, in form and substance reasonably satisfactory to Agent.

“Settlement” has the meaning specified therefor in Section 2.3(e)(i) of the Agreement.

“Settlement Date” has the meaning specified therefor in Section 2.3(e)(i) of the Agreement.

“Solvent” means, with respect to any Person as of any date of determination, that (a) at fair valuations, the sum of such Person’s debts (including contingent liabilities) is less than all of such Person’s assets, (b) such Person is not engaged or about to engage in a business or transaction for which the remaining assets of such Person are unreasonably small in relation to the business or transaction or for which the property remaining with such Person is an unreasonably small capital, (c) such Person has not incurred and does not intend to incur, or reasonably believe that it will incur, debts beyond its ability to pay such debts as they become due (whether at maturity or otherwise), and (d) such Person is “solvent” or not “insolvent”, as applicable within the meaning given those terms and similar terms under applicable laws relating to fraudulent transfers and conveyances.  For purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liabilities meet the criteria for accrual under Statement of Financial Accounting Standard No. 5).

“Specified Transaction” means, any Investment, Material Asset Sale, incurrence or prepayment of Indebtedness or Restricted Payment (or declaration of any prepayment or Restricted Payment).

“Solvent” means, with respect to any Person on a particular date, that, at fair valuations, the sum of such Person’s assets is greater than all of such Person’s debts.

“Specified Equity Contribution” has the meaning specified therefor in Section 9.3 of the Agreement.

“Sponsor” means Oaktree Capital Management L.P., together with investment entities controlled by or under common control with such entity and Affiliates thereof.

“Sponsor Guaranteed Bond” has the meaning provided therefor in clause (f) of the definition of Permitted Indebtedness.

“Sponsor Model” means the model prepared by Sponsor and delivered to Agent on or prior to August 13, 2012.

“S&P” has the meaning specified therefor in the definition of Cash Equivalents.

“Standard Letter of Credit Practice” means, for Issuing Lender, any domestic or foreign law or letter of credit practices applicable in the city in which Issuing Lender issued the applicable Letter of Credit or, for its branch or correspondent, such laws and practices applicable in the city in which it has advised, confirmed or negotiated such Letter of Credit, as the case may be, in each case, (a) which letter of

credit practices are of banks that regularly issue letters of credit in the particular city, and (b) which laws or letter of credit practices are required or permitted under ISP or UCP, as chosen in the applicable Letter of Credit.

“Stock” means, with respect to a Person, all of the shares, options, warrants, interests, participations, or other equivalents (regardless of how designated) of or in asuch Person, whether voting or nonvoting, including commoncapital stock (or other ownership or profit interests or units), preferred stock, or any other “equity security” (as such term is defined in Rule 3a11-1 of the General Rules and Regulations promulgated by the SEC under the Exchange Act).

“Subsidiary” of a Person means a corporation, partnership, limited liability company, or other entity in which that Person directly or indirectly owns or controls the shares of Stock having ordinary voting power to elect a majority of the Board of Directors of such corporation, partnership, limited liability company, or other entity.

“Supermajority Lenders” means, at any time, Lenders having or holding more than 66 2/3% of the aggregate Revolving Loan Exposure of all Lenders; provided, that (i) the Revolving Loan Exposure of any Defaulting Lender shall be disregarded in the determination of the Supermajority Lenders, and (ii) at any time there are 2 or more Lenders (who are not Affiliates of one another or Defaulting Lenders), “Supermajority Lenders” must include at least 2 Lenders (who are not Affiliates of one another), unless there are only 2 Lenders and one of such Lenders is a Defaulting Lender.

“Swing Lender” means WFCF or any other Lender that, at the request of Borrower and with the consent of Agent agrees, in such Lender’s sole discretion, to become the Swing Lender under Section 2.3(b) of the Agreement.

“Swing Loan” has the meaning specified therefor in Section 2.3(b) of the Agreement.

“Swing Loan Exposure” means, as of any date of determination with respect to any Lender, such Lender’s Pro Rata Share of the Swing Loans on such date.

“Tax Lender” has the meaning specified therefor in Section 14.2(a) of the Agreement.

“Tax Receivable Agreement” means an agreement to be dated on or about the date of an IPO between Parent (or its direct or indirect parent) and a representative of pre-initial public offering holders of Stock of Parent (or its direct or indirect parent), relating to payment by Parent to such holders of Stock of tax benefits relating to net operating losses, tax basis and other tax attributes attributable to periods prior to the IPO, and having terms and conditions that are either (i) not materially less favorable to the Loan Parties than those set forth in the draft tax receivable agreement disclosed to Agent prior to the Amendment Effective Date or (ii) not materially less favorable to the Loan Parties than those commonly found in tax receivable agreements for similarly-situated taxpayers that have been publicly filed with the SEC.

“Taxes” means any taxes, levies, imposts, duties, fees, assessments or other similar charges now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein and all interest, penalties or similar liabilities with respect thereto.

“Term Loan Agents” means, collectively, the First Lien Term Loan Agent and the Second Lien Term Loan Agent, as applicable.Agent” means Morgan Stanley Senior Funding, Inc., in its capacity as administrative and security agent under the Term Loan Facility, and any successor agent under the Term Loan Credit Agreement or any other Term Loan Document.

“Term Loan Credit Agreement” means that certain Term Loan Credit Agreement, dated as of the Amendment Effective Date, by and among Parent, Holdings, Borrower, Term Loan Lenders, and Term Loan Agent, as amended, amended and restated, modified, supplemented, amended and extended, restructured, replaced, refinanced or restated from time to time, in each such case, in a manner not prohibited by the terms of the Intercreditor Agreement.

“Term Loan Credit AgreementsDebt Cap” means, collectively, the First Lien “Term Loan CreditDebt Cap” as such term is defined in the Intercreditor Agreement and the Second Lien Term Loan Credit Agreement, as applicable(as in effect on the Amendment Effective Date).

“Term Loan Documents” means the Term Loan Credit Agreement and the other “Credit Documents” as such term is defined in the Term Loan Credit Agreement and any documents, instruments and agreements entered into in connection with any amendment, supplement, restatement, replacement or refinancing thereof, as amended, modified, supplemented or restated from time to time in accordance with the terms of the Term Loan Credit Agreement and the Intercreditor Agreement.

“Term Loan Documents” means, collectively, the First Lien Term Loan Documents and the Second LienFacility” means the Indebtedness incurred by Borrower under the Term Loan Documents.

“Term Loan Facilities” means, collectively, the First Lien Term Loan Facility and the Second Lien Term Loan FacilityLenders” means the “Term Lenders” as such term is defined in the Term Loan Credit Agreement.

“Term Loan Permitted Indebtedness” means any Indebtedness permitted under Sections 9.04(j), 9.04(l), 9.04(p) or 9.04(t) of the First Lien Term Loan Credit Agreement (as in effect on the ClosingAmendment Effective Date), provided that (a) no Default or Event of Default would result from the incurrence of any such Indebtedness both before and after giving effect thereto, (b) the Excess Availability Thresholdthe Payment Conditions shall be satisfied immediately before and after giving effect to any such Indebtedness, and (cb) such Indebtedness shall be subject to the Intercreditor Agreement (if applicable).

“Term Loan Priority Collateral” has the meaning specified therefor in the Intercreditor Agreement (as in effect on the Closing Date).

“Term Loan Refinancing” means each of (a) the consummation of the refinancing of the Indebtedness outstanding under the Existing First Lien Term Loan Facility, and (b) the consummation of the refinancing of the Indebtedness outstanding under the Existing Second Lien Term Loan Facility, in each case, by the incurrence of the loans under the Term Loan Facility on the Amendment Effective Date.

“Termination Event” means (a) a “Reportable Event” described in Section 4043 of ERISA for which the notice requirement has not been waived by the PBGC, (b) the withdrawal of any Loan Party or any ERISA Affiliate from a Pension Plan during a plan year in which it was a “substantial employer” as defined in Section 4001(a)(2) of ERISA, (c) the termination of a Pension Plan, the filing of a notice of intent to terminate a Pension Plan or the treatment of a Pension Plan amendment as a termination, under Section 4041 of ERISA, if the plan assets are not sufficient to pay all plan liabilities, (d) the institution of proceedings to terminate, or the appointment of a trustee with respect to, any Pension Plan by the PBGC, (e) any other event or condition which would constitute grounds under Section 4042(a) of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan, (f) the imposition of a Lien pursuant to Section 412 or 430 of the IRC or Section 302 or 4068 of ERISA, (g) the partial or complete withdrawal of any Loan Party or any ERISA Affiliate from a Multiemployer Plan, (h) any event or condition which results in the reorganization or insolvency of a Multiemployer Plan under Sections 4241 or 4245 of ERISA, (i) any event or condition which results in the termination of a Multiemployer Plan under Section 4041A of ERISA or the institution by the PBGC of proceedings to

terminate or to appoint a trustee to administer a Multiemployer Plan under Section 4042 of ERISA, (j) any Pension Plan being in “at risk status” within the meaning of IRC Section 430(i), (k) any Multiemployer Plan being in “endangered status” or “critical status” within the meaning of IRC Section 432(b), (l) with respect to any Pension Plan, any Loan Party or any ERISA Affiliate incurring a substantial cessation of operations within the meaning of ERISA Section 4062(e); or (m) any event that causes any Loan Party or any of their ERISA Affiliates to incur liability under Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section 4971 or 4975 of the IRC.

“Test Period” means each period of 4 consecutive fiscal quarters of Borrower most recently ended, in each case taken as one accounting period.

“Total Net Leverage Ratio” means “Total Net Leverage Ratio” as that term is defined in the First Lien Term Loan Credit Agreement (as in effect on the date hereofAmendment Effective Date).

“Trademark Security Agreement” has the meaning specified therefor in the Security Agreement.

“Transaction” means, collectively, (a) the consummation of the refinancing of the Indebtedness outstanding under the Existing Credit Facilitieseach Term Loan Refinancing, (b) the execution, delivery and performance by each Loan Party of the Loan Documents to which it is a party, the incurrence of loansAdvances (if any) on the ClosingAmendment Effective Date and the use of proceeds thereof, (c) the execution, delivery and performance by each Loan Party of the First Term Loan Credit Agreement and the Second Lien Credit Agreement, the incurrence of the loans under the Term Loan FacilitiesFacility on the ClosingAmendment Effective Date and the use of proceeds thereof, and (d) the making of the Closing Date Dividend Payments, and (e) the payment of all fees and expenses in connection with the foregoing.

“Transaction Documents” means, collectively, (a) the Loan Documents, (b) all pay-off letters, guaranty releases, Lien releases (including UCC termination statements) and other documents and agreements entered into in connection with the refinancing of the Existing Credit Facilities, (c) the First Lien Term Loan Documents, and (d) the Second Lieneach Term Loan Refinancing, and (c) the Term Loan Documents.

“UCP” means, with respect to any Letter of Credit, the Uniform Customs and Practice for Documentary Credits 2007 Revision, International Chamber of Commerce Publication No. 600 and any subsequent revision thereof adopted by the International Chamber of Commerce on the date such Letter of Credit is issued.

“Underlying Issuer” means Wells Fargo or one of its Affiliates.

“Underlying Letter of Credit” means a Letter of Credit that has been issued by an Underlying Issuer.

“Unfunded Current Liability” of any Plan means the amount, if any, by which the value of the accumulated plan benefits under such Plan determined on a plan termination basis in accordance with actuarial assumptions at such time consistent with those prescribed by the PBGC for purposes of Section 4044 of ERISA, exceeds the fair market value of all plan assets allocable to such liabilities under Title IV of ERISA (excluding any accrued but unpaid contributions).

“United States” means the United States of America.

“Unrestricted Subsidiary” shall meanmeans (a) any Subsidiary of Parent (other than Holdings and Borrower) (including any Subsidiary of BorrowerParent that is formed or acquired after the

ClosingAmendment Effective Date), provided that BorrowerParent has designated such Subsidiary an Unrestricted Subsidiary in a written notice to Agent, and provided further that (i) such designation as an Unrestricted Subsidiary shall be deemed to be an Investment (or reduction in an outstanding Investment, in the case of a designation of an Unrestricted Subsidiary as a Restricted Subsidiary), on the date of such designation in an amount equal to the sum of (y) Borrower’sParent’s direct or indirect equity ownership percentage of the net worth of such designated Subsidiary immediately prior to such designation (such net worth to be calculated without regard to any guarantee of Indebtedness of BorrowerParent and its Restricted Subsidiaries provided by such designated Subsidiary) and (z) without duplication, the aggregate principal amount of any Indebtedness owed by such designated Subsidiary to BorrowerParent or any other Restricted Subsidiary immediately after such designation, all calculated, except as set forth in the parenthetical to clause (y), on a consolidated basis in accordance with GAAP, (ii) both immediately before and immediately after giving pro forma effect thereto, no Default or Event of Default is continuing or would result from such designation both before and after giving effect thereto, (iii) no Subsidiary may be designated an Unrestricted Subsidiary to the extent (x) such Subsidiary or any of its Subsidiaries is a restricted subsidiary for purposes of the First Lien Term Loan Credit Agreement or the Second Lien Term Loan Credit Agreement, (y) such Subsidiary or any of its Subsidiaries owns any Stock or Indebtedness of, or owns or holds any Lien on any property of, Borrower or any Restricted Subsidiary of Borrower, or (z) such Subsidiary constitutes a Borrowing Base Party, (iv) Borrower shall be in compliance with the covenant set forth in Section 7 determined on a Pro Forma Basis both before and after giving effect to such designation (whether or not a Covenant Test DatePeriod shall have occurredbe in effect), (v) no Overadvance shall exist immediately after giving effect to such designation, and (vi) either (y) the Total Net Leverage Ratio, calculated as of the date of designation on a Pro Forma Basis after giving effect to such designation is not greater than 5.00:1.00 or (z) the Total Net Leverage Ratio calculated as of the date of designation on a Pro Forma Basis for any such designation is less than or equal to the Total Net Leverage Ratio calculated immediately prior to any such designation, does not exceed 4.70:1.00, and (b) each Subsidiary of an Unrestricted Subsidiary.  BorrowerParent may, by written notice to Agent, re-designate any Unrestricted Subsidiary as a Restricted Subsidiary, and thereafter, such Subsidiary shall no longer constitute an Unrestricted Subsidiary, but only if no Default or Event of Default would result fromat the time of any such re-designation Parent is in compliance with clauses (i) and (ii) of the preceding sentence; provided that any Unrestricted Subsidiary that is designated as a Restricted Subsidiary may not thereafter be re-designated as an Unrestricted Subsidiary.  Notwithstanding anything to the contrary contained in the Agreement, any Unrestricted Subsidiary shall not be subject to any of the covenants, representations and warranties, or Events of Default contained in the Agreement or in any other Loan Document, for so long as such Person is an Unrestricted Subsidiary.

“Unused Line Fee” has the meaning specified therefor in Section 2.10(b) of the Agreement.

“U.S.D.A.” means the United States Department of Agriculture.

“Voidable Transfer” has the meaning specified therefor in Section 17.8 of the Agreement.

“WARN” has the meaning specified therefor in Section 4.11(g) of the Agreement.

“Wells Fargo” means Wells Fargo Bank, National Association, a national banking association.

“WFCF” means Wells Fargo Capital Finance, LLC, a Delaware limited liability company.

“Wholly-Owned Domestic Subsidiary” shall meanmeans,, as to any Person, any Domestic Subsidiary of such Person that is a Wholly-Owned Subsidiary.

“Wholly-Owned Foreign Subsidiary” shall mean, as to any Person, any Foreign Subsidiary of such Person that is a Wholly-Owned Subsidiary.

“Wholly-Owned Subsidiary” shall meanmeans, as to any Person, (a) any corporation 100% of whose Stock is at the time owned by such Person and/or one or more Wholly-Owned Subsidiaries of such Person and (b) any partnership, limited liability company, association, joint venture or other entity in which such Person and/or one or more Wholly-Owned Subsidiaries of such Person has a 100% equity interest at such time (other than, in the case of a Foreign Subsidiary of BorrowerParent with respect to the preceding clauses (a) and (b), directors’ qualifying shares and/or other nominal amounts of shares required to be held by Persons other than BorrowerParent and its Subsidiaries under applicable law).

“Zartic” means Zartic, LLC, an Ohio limited liability company.

“Write-Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.

EXHIBIT B

AMENDED AND RESTATED SCHEDULES TO CREDIT AGREEMENT

[see attached]

Schedule A-1

Agent’s Account

An account at a bank designated by Agent from time to time as the account into which Borrower shall make all payments to Agent for the benefit of the Lender Group and into which the Lender Group shall make all payments to Agent under this Agreement and the other Loan Documents; unless and until Agent notifies Borrower and the Lender Group to the contrary, Agent’s Account shall be that certain deposit account bearing account number 37072820231200859 and maintained by Agent with Wells Fargo Bank, N.A., San Francisco, CA, ABA #121-000-248.

Schedule A-2
Authorized Persons

1.John N. Simons, Jr. - Chief Executive Officer and President

2.Michael B. Sims - Chief Financial Officer, Vice President, Treasurer and Secretary

Schedule C-1

Commitments

Lender	Revolver Commitment		Total Commitment
Wells Fargo Capital Finance, LLC	$	117,000,000	$	117,000,000
Bank of Montreal	$	58,000,000	$	58,000,000
All Lenders	$	175,000,000	$	175,000,000

Schedule C-2

Credit Card Issuers/Processors

None.

Schedule D-1
Designated Account

Name and Address of Bank	Account Number	ABA
Wells Fargo Bank, N.A. 8073 Washington Village Dr., 1st Floor Centerville, Ohio 45458	4121831002	121000248

Schedule E-1
Eligible Inventory Locations

Loan Party	Warehouse Name	Address
AdvancePierre Foods, Inc.	AMERICOLD WICHITA	2707 NORTH MEAD WICHITA, KS 67219
AdvancePierre Foods, Inc.	AMERICOLD - OKC	2524 EXCHANGE AVE OKLAHOMA CITY, OK 73108
AdvancePierre Foods, Inc.	AMERICOLD - AMARILLO	10300 SE 3RD AVE AMARILLO, TX 79111
AdvancePierre Foods, Inc.	QUALITY PROCESSING/REFRIGERATED SERVICES	225 WEST 21ST SPENCER, IA 51301
AdvancePierre Foods, Inc.	FIVE STAR CUSTOM FOODS	3709 E FIRST ST DALLAS, TX 75284
AdvancePierre Foods, Inc.	ROCKMART NORDIC COLD STORAGE	1802 ROME HWY ROCKMART, GA 30153
AdvancePierre Foods, Inc.	ADVANCEPIERRE FOODS WILLOW DIST	5109 E WILLOW RD ENID, OK 73701
AdvancePierre Foods, Inc.	OKLAHOMA REFRIGERATED - OKC	4235 SOUTH EASTERN OKLAHOMA CITY, OK 73143
AdvancePierre Foods, Inc.	AMERICAN COLD-TULSA	420 SOUTH 145TH EAST AVENUE TULSA, OK 74108
AdvancePierre Foods, Inc.	ADVANCEPIERRE FOODS 54TH STREET FINISHED GOODS	201 S RALEIGH ROAD ENID, OK 73701
AdvancePierre Foods, Inc.	ADVANCEPIERRE FOODS ENTERPRISE FINISHED GOODS	5110 ENTERPRISE DRIVE ENID, OK 73701
AdvancePierre Foods, Inc.	NOR-AM COLD STORAGE	1555 NOR-AM DRIVE LE MARS, IA 51031
AdvancePierre Foods, Inc.	ADVANCEPIERRE FOODS PINE FINISHED GOODS	206 E PINE AVE ENID, OK 73701
AdvancePierre Foods, Inc.	ADVANCEPIERRE FOODS ST. JOHN INTERMEDIATE/FG	82 SAINT JOHN STREET PORTLAND, ME 04102
AdvancePierre Foods, Inc.	ADVANCEPIERRE FOODS MILLIKEN FACILITY	56 MILLIKEN STREET PORTLAND, ME 04103
AdvancePierre Foods, Inc.	ADVANCEPIERRE FOODS PHILLY FINISHED GOODS AND WIP	4929 E. WILLOW ENID, OK 73701
AdvancePierre Foods, Inc	OMNI PACKAGING SPECIALIST	11301 PARTNERSHIP DRIVE SUITE B, OKLAHOMA CITY, OK 73131
AdvancePierre Foods, Inc.	ADVANCEPIERRE FOODS AMHERST OH	1833 COOPER FOSTER PARK RD., AMHERST OH 44001
AdvancePierre Foods, Inc.	BURKE CORPORATION	1516 SOUTH D AVE NEVADA, IA 50201
AdvancePierre Foods, Inc.	BURRIS ELKTON MD	451 FLETCHWOOD RD ELKTON, MD 21921
AdvancePierre Foods, Inc.	BURRIS ROCKY HILL	490 BROOK STREET ROCKY HILL, CT 06067
AdvancePierre Foods, Inc.	BURRIS ORLANDO FL	10900 CENTRAL PORT DR ORLANDO, FL 32824
AdvancePierre Foods, Inc.	LEMARS PUBLIC STORAGE	1889 24TH ST LEMARS, IA 51031

AdvancePierre Foods, Inc.	CLOVERLEAF COLD STORAGE	3110 HOMEWARD WAY FAIRFIELD, OH 45014
AdvancePierre Foods, Inc.	CLOVERLEAF COLD STORAGE	1165 INDEPENDENCE DRIVE NAPOLEON, OH
AdvancePierre Foods, Inc.	ADVANCEPIERRE FOODS CLAREMONT NC	3437 E MAIN STREET, CLAREMONT, NC 28610
AdvancePierre Foods, Inc.	CLOVERLEAF SIOUX CITY	2800 CLOVERLEAF COURT SIOUX CITY, IA 51111
AdvancePierre Foods, Inc.	ADVANCEPIERRE FOODS EASLEY SC	133 CLOVERVALE DRIVE, EASLEY SC 29640
AdvancePierre Foods, Inc.	INTERSTATE WAREHOUSE CINCINNATI	110 DISTRIBUTION DRIVE HAMILTON, OH 45014
AdvancePierre Foods, Inc.	ADVANCEPIERRE FOODS CINCINNATI OH	9990 PRINCETON-GLENDALE ROAD, CINCINNATI, OH 45246
AdvancePierre Foods, Inc.	Brendamour Warehousing	11400 Grooms Road Cincinnati, Ohio 45246
AdvancePierre Foods, Inc.	Taylor Warehouse Corp.	2875 Sharon Rd. Cincinnati, Ohio 45241
AdvancePierre Foods, Inc.	Northern Ohio Industrial Park	1400 Lowell St. Elyria, Ohio 44035
AdvancePierre Foods, Inc.	Central Ohio Warehouse Shelby	18 Allison Drive Shelby, Ohio 44875
AdvancePierre Foods, Inc.	Cloverleaf Cold Storage Columbus	2350 New World Drive Columbus, Ohio 43207
AdvancePierre Foods, Inc.	Merchants Distributors LLC	5005 Alex Lee Blvd. Hickory, North Carolina 28601
AdvancePierre Foods, Inc.	Consolidation Services	543 12th Street Drive NW Hickory, North Carolina 28601
AdvancePierre Foods, Inc.	Versacold Samuels Ft. Worth	1313 Samuels Ave. Ft. Worth, TX 76102
AdvancePierre Foods, Inc.	FW Warehousing	4300 Church Road Centreville, Illinois 62207
AdvancePierre Foods, Inc.	FlexXray	3751 New York Ave. #130 Arlington, Texas 76014
AdvancePierre Foods, Inc.	Polarville Cold Storage LLC	30 Exchange Avenue Fairmont City, Illinois 62071
AdvancePierre Foods, Inc.	Suzanna’s Kitchen	4101 Blue Ridge Industrial Pkwy. Norcross, Georgia 30071
AdvancePierre Foods, Inc.	Custom Food Products	59 Custom Foods Drive Owingsville, Kentucky
AdvancePierre Foods, Inc.	Americold Vinita Park	8501 Page Avenue Vinita Park, Missouri 63114
AdvancePierre Foods, Inc.	Americold M-TN	720 Butler Drive Murfreesboro, Tennessee 37127
AdvancePierre Foods, Inc.	Pureland Logistics	504 Sharptown Road Swedesboro, NJ 08085
AdvancePierre Foods, Inc.	Preferred Freezers-Medley	13700 N W 115th Ave Medley, Florida 33178
AdvancePierre Foods, Inc.	Caseyville Intermediate/FG	12 Tucker Drive Caseyville, Illinois 62232

Schedule M-1
Management Agreements

1.Management Services Agreement entered into between AdvancePierre Foods Holdings, Inc. (f/k/a Pierre Foods Holding Corporation) and Oaktree Capital Management, L.P., dated as of December 12, 2008, as amended by the First Amendment to the Management Services Agreement entered into between AdvancePierre Foods Holdings, Inc. (f/k/a Pierre Foods Holding Corporation) and Oaktree Capital Management, L.P., dated as of September 30, 2010.

Schedule P-1

Permitted Investments

1.All Investments in Subsidiaries listed on Schedule 4.1(c).

Schedule P-2
Permitted Liens

1.Liens in connection with those equipment lease agreements set forth on Schedule P-3.

2.Liens in connection with restrictions on the use of property located at 54 St. John Street, Portland, Maine 04102 in connection with an NOV from the Maine Department of Environmental Protect received on August 31, 2012.

3.Liens in connection with the following financing statements:

Filing Office	Debtor	Secured Party	Filing Number	Filing Date	Collateral Description
DE  — Secretary of the State	AdvancePierre Foods, Inc.	Corporation Service Company, as Representative Wells Fargo Bank, N.A.	2014 1190123	03-26-14	Equipment Lease
			2011 2545674	07-01-11	Equipment Lease
			2013 0220484	01-16-13	Equipment Lease
			2013 0220500	01-16-13	Equipment Lease
			2013 1700849	05-03-13	Equipment Lease
			2013 1821546	05-13-13	Equipment Lease
		Crown Credit Company	2011 3110890	08-11-11	Equipment Lease
			2016 0930337	02-16-16	Continuation
			2016 2164240	04-12-16	Amendment
		NHMG Financial Services, Inc.	2015 3279089	07-29-15	Equipment Lease
		Xenith Bank	2016 2273777	04-18-16	Equipment Lease
		U.S. Bank Equipment Finance, A Division of U.S. Bank National Association	2016 1351319	03-07-16	Equipment Lease
		Robert Reiser & Co., Inc.	2013 2589019	07-05-13	Equipment Lease
			2013 4094604	10-18-13	Equipment Lease
			2014 0641696	02-19-14	Equipment Lease
			2015 0195495	01-15-15	Equipment Lease
			2015 1443687	04-06-15	Equipment Lease
			2015 2109196	05-18-15	Equipment Lease
			2016 1299930	03-03-16	Equipment Lease
		Raymond Lease Corporation	2015 2432481	06-08-15	Equipment Lease
		Meridian Leasing Corporation Toyota Motor Credit Corporation	2013 3696268 2013 4335098 2013 0613001 2015 0895168 2015 0895457	09-23-13 11-05-13 02-06-13 02-20-15 02-20-15	Equipment Lease Equipment Lease Equipment Lease Equipment Lease Equipment Lease
			2015 0974971	02-26-15	Equipment Lease
ME — Secretary of State	Barber Foods , LLC	NMHG Financial Services, Inc.	2090001997694-16	11-25-09	Equipment Lease
			20140724103300020-99	7-22-14	Amendment

Filing Office	Debtor	Secured Party	Filing Number	Filing Date	Collateral Description
			20140801103300069-08	7-31-14	Continuation
OK-Oklahoma County Clerk	Advance Food Company, LLC (f/k/a Advance Food Company, Inc.)	Raymond Leasing Corporation	20130506020446830	5-6-13	Equipment Lease
		Robert Reiser & Co., Inc.	20140701020672180	07-01-14	Equipment Lease
		Robert Reiser & Co., Inc.	20141107021144960	11-07-14	Equipment Lease

Schedule P-3

Permitted Indebtedness

1.Indebtedness in connection with the following capital lease agreements:

Description of Agreement	Aggregate Principal Amount
Software Lease agreement dated as of September 30, 2013 between Kronos Incorporated (“Lessor”) and AdvancePierre Foods, Inc. (“Lessee”)	$	22,666
Software Lease agreement dated as of September 25, 2014 between Kronos Incorporated (“Lessor”) and AdvancePierre Foods, Inc. (“Lessee”)	$	35,597
Equipment Lease agreement data as of December 4, 2012 between Raymond Leasing Corporation (“Lessor”) and Advance Food Company, Inc. D/B/A AdvancePierre Foods, Inc. (“Lessee”)	$	59,081
Equipment Lease agreement data as of October 8, 2015 between Robert Reiser & Co., Inc. (“Lessor”) and AdvancePierre Foods, Inc. (“Lessee”)	$	171,470
Equipment Lease agreement data as of May 14, 2014 between Cisco Systems Capital Corporation (“Lessor”) and AdvancePierre Foods, Inc. (“Lessee”)	$	130,807
Equipment Lease agreement data as of September 12, 2014 between Cisco Systems Capital Corporation (“Lessor”) and AdvancePierre Foods, Inc. (“Lessee”)	$	98,458
Equipment Lease agreement data as of November 4, 2014 between Cisco Systems Capital Corporation (“Lessor”) and AdvancePierre Foods, Inc. (“Lessee”)	$	97,237
Total:	$	592,650

2.Earn Out agreement related to that certain Asset Purchase Agreement dated January 16, 2015 by and among Trover Family Business, L.L.C., Landshire, Inc., and AdvancePierre Foods, Inc. (formerly LSI Acquisition, LLC), up to a maximum amount of $20,000,000.

Schedule R-1
Real Property Collateral

Owner	Property Address	County
AdvancePierre Foods, Inc.	3437 East Main Street Claremont, NC 28610	Catawba
AdvancePierre Foods, Inc.	9990 Princeton Glendale Road Cincinnati, OH 45246	Butler
AdvancePierre Foods, Inc.	11, 12 & 15 Tucker Drive and 1625 Pardue Drive Caseyville, IL 62232	St.Clair
Chefs Pantry, LLC	133 Clovervale Drive Route 135 Easley, SC 29640	Pickens
Clovervale Farms, LLC	1833 Cooper Foster Park Road Amherst, OH 44001	Lorain
Advance Food Company, LLC	Knox Building (Units 1, 1B, 1M, 2 and 3) 301 West Broadway Enid, OK 73701	Garfield
Advance Food Company, LLC	Philly Steak Plant 4929 E Willow Road Enid, OK 73701	Garfield
Advance Food Company, LLC	54th Street Plant 201 South Raleigh Road a/k/a 201 54th Street Enid, OK 73701G	Garfield
Advance Food Company, LLC	Enterprise Blvd Plant 5110 Enterprise Blvd Enid, OK 73701	Garfield

Barber Foods, LLC Portland Plant 54 St. John Street, Portland, Maine 04102 Cumberland

Schedule 4.1(b)
Capitalization of Loan Parties

Loan Party	Subsidiary	Number of Shares/Units	Number of Shares of Each Class of Authorized Stock/Equity Interest	Percentage of Class Owned	Certificate Nos.
AdvancePierre Foods Holdings, Inc.	Pierre Holdco, Inc.	10,000	25,000 common shares authorized; 10,000 issued. 100,000 preferred shares authorized; 0 issued	100%	1
Pierre Holdco, Inc.	AdvancePierre Foods, Inc.	10,000	25,000 common shares authorized; 10,000 issued. 100,000 preferred shares authorized; 0 issued	100%	3
Clovervale Farms, LLC	Chefs Pantry, LLC	N/A	Uncertificated equity interest	100%	N/A
AdvancePierre Foods, Inc.	Clovervale Farms, LLC	N/A	Uncertificated equity interest	100%	N/A
AdvancePierre Foods, Inc.	Advance Food Company, LLC	N/A	Uncertificated equity interest	100%	N/A
AdvancePierre Foods, Inc.	Barber Foods, LLC	282,403	Uncertificated equity interest	100%	N/A
Clovervale Farms, LLC	APF Legacy Subs, LLC	N/A	Uncertificated Equity Interest	100%	N/A

Schedule 4.1(c) 
Capitalization of Loan Parties’ Subsidiaries

Loan Party	Subsidiary	Number of Shares/Units	Number of Shares of Each Class of Authorized Stock/Equity Interest	Percentage of Class Owned	Certificate Nos.
AdvancePierre Foods Holdings, Inc.	Pierre Holdco, Inc.	10,000	25,000 common shares authorized; 10,000 issued. 100,000 preferred shares authorized; 0 issued	100%	1
Pierre Holdco, Inc.	AdvancePierre Foods, Inc.	10,000	25,000 common shares authorized; 10,000 issued. 100,000 preferred shares authorized; 0 issued	100%	3
Clovervale Farms, LLC	Chefs Pantry, LLC	N/A	Uncertificated equity interest	100%	N/A
AdvancePierre Foods, Inc.	Clovervale Farms, LLC	N/A	Uncertificated equity interest	100%	N/A
AdvancePierre Foods, Inc.	Advance Food Company, LLC	N/A	Uncertificated equity interest	100%	N/A
AdvancePierre Foods, Inc.	Barber Foods, LLC	282,403	Uncertificated equity interest	100%	N/A
Clovervale Farms, LLC	APF Legacy Subs, LLC	N/A	Uncertificated Equity Interest	100%	N/A

Schedule 4.6(a)
States of Organization

Loan Party	Jurisdiction
AdvancePierre Foods Holdings, Inc.	Delaware
Pierre Holdco, Inc.	Delaware
AdvancePierre Foods, Inc.	Delaware
Chefs Pantry, LLC	Ohio
Clovervale Farms, LLC	Ohio
APF Legacy Subs, LLC	Ohio
Advance Food Company, LLC	Oklahoma
Barber Foods, LLC	Maine

Schedule 4.6(b)
Chief Executive Offices

Loan Party	Address of Chief Executive Office
AdvancePierre Foods Holdings, Inc.	9987 Carver Road, 5th Floor, Suite 500, Blue Ash, OH 45242
Pierre Holdco, Inc.	9987 Carver Road, 5th Floor, Suite 500, Blue Ash, OH 45242
AdvancePierre Foods, Inc.	9987 Carver Road, 5th Floor, Suite 500, Blue Ash, OH 45242
Chefs Pantry, LLC	9987 Carver Road, 5th Floor, Suite 500, Blue Ash, OH 45242
Clovervale Farms, LLC	9987 Carver Road, 5th Floor, Suite 500, Blue Ash, OH 45242
APF Legacy Subs, LLC	9987 Carver Road, 5th Floor, Suite 500, Blue Ash, OH 45242
Advance Food Company, LLC	9987 Carver Road, 5th Floor, Suite 500, Blue Ash, OH 45242
Barber Foods, LLC	9987 Carver Road, 5th Floor, Suite 500, Blue Ash, OH 45242

Schedule 4.6(c)
Organizational Identification Numbers

Loan Party	Organizational Identification Number	Tax Identification Number
AdvancePierre Foods Holdings, Inc.	4621531	26-3712208
Pierre Holdco, Inc.	4621323	26-3712294
AdvancePierre Foods, Inc.	4619532	80-0304279
Chefs Pantry, LLC	467483	34-1185649
Clovervale Farms, LLC	195336	34-0661082
APF Legacy Subs, LLC	853522	34-1749470
Advance Food Company, LLC	3512381161	73-0957451
Barber Foods, LLC	20113280DC	01-0235540

Schedule 4.6(d)

Commercial Tort Claims

None.

Schedule 4.15

Deposit Accounts and Securities Accounts

Loan Party	Name and Address of Bank or Securities Intermediary	Account Numbers of Deposit or Securities Accounts
AdvancePierre Foods, Inc.	Wells Fargo Bank, N.A. 8073 Washington Village Drive 1st Floor Centerville, OH 45458	4121831010
AdvancePierre Foods, Inc.	Wells Fargo Bank, N.A. 8073 Washington Village Drive 1st Floor Centerville, OH 45458	4121831002
AdvancePierre Foods, Inc.	Wells Fargo Bank, N.A. 8073 Washington Village Drive 1st Floor Centerville, OH 45458	4124204363
AdvancePierre Foods, Inc.	Wells Fargo Bank, N.A. 8073 Washington Village Drive 1st Floor Centerville, OH 45458	9600124599
AdvancePierre Foods, Inc.	Wells Fargo Bank, N.A. 8073 Washington Village Drive 1st Floor Centerville, OH 45458	9600124605
AdvancePierre Foods, Inc.	Wells Fargo Bank, N.A. Grand Cayman Branch  P.O. Box 501 Cardinal Avenue Grand Cayman, Cayman Islands	7770010275
AdvancePierre Foods, Inc.	Royal Bank of Canada F.I. Client Service Centre 180 Wellington St. West 6th Floor, Toronto, Ontario M5J 1J1	09591-1035153
AdvancePierre Foods, Inc.	U.S. Bank P.O. Box 1800 Saint Paul, Minnesota 55101-0800	130105784461

Loan Party	Name and Address of Bank or Securities Intermediary	Account Numbers of Deposit or Securities Accounts
Advance Food Company, LLC	Central National Bank of Enid PO Box 3448 Enid OK 73702-3448	1083801
AdvancePierre Foods, Inc.	Wells Fargo Bank, N.A. 8073 Washington Village Drive 1st Floor Centerville, OH 45458	9600142483
AdvancePierre Foods, Inc.	Wells Fargo Bank, N.A. 8073 Washington Village Drive 1st Floor Centerville, OH 45458	4122168370
AdvancePierre Foods, Inc.	Wells Fargo Bank, N.A. 8073 Washington Village Drive 1st Floor Centerville, OH 45458	9600144856

Schedule 4.26

Locations of Inventory and Equipment

Advance Food Company, LLC

Locations of Equipment:

Advance Food Company, LLC

5110 Enterprise Blvd

Enid, OK  73701

Advance Food Company, LLC

201 S. Raleigh Road

Enid, OK  73701

Advance Food Company, LLC

Willow Distribution Center

5109 E Willow Rd

Enid, OK  73701

Clovervale Farms, LLC

Locations of Equipment:

Clovervale Farms, LLC

1833 Cooper Foster Park Road

Amherst, OH 44001

AdvancePierre Foods, Inc.

Locations of Equipment:

AdvancePierre Foods, Inc.

9990 Princeton-Glendale Road

Cincinnati, Ohio 45246

AdvancePierre Foods, Inc.

3437 East Main Street

Claremont, North Carolina 28610

Locations of Inventory:

Interstate Warehouse Cincinnati

110 Distribution Drive

Hamilton, OH 45014

Versacold Great Plains

5600-76th Ave. S.E.

Calgary, Alberta, Canada T2C 4N4

Rockmart Nordic Cold Storage

1802 Rome Hwy

Rockmart, GA  30153

Schedule 5.1

Financial Statements, Reports, Certificates

Deliver to Agent each of the financial statements, reports, or other items set forth below at the following times:

within (x) 30 days (45 days in the case of any month that is the end of a Fiscal Quarter) after the end of each fiscal month at any time that either (i) an Event of Default has occurred and is continuing or (ii) Excess Availability is less than $37,500,000, and otherwise, (y) 45 days after each of the first three Fiscal Quarters during each Fiscal Year	(a)an unaudited consolidated balance sheet, income statement, and statement of cash flow covering Parent’s and its Restricted Subsidiaries’ operations during such period and for the period commencing at the end of the immediately preceding Fiscal Year and ending with the end of such month, and a report comparing the figures in such financial statements with the figures in Borrower’s Projections for the corresponding periods and the figures for the corresponding periods of the immediately preceding Fiscal Year; and (b)a Compliance Certificate (only on a Fiscal Quarter end basis), along with the underlying calculations, including the calculations to arrive at EBITDA and the Fixed Charge Coverage Ratio, without regard to whether a Covenant Testing Period is then in effect.
within 95 days after the end of each Fiscal Year	(c)consolidated financial statements of Parent and its Restricted Subsidiaries for each Fiscal Year, audited and certified by PricewaterhouseCoopers LLP or other independent certified public accountants of recognized national standing, accompanied by an opinion of such accounting firm (which opinion shall be without a “going concern” or like qualification or exception and without any qualification or exception as to scope of audit (other than any exception, explanatory paragraph or qualification that is expressly solely with respect to, or expressly resulting solely from (x) an upcoming maturity date under Indebtedness occurring within one year from the time such opinion is delivered or (y) any potential inability to satisfy a financial covenant on a future date or in a future period) except for qualifications relating to changes in accounting principles or practices reflecting changes in GAAP and required or approved by such independent certified accountants) (such audited financial statements to include a balance sheet, income statement and statement of cash flows), together with management’s discussion and analysis of the financial condition and results of operations with respect to such Fiscal Year, and (d)a Compliance Certificate, along with the underlying calculations, including the calculations to arrive at EBITDA and the Fixed Charge Coverage Ratio, without regard to whether a Covenant Testing Period is then in effect.
within 95 days after the start of each Fiscal Year	(e)copies of Borrower’s Projections for the such Fiscal Year, month by month, which Projections represent Borrower’s good faith estimate of Parent’s and its Restricted Subsidiaries’ future performance for the periods covered thereby based upon assumptions believed by Borrower to be reasonable at the time of the delivery thereof to Agent (it being

	understood that such projections and forecasts are subject to uncertainties and contingencies, many of which are beyond the control of Parent and its Restricted Subsidiaries and no assurances can be given that such projections or forecasts will be realized or any level of performance will be achieved).
if and when filed by Parent or any Loan Party, promptly, but in any event within 5 days after (to the extent not filed electronically),	(f)Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports, and (g)any other filings made by Parent or any Loan Party or any of their Restricted Subsidiaries with the SEC.
within 5 days after a responsible officer of Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default,	(h)notice of such event or condition and a statement of the curative action that Borrower proposes to take with respect thereto.
within 5 days after a responsible officer of Borrower has knowledge of such action, suit, or proceeding,	(i)notice of all actions, suits, or proceedings brought by or against Parent or any of its Restricted Subsidiaries before any Governmental Authority which, either individually or in the aggregate, reasonably could be expected to result in a Material Adverse Change.
to the extent delivered to Term Loan Agent,	(j)with respect to any action under the Agreement or First Lien Term Loan Credit Agreement, for which compliance with (i) the Total Net Leverage Ratio or (ii) the Interest Coverage Ratio is a condition to the allowance of such action under the applicable agreement, reasonably detailed calculations showing compliance with the applicable ratio.
upon the request of Agent,	(k)any other information reasonably requested relating to the financial condition of Parent or its Restricted Subsidiaries.

Notwithstanding anything to the contrary set forth in the Loan Documents, the obligations in clauses (a), (c) and (f) above may be satisfied with respect to financial information of Parent and its Restricted Subsidiaries by furnishing the Form 10-K or 10-Q of Parent (or any direct or indirect parent of Parent) filed with the SEC; provided that, (i) to the extent such information relates to a parent of Parent, such information is accompanied by consolidating information that explains (if applicable) in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to Parent and its Restricted Subsidiaries on a standalone basis, on the other hand and (ii) to the extent such information is in lieu of information required to be provided under clause (c), such materials are accompanied by a report and opinion of PricewaterhouseCoopers LLP or other independent certified public accountants of recognized national standing, accompanied by an opinion of such accounting firm (which opinion shall be without a “going concern” or like qualification or exception and without any qualification or exception as to scope of audit (other than any exception, explanatory paragraph, qualification explanation, supplemental comment or other comment that is expressly solely with respect to, or expressly resulting solely from (x) an upcoming maturity date under Indebtedness occurring within one year from the time such opinion is delivered or (y) any potential

inability to satisfy a financial covenant on a future date or in a future period) except for qualifications relating to changes in accounting principles or practices reflecting changes in GAAP and required or approved by such independent certified accountants).

Documents required to be delivered pursuant to this Schedule 5.1 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which Borrower or Parent (or any other direct or indirect parent of Borrower) posts such documents, or provides a link thereto on its website on the Internet; or (ii) on which such documents are posted on Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and Agent have access (whether a commercial, third-party website or whether sponsored by Agent); provided that Borrower shall notify Agent (by fax or electronic mail) of the posting of any such documents and upon its reasonable request, provide to Agent by electronic mail electronic versions (i.e., soft copies) of such documents.  Agent shall have no obligation to request the delivery of or maintain paper copies of the documents referred to above, and each Lender shall be solely responsible for timely accessing posted documents and maintaining its copies of such documents.

Schedule 5.2

Collateral Reporting

Provide Agent with each of the documents set forth below at the following times:

If (x) no Increased Reporting Period is in effect, monthly (no later than the 15th Business Day after each fiscal month end), or (y) an Increased Reporting Period is in effect, weekly (no later than Tuesday of each week), commencing with the first such day to occur during any Increased Reporting Period,

(a)an Account roll-forward with supporting details supplied from sales journals, collection journals, credit registers and any other records of the Borrowing Base Parties, and (b)Inventory system/perpetual reports specifying the cost of the Borrowing Base Parties’ Inventory, by category (delivered electronically, if Borrower has implemented electronic reporting). (c)a Borrowing Base Certificate, (d)a detailed aging, by total, of the Borrowing Base Parties’ Accounts, together with a reconciliation and supporting documentation for any reconciling items noted, (e)a calculation of those Accounts of the Borrowing Base Parties that are not eligible for the Borrowing Base, if Borrower has not implemented electronic reporting, (f)a detailed Inventory system/perpetual report together with a reconciliation to the Borrowing Base Parties’ general ledger accounts, (g)a calculation of Inventory categories of the Borrowing Base Parties that are not eligible for the Borrowing Base, if Borrower has not implemented electronic reporting, (h)a summary aging, by vendor, of the Borrowing Base Parties’ accounts payable and any book overdraft and an aging, by vendor, of any held checks, (i)a monthly Account roll-forward, in a format acceptable to Agent in its reasonable discretion, tied to the beginning and ending account receivable balances of the Borrowing Base Parties’ general ledger (in being understood that the format provided by Borrower as of the Closing Date is acceptable to Agent), (j)notice of all claims, offsets, or disputes asserted by Account Debtors with respect to the Borrowing Base Parties’ Accounts included in the Borrowing Base, and (k)a reconciliation of Accounts, trade accounts payable, and Inventory of the Borrowing Base Parties’ general ledger accounts to its monthly financial statements including any book reserves related to each category.

If (x) no Increased Reporting Period is in effect, monthly (no later than the 15th Business Day after each fiscal month end), or (y) an Increased Reporting Period is in effect, weekly

(l)a report regarding Loan Parties’ cash and Cash Equivalents (it being understood that delivery of account statements from the relevant financial institution or securities intermediary shall be sufficient for this purpose), including an indication of which amounts constitute Qualified Cash

(no later than Tuesday of each week), commencing with the first such day to occur during any Increased Reporting Period (provided that, notwithstanding anything to the contrary contained in the Agreement, in the case of the foregoing clauses (x) and (y), the determination of whether an Increased Reporting Period exists shall be made without taking into account the inclusion of Qualified Cash in the calculation of Excess Availability),

Upon request by Agent

(m)a detailed list of Parent’s and its Restricted Subsidiaries’ customers, with address and contact information. (n)copies of purchase orders and invoices for Inventory and Equipment acquired by Parent or its Restricted Subsidiaries, (o)copies of invoices together with corresponding shipping and delivery documents, and credit memos together with corresponding supporting documentation, with respect to invoices and credit memos in excess of an amount determined in the reasonable discretion of Agent, from time to time, (p)a report regarding Parent’s and its Restricted Subsidiaries’ accrued, but unpaid, ad valorem taxes, and (q)such other reports as to the Collateral or the financial condition of Parent and its Restricted Subsidiaries as Agent may reasonably request, including balance sheet and general ledger information supporting the calculations on any Borrowing Base Certificate.

EXHIBIT C

AMENDED AND RESTATED EXHIBITS TO CREDIT AGREEMENT

[see attached]

EXHIBIT B-1

FORM OF BORROWING BASE CERTIFICATE

Wells Fargo Capital Finance, LLC, as Agent

under the below referenced Credit Agreement

2450 Colorado Avenue

Santa Monica, CA 90404

Attn:  Loan Portfolio Manager

The undersigned, ADVANCEPIERRE FOODS, INC. (formerly Pierre Foods, Inc.), a Delaware corporation (“Borrower”), pursuant to Schedule 5.2 of that certain Second Amended and Restated Credit Agreement, dated as of October 10, 2012 (as amended, restated, modified, supplemented, renewed, or extended from time to time, the “Credit Agreement”), entered into among Borrower, the lenders party thereto from time to time (each individually as a “Lender” and collectively as the “Lenders”), and WELLS FARGO CAPITAL FINANCE, LLC (formerly Wells Fargo Foothill, LLC), a Delaware limited liability company, as agent for the Lenders (in such capacity, together with its successors and assigns, if any, in such capacity, “Agent”), hereby certifies to Agent that the following items, calculated in accordance with the terms and definitions set forth in the Credit Agreement for such items, are true and correct, and, if any Advances or Letters of Credit are being requested on the date hereof, that, as of the date hereof, and after giving effect to any such currently requested Advances or Letters of Credit, no Default or Event of Default has occurred and is continuing.

All initially capitalized terms used in this Borrowing Base Certificate have the meanings set forth in the Credit Agreement unless specifically defined herein.

[Remainder of page intentionally left blank.]

Effective Date of Calculation:
A.	Borrowing Base Calculation
	1.	Eligible Accounts
		a.	85% of Eligible Accounts(1)		$
		b.	the amount, if any, of the Dilution Reserve		$
		c.	Item 1.a. minus Item 1.b.			$
	2.	Eligible Credit Card Receivables
		a.	90% of Eligible Credit Card Receivables(2)		$
		b.	Item 2.a.			$
	3.	Eligible Inventory
		a.	$125,000,000		$125,000,000
		b.	65% of Eligible Inventory(3)		$
		c.	(i)	85% times the Net Recovery Percentage	$
			(ii)	the value (calculated at the lower of cost or market on a first-in, first-out basis) of Eligible Inventory (such determination may be made as to different categories of Eligible Inventory based upon the Net Recovery Percentage applicable to such categories)	$
			(iii)	Item 3.c.(i) times Item 3.c.(ii)	$

(1)  See Annex A

(2)  See Annex B

(3)  See Annex C

	d.	The lowest of Items 3.a., 3.b., and 3.c.			$
4.	Reserves
	a.	Bank Product Reserves		$
	b.	Landlord Reserve		$
	c.	Other Inventory Reserves		$
	d.	Receivables Reserves		$
	e.	Other Reserves		$
	f.	Sum of Items 4.a., 4.b., 4.c., 4.d. and 4.e.			$
5.	Borrowing Base (Item 1.c. plus Item 2.b. plus Item 3.d. minus Item 4.f.):				$
6.	Availability Calculation
	a.	(i)	Maximum Revolver Amount	$175,000,000
		(ii)	Letter of Credit Usage	$
		(iii)	Amount of current outstanding Advances	$
		(iv)	Amount of current outstanding Swing Loans	$
		(v)	Item 6.a.(i) minus Item 6.a.(ii) minus Item 6.a.(iii) minus Item 6.a.(iv)	$
	b.	(i)	Borrowing Base (Item 5)	$
		(ii)	Letter of Credit Usage	$
		(iii)	Amount of current outstanding Advances	$
		(iv)	Amount of current outstanding Swing Loans	$

		(v)	Item 6.b.(i) minus Item 6.b.(ii) minus Item 6.b.(iii) minus Item 6.b.(iv)	$
	c.	Lesser of Item 6.a.(v) and 6.b.(v)			$
B.	Letters of Credit Calculation
	1.	Maximum Letter of Credit amount		$30,000,000
	2.	Letters of Credit permitted under Borrowing Base
		a.	Borrowing Base (from Section A, Item 5)	$
		b.	Amount of current outstanding Advances (inclusive of Swing Loans)	$
		c.	Item 2.a. minus Item 2.b.		$
	3.	Letters of Credit permitted under Maximum Revolver Amount
		a.	Maximum Revolver Amount	$175,000,000
		b.	Amount of current outstanding Advances (inclusive of Swing Loans)	$
		c.	Item 3.a. minus Item 3.b.		$
	4.	Letter of Credit Usage plus the amount of any proposed Letters of Credit			$
	5.	No Letter of Credit Availability if Item 4 is greater than Item 1, Item 2.c. or Item 3.c.			$

Additionally, the undersigned hereby certifies and represents and warrants to the Lender Group on behalf of Borrower that, as of the date hereof, all of the foregoing is true and correct as of the effective date of the calculations set forth above and that such calculations have been made in accordance with the requirements of the Credit Agreement.

ADVANCEPIERRE FOODS, INC., a Delaware corporation, as Borrower

By:

Name:

Title:

Annex A

Eligible Accounts

Accounts created by any Borrowing Base Party in the ordinary course of its business, that arise out of such Borrowing Base Party’s sale of goods or rendition of services complying with each of the representations and warranties respecting Eligible Accounts made in the Loan Documents		$
less (without duplication)
Accounts that the Account Debtor has failed to pay within 60 days of original invoice date or Accounts with selling terms of more than 30 days (other than (i) Accounts owed by the Ohio Department of Education, the Iowa Department of Education or the Archdiocese of Philadelphia, up to $2,000,000 in the aggregate (for all such Account Debtors), (ii) Accounts owed by the Kellogg Company and its Subsidiaries , and (iii) Accounts that are subject to a reverse factoring arrangement entered into in the ordinary course of business and acceptable to Agent), that are paid within 90 days of original invoice date,	$
Accounts owed by an Account Debtor (or its Affiliates) where 50% or more of all Accounts owed by that Account Debtor (or its Affiliates) are deemed ineligible under the immediately preceding clause,	$
Accounts with respect to which the Account Debtor is an Affiliate of Borrower or an employee or agent of Borrower or any Affiliate of Borrower,	$
Accounts arising in a transaction wherein goods are placed on consignment or are sold pursuant to a guaranteed sale, a sale or return, a sale on approval, a bill and hold, or any other terms by reason of which the payment by the Account Debtor may be conditional (other than warranties in the ordinary course of business),	$
Accounts that are not payable in Dollars,	$

Accounts with respect to which the Account Debtor either (i) does not maintain its chief executive office in the United States or Canada, or (ii) is not organized under the laws of the United States or Canada or any state or province thereof, or (iii) is the government of any foreign country or sovereign state, or of any state, province, municipality, or other political subdivision thereof, or of any department, agency, public corporation, or other instrumentality thereof, unless (y) the Account is supported by an irrevocable letter of credit satisfactory to Agent (as to form, substance, and issuer or domestic confirming bank) that has been delivered to Agent and is directly drawable by Agent, or (z) the Account is covered by credit insurance in form, substance, and amount, and by an insurer, reasonably satisfactory to Agent,	$
Accounts with respect to which the Account Debtor is either (i) the United States or any department, agency, or instrumentality of the United States (exclusive, however, of Accounts with respect to which the applicable Borrowing Base Party has complied, to the reasonable satisfaction of Agent, with the Assignment of Claims Act, 31 USC § 3727), or (ii) any state of the United States (exclusive , however, of Accounts with respect to the applicable Borrowing Base Party has complied, to the reasonable satisfaction of Agent, with the applicable state analog of the Assignment of Claims Act),	$
Accounts with respect to which the Account Debtor is a creditor of any Borrowing Base Party (unless the Account Debtor has provided to Agent a “non-offset” letter in form and substance reasonably satisfactory to Agent), has or has asserted a right of recoupment or setoff, or has disputed its obligation to pay all or any portion of the Account, to the extent of such claim, right of recoupment or setoff, or dispute,	$

(i) Accounts owed by Sysco Corporation or its Affiliates to the extent of the obligations owing by such Account Debtors in excess of 35% (such percentage being subject to reduction by Agent in its Permitted Discretion if the creditworthiness of such Account Debtors materially deteriorates) of all Eligible Accounts, to the extent of the obligations owing by such Account Debtors in excess of such percentage, (ii) Accounts owed by U.S. Foodservice, Inc. or its Affiliates to the extent of the obligations owing by such Account Debtors in excess of 35% (such percentage being subject to reduction by Agent in its Permitted Discretion if the creditworthiness of such Account Debtors materially deteriorates) of all Eligible Accounts, to the extent of the obligations owing by such Account Debtors in excess of such percentage, (iii) Accounts owed by Wal-Mart Stores, Inc. or its Affiliates to the extent of the obligations owing by such Account Debtors in excess of 20% (such percentage being subject to reduction by Agent in its Permitted Discretion if the creditworthiness of such Account Debtors materially deteriorates) of all Eligible Accounts, to the extent of the obligations owing by such Account Debtors in excess of such percentage, and (iv) Accounts with respect to any other Account Debtor whose total obligations owing to the Borrowing Base Parties exceed 10% (such percentage, as applied to a particular Account Debtor, being subject to reduction by Agent in its Permitted Discretion if the creditworthiness of such Account Debtor materially deteriorates) of all Eligible Accounts, to the extent of the obligations owing by such Account Debtor in excess of such percentage; provided, that, in each case, the amount of Eligible Accounts that are excluded because they exceed the foregoing percentage shall be determined by Agent based on all of the otherwise Eligible Accounts prior to giving effect to any eliminations based upon the foregoing concentration limit,	$
Accounts with respect to which the Account Debtor is subject to an Insolvency Proceeding, has gone out of business, or as to which any Borrowing Base Party has received notice of an imminent Insolvency Proceeding of such Account Debtor; provided, that notwithstanding the foregoing provisions of this clause, Agent may, in its Permitted Discretion, include as Eligible Accounts (i) Accounts that are post-petition accounts payable of an Account Debtor that is a debtor-in-possession under the Bankruptcy Code, and (ii) Accounts owing by an Account Debtor that has been reorganized or restructured following one of the events described in this clause and has a credit quality satisfactory to Agent,	$
Accounts, the collection of which, Agent, in its Permitted Discretion, believes to be doubtful by reason of the Account Debtor’s financial condition,	$

Accounts that are not subject to a valid and perfected first priority Agent’s Lien,	$
Accounts with respect to which (i) the goods giving rise to such Account have not been shipped and billed to the Account Debtor, or (ii) the services giving rise to such Account have not been performed and billed to the Account Debtor,	$
Accounts with respect to which the Account Debtor is a Sanctioned Person or a Sanctioned Entity,	$
Accounts that represent the right to receive progress payments or other advance billings that are due prior to the completion of performance by any Borrowing Base Party of the subject contract for goods or services,	$
Accounts owned by a target acquired in connection with a Permitted Acquisition or Permitted Investment with respect to which the Aggregate Consideration therefor is in excess of $10,000,000, until the completion of a field examination with respect to such Accounts, in each case, reasonably satisfactory to Agent (which field examination may be conducted prior to the closing of such Permitted Acquisition or Permitted Investment), and	$
Accounts constituting Credit Card Receivables.	$
Total Excluded Accounts		$
Eligible Accounts (Total Accounts less Total Excluded Accounts):		$

Annex B

Eligible Credit Card Receivables

Credit Card Receivables of any Borrowing Base Party complying with each of the representations and warranties respecting Eligible Credit Card Receivables made in the Loan Documents		$
less (without duplication)
Credit Card Receivables that do not arise from the actual and bona fide sale and delivery of goods or rendition of services by such Borrowing Base Party in the ordinary course of the business of such Borrowing Base Party,	$
Credit Card Receivables that are past due (beyond any stated applicable grace period, if any, therefor) pursuant to the terms set forth in the Credit Card Agreements with the Credit Card Issuer or Credit Card Processor of the credit card or debit card used in the purchase which give rise to such Credit Card Receivables,	$
Credit Card Receivables that are unpaid more than 5 Business Days after the date of the sale of goods or rendition of services giving rise to such Credit Card Receivables,	$
Credit Card Receivables with respect to which the Credit Card Issuer or Credit Card Processor obligated in respect thereof has failed to remit any payment in respect of such Credit Card Receivables,	$
Credit Card Receivables with respect to which the a Credit Card Issuer or Credit Card Processor has or has asserted a counterclaim, defense or dispute against such Credit Card Receivables (other than customary set-offs to fees and chargebacks consistent with the practices of such Credit Card Issuer or Credit Card Processor with such Borrowing Base Party from time to time), to the extent of such counterclaim, defense or dispute,	$
Credit Card Receivables with respect to which a Credit Card Issuer or Credit Card Processor has set off against amounts otherwise payable by such Credit Card Issuer or Credit Card Processor to such Borrowing Base Party for the purpose of establishing a reserve or collateral for obligations of such Borrowing Base Party to such Credit Card Issuer or Credit Card Processor (other than customary set-offs and chargebacks consistent with the practices of such Credit Card Issuer or Credit Card Processor from time to time), to the extent of such set off,	$
Credit Card Receivables not owned by a Borrowing Base Party or as to which a Borrowing Base Party does not have good title,	$

Credit Card Receivables with respect to which the Credit Card Issuer or Credit Card Processor is subject to an Insolvency Proceeding, has gone out of business, or as to which any Borrowing Base Party has received notice of an imminent Insolvency Proceeding of such Credit Card Issuer or Credit Card Processor,	$
Credit Card Receivables that Agent, in its Permitted Discretion, believes the collection of which to be doubtful by reason of the Credit Card Issuer’s or Credit Card Processor’s financial condition,	$
Credit Card Receivables that are not subject to a valid and perfected first priority Agent’s Lien,	$
Credit Card Receivables with respect to which an event of default has occurred under the relevant Credit Card Agreement with the Credit Card Issuer or Credit Card Processor who has issued the credit card or debit card or handles payments under the credit card or debit card used in the sale which gave rise to such Credit Card Receivables which event of default gives such Credit Card Issuer or Credit Card Processor the right to cease or suspend payments to such Borrowing Base Party,	$
Credit Card Receivables as to which the customers using the credit card or debit card giving rise to such Credit Card Receivables has returned the merchandise purchased giving rise to such Credit Card Receivable,	$
Credit Card Receivables that are not subject to Credit Card Notifications and, with respect to Credit Card Receivables that are first becoming Eligible Credit Card Receivables after the Effective Date, Agent has not received a field examination (and such other diligence as Agent may reasonably require) with respect to such Person’s Credit Card Receivables by a field examiner acceptable to Agent in its Permitted Discretion, the results, scope, assumptions, and methodology of which are acceptable to Agent in its Permitted Discretion,	$
Credit Card Receivables with respect to which the applicable Credit Card Processor is not organized or does not have its principal offices or assets within the United States or another jurisdiction acceptable to the Agent in its Permitted Discretion,	$
Credit Card Receivables with respect to which the Credit Card Processor is an Affiliate of any Borrowing Base Party or an employee or agent of any Borrowing Base Party or any Affiliate of any Borrowing Base Party,	$

Credit Card Receivables with respect to which the Credit Card Processor either (i) does not maintain its chief executive office in the United States, or (ii) is not organized under the laws of the United States or any state or province thereof,	$
Credit Card Receivables that are not payable in Dollars,	$
Credit Card Receivables that are evidenced by chattel paper or an instrument of any kind, or have been reduced to judgment,	$
Credit Card Receivables that would not constitute Eligible Accounts (other than by virtue of clause (q) of the definition of “Eligible Accounts” in the Credit Agreement) (assuming for purposes of such determination that such Credit Card Receivables constitute Accounts), and	$
Credit Card Receivables that are billings for interest, fees or late charges	$
Total Excluded Credit Card Receivables		$
Eligible Credit Card Receivables (Total Credit Card Receivables less Total Excluded Credit Card Receivables):		$

Annex C

Eligible Inventory

Inventory consisting of first quality finished goods or raw materials held for sale in the ordinary course of any Borrowing Base Party’s business, that complies with each of the representations and warranties respecting Eligible Inventory made in the Loan Documents		$
less (without duplication)
Inventory to which none of the Borrowing Base Parties has good, valid, and marketable title,	$
Inventory not located at one of the locations in the continental United States set forth on Schedule E-1 to the Credit Agreement or at any other location in the continental United States disclosed to Agent in writing after the Amendment Effective Date (or in-transit from one such location to another such location),	$
Inventory located on real property leased by a Borrowing Base Party or in a contract warehouse or with a bailee, in each case, unless either (i) it is subject to a Collateral Access Agreement executed by the lessor or warehouseman, as the case may be, and it is segregated or otherwise separately identifiable from goods of others, if any, stored on the premises, or (ii) Agent has established a Landlord Reserve with respect to such location,	$
Inventory not subject to a valid and perfected first priority Agent’s Lien, subject only to (i) liens or trusts arising under the Perishable Agricultural Commodities Act, the Packers and Stockyard Act, or similar federal, state or local ordinances*, and (ii) Liens described in, and within the terms of, subsection (g) of the definition of Permitted Liens,	$
Inventory consisting of goods returned or rejected by any Borrowing Base Party’s customers,	$
Inventory consisting of goods that are obsolete or slow moving or custom items, work-in-process, or goods that constitute spare parts, packaging and shipping materials, supplies used or consumed in any Borrowing Base Party’s business, bill and hold goods, defective goods, “seconds,” or Inventory acquired on consignment,	$

*  As of the date hereof, the value of the Eligible Inventory subject to such liens or trusts is $              , and the aggregate unpaid amount owing to suppliers for perishable agricultural commodities, livestock and other goods subject to the such liens or trusts is $            as of the date hereof.

Inventory subject to third party trademark, licensing or other proprietary rights, unless Agent is satisfied that such Inventory can be freely sold by Agent upon and after the occurrence of an Event of Default despite such third party rights, and	$
Inventory acquired in connection with a Permitted Acquisition or Permitted Investment with respect to which the Aggregate Consideration therefor is in excess of $10,000,000, until the completion of an appraisal and field examination of such Inventory, in each case, reasonably satisfactory to Agent (which appraisal and field examination may be conducted prior to the closing of such Permitted Acquisition or Permitted Investment.	$
Total Excluded Inventory		$
Eligible Inventory (Total Inventory less Total Excluded Inventory):		$

EXHIBIT C-1

FORM OF COMPLIANCE CERTIFICATE

[on Borrower’s letterhead]

To:Wells Fargo Capital Finance, LLC

2450 Colorado Avenue

Suite 3000 West

Santa Monica, CA 90404

Attn: Loan Portfolio Manager

Re:Compliance Certificate dated                

Ladies and Gentlemen:

Reference is made to that certain SECOND AMENDED AND RESTATED CREDIT AGREEMENT (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), dated as of October 10, 2012, by and among the lenders party thereto (each individually as a “Lender” and collectively as the “Lenders”), WELLS FARGO CAPITAL FINANCE, LLC (formerly Wells Fargo Foothill, LLC), a Delaware limited liability company, as agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, “Agent”), and ADVANCEPIERRE FOODS, INC. (formerly Pierre Foods, Inc.), a Delaware corporation (“Borrower”). Capitalized terms used in this Compliance Certificate have the meanings set forth in the Credit Agreement unless specifically defined herein.

Pursuant to Schedule 5.1 of the Credit Agreement, the undersigned officer of [Borrower][Parent] hereby certifies as of the date hereof that:

1.The financial information of Parent and its Restricted Subsidiaries furnished in Schedule 1 attached hereto, has been prepared in accordance with GAAP [AS APPLICABLE: (except subject to year-end adjustments and for the lack of footnotes)], and fairly presents in all material respects the financial condition of Parent and its Restricted Subsidiaries, as of the dates of such financial statements.

2.Such officer has reviewed the terms of the Credit Agreement and has made, or caused to be made under his/her supervision, a review in reasonable detail of the transactions and condition of Parent and its Restricted Subsidiaries during the accounting period covered by the financial statements furnished in Schedule 1 attached hereto.

3.Such review has not disclosed the existence on and as of the date hereof, and the undersigned does not have knowledge of the existence as of the date hereof, of any event or condition that constitutes a Default or Event of Default, except for such conditions or events listed on Schedule 2 attached hereto, specifying the nature and period of existence thereof and what action Parent and its Restricted Subsidiaries have taken, are taking, or propose to take with respect thereto.

4.Schedule 3 attached hereto sets forth all Subsidiaries of Parent designated or re-designated as Unrestricted Subsidiaries or Restricted Subsidiaries, as applicable, if any, during the most recently ended Fiscal Quarter.

5.Attached hereto as Schedule 4 is a true and correct calculation of the Fixed Charge Coverage Ratio (including calculations of EBITDA and Fixed Charges)  [Parent’s and its Restricted Subsidiaries’ Fixed Charge Coverage Ratio, measured on a Fiscal Quarter end basis, for the Calculation Period ending         , 20   , is    : 1.0, which [is/is not] greater than or equal to the ratio set forth in Section 7 of the Credit Agreement.]

[signature page follows]

IN WITNESS WHEREOF, this Compliance Certificate is executed by the undersigned this       day of                ,         .

[ADVANCEPIERRE FOODS, INC., a Delaware corporation, as Borrower]

By:

Name:

Title:

[ADVANCEPIERRE FOODS HOLDINGS, INC., a Delaware corporation]

By:

Name:

Title:

SCHEDULE 1

Financial Information

SCHEDULE 2

Default or Event of Default

SCHEDULE 3

Designation of Restricted and Unrestricted Subsidiaries

SCHEDULE 4

Financial Covenant

[Attach true and correct calculation of the Fixed Charge Coverage Ratio (including calculations of EBITDA and Fixed Charges)]

EXHIBIT D

CONDITIONS PRECEDENT TO AMENDMENT EFFECTIVE DATE

The satisfaction (or waiver in writing by Agent) of each of the following conditions precedent shall constitute conditions precedent to the effectiveness of the Amendment:

(a)Agent shall have received evidence that appropriate financing statements have been, or will be delivered in form for filing for with respect to each Loan Party in such Loan Party’s jurisdiction of organization;

(b)Agent shall have received each of the following documents duly executed by the parties thereto:

(i)the Amendment;

(ii)the Security Agreement, together with evidence that all Stock certificates, if any, and undated Stock powers executed in blank with respect to any Stock pledged thereunder have been delivered to the Security Agent (as defined in the Intercreditor Agreement) to be held in accordance with the terms of the Intercreditor Agreement,

(iii)a Trademark Security Agreement with respect to any Trademarks of any Loan Party that constitute Collateral and that are subject to a registration or pending application for registration in the United Stated Patent and Trademark Office, and as to which a Trademark Security Agreement has not previously been executed and delivered by such Loan Party,

(iv)an amendment to the Fee Letter, in form and substance reasonably satisfactory to Agent,

(v)the Guaranty referred to in clause (a) of the definition of “Guaranties” set forth in the Credit Agreement,

(vi)the Intercompany Subordination Agreement,

(vii)a letter, in form and substance reasonably satisfactory to Agent, respecting the amount necessary to repay in full all of the obligations of each Loan Party owing in respect of the Existing First Lien Term Loan Facility and obtain a release of all of the Liens existing in connection therewith in and to the assets of each Loan Party,

(viii)a letter, in form and substance reasonably satisfactory to Agent, respecting the amount necessary to repay in full all of the obligations of each Loan Party owing in respect of the Existing Second Lien Term Loan Facility and obtain a release of all of the Liens existing in connection therewith in and to the assets of each Loan Party, and

(ix)the Intercreditor Agreement;

(c)Agent shall have received (i) a certificate of each Loan Party, dated the Amendment Effective Date, signed by an Authorized Person of such Loan Party, and attested to by the secretary or any assistant secretary of such Loan Party, together with copies of the certificate or articles of incorporation and by-laws (or other equivalent Governing Documents), as applicable, of such Loan Party, as in effect on the Amendment Effective Date, and the resolutions of such Loan Party authorizing its

2

execution, delivery, and performance of the Amendment and the other Loan Documents to which such Loan Party is a party and authorizing specific officers of such Loan Party to execute the same, which certificate shall also attest to the incumbency and signatures of such specific officers of such Loan Party, and each of the foregoing shall be in form and substance reasonably acceptable to Agent, and (ii) a good standing certificate (to the extent such concept exists and delivery is customary in the applicable jurisdiction), dated within 30 days of the Amendment Effective Date, from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation.

(d)Agent shall have received an opinion of Skadden, Arps, Slate, Meagher & Flom LLP, special counsel to the Loan Parties, and opinions of local counsel to the Loan Parties in Maine, Ohio and Oklahoma, in each case in form and substance reasonably satisfactory to Agent and covering such customary matters incident to the transactions contemplated by the Amendment as Agent may reasonably request;

(e)Agent shall have received updated certificates of insurance to the extent required by Section 5.8;

(f)Agent shall have received a certificate executed by the chief financial officer of Borrower certifying that Parent, Holdings, Borrower and its Restricted Subsidiaries, on a consolidated basis, are Solvent after giving effect to the consummation of the Transactions on the Amendment Effective Date;

(g)Borrower shall have paid to Agent all Lender Group Expenses (including all attorneys’ fees constituting Lender Group Expenses) in connection with the preparation, negotiation, execution and delivery of the Amendment and any documents and instruments relating thereto, and invoiced prior to the date hereof;

(h)Agent shall have received evidence, in form and substance satisfactory to Agent, that all of the conditions to funding set forth in the Term Loan Documents have been satisfied, and Agent shall have received true, correct and complete copies of the Term Loan Credit Agreement and each of the other material Term Loan Documents;

(i)The representations and warranties of the Loan Parties and their Subsidiaries contained in the Amendment, in each case, shall be true, correct and complete in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof); and

(j)No Default or Event of Default shall have occurred and be continuing as of the Amendment Effective, nor shall either immediately result after giving effect to the Amendment or from the consummation of any of the Transactions.

3

EX-10.12

Exhibit 10.12

AMENDMENT NO. 1

TO

EMPLOYMENT AGREEMENT

THIS AMENDMENT TO EMPLOYMENT AGREEMENT (this “Amendment”) is entered into as of March 24, 2016 (the “Effective Date”), by and between AdvancePierre Foods, Inc. (the “Company” and James L. Clough (the “Executive”).

W I T N E S S E T H:

WHEREAS, the Company and the Executive are parties to that certain Employment Agreement entered into as of July 8, 2013 (the “Employment Agreement”); and

WHEREAS, the Company, as creditor, and the Executive, as debtor, are parties to that certain AdvancePierre Foods, Inc. Relocation Repayment Agreement entered into on October 14, 2014 (the “Relocation Agreement”), as provided on Exhibit A hereto, pursuant to which a contingent loan exists in the amount of one hundred thousand dollars ($100,000); and

WHEREAS, the parties have agreed to amend the Employment Agreement and terminate the Relocation Agreement effective as of the Effective Date as provided in this Amendment.

NOW, THEREFORE, in consideration of the mutual covenants, representations, warranties and agreements contained herein, and for other valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:

1.Amendments to Employment Agreement.

(a).Section 13 is hereby inserted into the Employment Agreement, which Section shall read as follows:

“13. Termination Payment.

(a).Subject to Section 13(b), in exchange for valuable consideration, the sufficiency of which is hereby acknowledged, the Executive agrees to pay the Company one hundred thousand dollars ($100,000) in the event the Executive voluntarily terminates employment with the Company prior to October 14, 2017 or is terminated for Cause prior to such date.

(b).If prior to October 14, 2017, a transaction occurs during the period of the Executive’s continuous service that results in the vesting and acquisition of restricted shares granted to the Executive in connection with that certain Restricted Share Award Agreement dated November 11, 2013 by and between the Executive and AdvancePierre Foods Holdings, Inc. (formerly known as Pierre Foods Holding Corporation), the

following two events shall occur: (i) fifty thousand dollars ($50,000) shall be immediately due and payable from the Executive to the Company, which amount shall be considered a non-contingent payment obligation for purposes of Section 13(c) below; and (ii) the term “fifty thousand dollars ($50,000)” shall be substituted for the term “one hundred thousand dollars ($100,000)” in Section 13(a), which Section shall otherwise remain in full force and effect.

(c)In the event a non-contingent payment obligation arises under this Section 13, the Executive shall make such payment within fourteen (14) days from the date such obligation arises, after which time interest at the maximum legal rate on any unpaid balance shall be due and owing by the Executive, together with all costs (including collection costs) and attorney’s fees incurred by the Company in the collection of such amounts to the extent permitted by applicable law. The Executive agrees that any amount owing to the Company under this Section 13 may, at the Company’s discretion, be deducted from any monies owing by the Company to the Executive, including any salary, wages, bonuses or vacation pay.

(d).The Executive acknowledges that he shall be personally and solely responsible for any taxes of any kind incurred as a result of the operation of this Section 13.

(e).If the Executive remains continuously employed by the Company as of October 14, 2017, this Section 13 shall be null and void ab initio and be of no further force or effect.”

(b). Section 14 is hereby inserted into the Employment Agreement, which Section shall read as follows:

“14. Governing Law. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of Ohio, without regard to its conflict of laws provisions.”

2.Consideration for Amendment to Employment Agreement. As consideration for and subject to the Executive entering into this Amendment, the Company hereby agrees to forgive the contingent loan underlying the Relocation Agreement in its entirety, effective as of the Effective Date, and to terminate the Relocation Agreement without payment thereunder.

3.Miscellaneous.

(a)Governing Law. The validity, interpretation, construction and performance of this Amendment shall be governed by the laws of the State of Ohio, without regard to its conflict of laws provisions.

(b)Effect on Agreement. Except as specifically amended hereby, the Employment Agreement shall remain in full force and effect.

(c)Tax Consequences. The Executive acknowledges that he shall be personally and solely responsible for any taxes of any kind incurred as a result of the operation of this Amendment.

(d)Counterparts. This Amendment may be executed in or more counterparts, each of which shall be deemed to be an original, but all of which together will constitute one and the same instrument.

IN WITNESS WHEREOF, the parties have executed this Amendment effective as of the date first above written.

AdvancePierre Foods, Inc.		Jim Clough
By:	/s/ Michael B. Sims		/s/ James L. Clough
	(Signature)		(Signature)
Name:	Michael B. Sims		James L. Clough
	(Typed or printed)		(Typed or printed)
Title:	Chief Financial Officer	Title:	President - Foodservice
Date:	3-25-16	Date:	3-25-16

Exhibit A

ADVANCEPIERRE FOODS
RELOCATION REPAYMENT AGREEMENT

This Relocation Repayment Agreement (the “Agreement”) is between AdvancePierre Foods (hereinafter referred to as “APF”) and Jim Cough (hereinafter referred to as “Employee”).

WHEREAS, In the course of Employee’s employment with APF, it is mutually agreed that it would be in the best interest of both parties for Employee to relocate.

WHEREAS, In order to sell his current home immediately, Employee will incur losses in excess of the amounts covered under APFs standard relocation policy.

WHEREAS, APF is willing to pay part or all of such losses so long as Employee continues his employment.

NOW, THEREFORE, APF and Employee agree as follows:

1.APF will make a Forgivable Loan to Employee in the amount of one hundred thousand dollars ($100,000), in addition to the current APF relocation policy benefits. The Forgivable Loan will accrue interest in arrears on the unpaid principal balance at an annual rate equal to the mid-term adjusted Applicable Federal Rate (“AFR”) for annual compounding as published by the Internal Revenue Service on the date hereof and to be reset each year hereafter on the anniversary date.

2.In return, Employee agrees to repay principal together with accrued interest on the Forgivable Loan in accordance with the following conditions:

a.If Employee remains continuously employed by APF for more than three (3) years from the date he receives the proceeds of the Forgivable Loan (“Date of Loan”), he shall have no obligation to repay the Forgivable Loan, but will be personally and solely responsible for any taxes incurred as a result of APF’s agreement to forgo repayment;

b.Employee agrees to repay APF the full amount of the Forgivable Loan if he voluntarily terminates employment with APF prior to the third anniversary of the Date of Loan or is “Terminated for cause” within the three-year period from the Date of Loan. “Termination for cause” shall mean a termination of employment that results from a) a willful violation by Employee of any law, rule, or regulation which violation results, or could reasonably be expected to result, in material harm to the business or reputation of the Company, or b) the conviction or commission of or the entry of a guilty plea or plea of no contest to any felony or to any other crime involving moral turpitude by Employee. “Termination for cause” does not include change in control, office closings, or job eliminations. Employee will have fourteen (14) days from date of resignation or Termination for cause to make repayment;

c.If prior to completion of three (3) years of continuous service commencing from the Date of Loan, a transaction occurs that results in the vesting and acquisition of restricted shares granted to Employee in connection with the Restricted Share Award Agreement dated November 11, 2013 by and between Employee and Pierre Foods Holding Corporation, he shall have the obligation to repay fifty percent (50%) of the Forgivable Loan and related accrued outstanding, but will be personally and solely responsible for any taxes incurred as a result of APF’s agreement to forgo repayment of any amounts; and

d.Employee shall have the right, but not the obligation, to repay any or all of the Forgivable Loan at any time.

3.This Agreement does not in any way alter Employee’s employment at will status with APF. Employee acknowledges that despite this Agreement, he is and remains able to terminate his employment at any time, for any reason, and APF retains that same right.

4.Employee agrees to provide APF evidence of the home sale losses.

5.Employee agrees that any amount owing to APF under this Agreement may, at APF’s discretion, be deducted from any monies owing by APF to Employee, including any salary, wages, bonuses, vacation pay, or severance pay, and that any excess of such amounts owing to APF, beyond any amounts deducted, shall be paid within fourteen (14) days after separation of employment, after which interest at the maximum legal rate on any unpaid balance shall be due and owing by Employee, together with all costs (including collection costs) and attorney’s fees which are incurred by APF in the collection of such amounts.

6.Employee understands that a signed copy of this Relocation Repayment Agreement must be returned to APF’s Human Resources Department before he receives the benefits.

ADVANCEPIERRE FOODS		JIM CLOUGH
By:	/s/ Michael B. Sims		/s/ James L. Clough
	(Signature)		(Signature)
Name:	Michael B. Sims		James L. Clough
	(Typed or printed)		(Typed or printed)
Title:	CFO	Title:	President - FS
Date:	10/14/2014	Date:	10/14/2014

To be filled out at the time of termination.

Date terminated:                                                  Reason(s) for termination:                                             

AdvancePierre Foods to be repaid $               in full by:                                           

AmountDate

EX-10.13

Exhibit 10.13

CONFIDENTIAL

December 23, 2013

Mr. George Chappelle
38W509 Golfview Ct
St. Charles IL 60175
geochappelle@comcast.net

Dear George:

We are very pleased to offer you the opportunity to join AdvancePierre Foods, Inc. (the “Company”) as Senior Vice President of Supply Chain. This letter will confirm the terms and conditions of our offer. Your effective employment date will be no later than January 20, 2013 (the “Employment Date”). Please return this letter signed by you without modification, no later than December 26, 2013, after which time this offer of employment will automatically expire.

1.Position and Duties. You shall be the Senior Vice President of Supply Chain and shall report to the Company’s President and CEO, John Simons. You shall have supervision and control over, and responsibility for, the operations & supply chain functions of the Company.

2.Base Salary. Your annualized base salary will be $425,000, less applicable withholdings and deductions, to be paid in accordance with the company’s regular payroll practices. The Company will review your salary annually, but any adjustments are at the sole discretion of the Company. The first review shall be as of the first anniversary of your Employment Date (or sooner, if it becomes standard practice to review Company employees as of the same date). After any adjustments the term “Annual Base Salary” for all purposes shall refer to base salary annualized, as most recently adjusted.

3.Annual Bonus. You will be eligible to receive an annual bonus at a target level of 50% and a maximum of 100% (range 0% to 100%) of your Annual Base Salary according to performance targets established by the Company (the “Annual Bonus”). Any such bonus earned shall be paid as soon as practicable but in no event later than the 15th day of the third month following the end of your taxable year (or the company’s taxable year, whichever is later) in which your right to receive such bonus is first determined. You will be entitled to receive the Annual Bonus only if you remain employed in good standing by the Company through the payment date of the Annual Bonus.

4.Equity Interest. As soon as practicable following your Employment Date and subject to compliance with applicable securities laws, the Company shall grant to you an equity interest of 7,500 shares in the Company, which equity interest shall be evidenced by and subject to the terms of an equity award agreement to be entered into by you and the Company. As described in the equity award agreement, one third of the shares shall become vested on each of the first three anniversaries of the grant date.

5.Employee Benefits. You will be eligible to participate in the Company’s 401(k), health insurance, short-term and long-term disability insurance, life insurance and other employee benefit plans in accordance with the terms and conditions of those plans as may be amended from time to time and on terms and conditions no less favorable than those applicable to the Company’s other senior executives. The Company may modify, interpret or discontinue such plans in its sole discretion.

6.Vacation. You will be eligible to accrue 20 days of paid vacation each calendar year, to be taken at times reasonably agreeable to the Company and in compliance with Company policy.

7.Office. Your home office will be in Cincinnati, Ohio but you will be expected to travel as necessary for customer meetings, plant meetings and support contacts across the Company’s network.

8.Confidentiality, Non-Compete, and Non-Solicitation Agreement. You will be required to sign the Company’s Confidentiality, Non-Compete and Non-Solicitation Agreement on or prior to your Employment Date.

9.Employment Status. You acknowledge that your employment with the Company is at-will, and either party can terminate the relationship at any time with or without cause and with or without notice.

(a) If your employment is terminated:

(i)by the Company for any reason other than (x) Cause or (y) disability that continues for more than six (6) months or

(ii)within three (3) months following the occurrence of a “Change In Control” (as defined below) by you as the result of:

(A)a material reduction in your then current salary or bonus level;

(B)a change resulting in the material diminution of your then current job description and responsibilities;

(C)a material change in reporting relationship; or

(D)a relocation of your office more than 50 miles from your then current office that requires relocation from your then current home; provided that you have notified the Company in writing within no more than 60 days of the initial existence of an event described in (A)-(D) and such event has not been cured within 30 days after the Company’s receipt of such notice;

then your employment will be deemed to have been severed and you shall receive salary continuation payments for one (1) year at your current annual salary (the “Severance”). No Severance shall be paid unless your termination constitutes a “separation from service” as defined under section 409A of the Code. Your right to receive the Severance

is contingent upon your (i) entering into (and not revoking) within the time periods provided by applicable law a comprehensive release of claims substantially in the form as attached hereto and (ii) continued compliance with the terms of the Company’s Confidentiality, Non-Compete and Non-Solicitation Agreement. Payment of the Severance shall commence within 30 days following the expiration of the execution (and non-revocation) period applicable to the release as statutorily required by law, but in no event later than the 15th day of the third month following the end of your taxable year (or the Company’s taxable year, whichever is later) in which such termination of employment with the Company occurs. If the revocation period spans two calendar years, then, to the extent necessary to comply with section 409A of the Code, payments shall commence in the second of the two years. Any Severance payable hereunder shall reduce the amount of any other severance you may otherwise be due from the Company or any of its subsidiaries or affiliates (including, but not limited to any severance set forth in any other employment agreement, severance plan, policy or arrangement or stock purchase agreement). For the avoidance of doubt, if your employment is terminated by reason of your voluntary resignation, death or disability that continues for more than six (6) months, you shall not be entitled to the Severance provided for hereunder. Each amount to be paid and each benefit to be provided shall be construed as a separate identified payment for purposes of section 409A of the Code.

“Change In Control” shall mean: the sale or other transfer of the Company to an Independent Third Party (as defined below) or group of Independent Third Parties pursuant to which such party or parties acquire (i) capital stock of the Company possessing the voting power under normal circumstances (without regard to the occurrence of any contingency) to elect a majority of the Company’s board of directors (whether by merger, consolidation or sale or transfer of the Company’s capital stock) or (ii) all or substantially all of the Company’s assets determined on a consolidated basis. “Independent Third Party” means any person or entity who, immediately prior to the contemplated transaction, does not own in excess of 5% of the common stock on a fully-diluted basis (a “5% Owner”), who is not controlling, controlled by or under common control with any such 5% Owner and who is not the spouse or descendant (by birth or adoption) of any such 5% Owner or a trust for the benefit of such 5% Owner and/or such other persons.

“Cause” shall mean one or more of the following: (A) any material breach of this letter agreement by you; (B) willful violation by you of any law, rule, regulation, which violation results, or could reasonably be expected to result, in material harm to the business or reputation of the Company; or (C) the conviction or commission of or the entry of a guilty plea or plea of no contest to any felony or to any other crime involving moral turpitude.

(b) No Mitigation. You shall not be obligated to seek new employment or take any other action to mitigate the benefits to which you are entitled hereunder.

10.Immigration Compliance. Your offer of employment is contingent upon you verifying your employment eligibility in accordance with the U.S. Immigration Reform Control Act of 1986.

11.Reimbursement. The Company will reimburse you for reasonable travel, entertainment and other business-related expenses you incur on behalf of the Company, that are consistent with the Company’s policies in effect from time to time regarding travel, entertainment and other business expenses, subject to the Company’s requirements regarding the reporting and documentation of such expenses. Such reimbursements shall be payable to you as soon as practicable, but in no event later than the last business day of the calendar year next following the calendar year in which the expenses were incurred.

12.Insurance. The Company will maintain you as an insured party on all directors’ and officers’ insurance that it maintains for the benefit of its directors and officers on at least the same basis as all other covered individuals. The Company shall not be obligated, however, to maintain directors’ and officers’ insurance.

13.Agreement. No failure or delay on the part of the Company or you in enforcing or exercising any right or remedy under this letter will operate as a waiver thereof. This letter agreement may not be amended or modified except by an express written agreement signed by you and an authorized representative of the Company. This letter agreement (along with the final form of any referenced document) represents the entire agreement between you and the Company, and no verbal or written agreement, promises or representations that were not specifically provided for in this letter agreement will be binding upon you or the Company.

We look forward to you joining our Company!

[SIGNATURE PAGE FOLLOWS]

On behalf of AdvancePierre Foods, Inc.
/s/ John N. Simons
Title	President and Chief Executive Officer

You hereby acknowledge and agree that the terms and conditions set forth above constitute the entire terms and conditions of your employment agreement with the Company.

Signed and Accepted by:	/s/ George Chappelle
	Mr. George Chappelle
	Date: 12/24/2013

EX-10.14

Exhibit 10.14

CONFIDENTIAL

November 4, 2013

Mr. Tom Lavan
25 Albemarle Ave
Richmond, VA 23226
tom.lavan@gmail.com

Dear Tom:

We are very pleased to offer you the opportunity to join AdvancePierre Foods, Inc. (the “Company”) as President, Retail. This letter will confirm the terms and conditions of our offer. Your effective employment date will be no later than November 4, 2013 (the “Employment Date”). Please return this letter signed by you without modification, no later than November 12, 2013, after which time this offer of employment will automatically expire.

1.Position and Duties. You shall be the President, Retail and shall report to the Company’s President and CEO, John Simons. You shall have supervision and control over, and responsibility for, the day-to-day management and operational functions of the Retail Business Unit.

2.Base Salary. Your annualized base salary will be $275,000, less applicable withholdings and deductions, to be paid in accordance with the company’s regular payroll practices. The Company will review your salary annually, but any adjustments are at the sole discretion of the Company. The first review shall be as of the first anniversary of your Employment Date (or sooner, if it becomes standard practice to review Company employees as of the same date). After any adjustments the term “Annual Base Salary” for all purposes shall refer to base salary annualized, as most recently adjusted.

3.Annual Bonus. You will be eligible to receive an annual bonus at a target level of 50% and a maximum of 100% (range 0% to 100%) of your Annual Base Salary according to performance targets established by the Company (the “Annual Bonus”). Any such bonus earned shall be paid as soon as practicable but in no event later than the 15th day of the third month following the end of your taxable year (or the company’s taxable year, whichever is later) in which your right to receive such bonus is first determined. You will be entitled to receive the Annual Bonus only if you remain employed in good standing by the Company through the payment date of the Annual Bonus.

4.Equity Interest. As soon as practicable following your Employment Date and subject to compliance with applicable securities laws, the Company shall grant to you an equity interest of 3,500 shares in the Company, which equity interest shall be evidenced by and subject to the terms of an equity award agreement to be entered into by you and the Company. As described in the equity award agreement, one third of the shares shall become vested on each of the first three anniversaries of the grant date.

5.Employee Benefits. You will be eligible to participate in the Company’s 401(k), health insurance, short-term and long-term disability insurance, life insurance and other employee benefit plans in accordance with the terms and conditions of those plans as may be amended from time to time and on terms and conditions no less favorable than those applicable to the

Company’s other senior executives. The Company may modify, interpret or discontinue such plans in its sole discretion.

6.Vacation. You will be eligible to accrue 20 days of paid vacation each calendar year, to be taken at times reasonably agreeable to the Company and in compliance with Company policy.

7.Office. Your home office will be in Cincinnati, Ohio but you will be expected to travel as necessary for customer meetings, plant meetings and support contacts across the Company’s network.

8.Confidentiality, Non-Compete, and Non-Solicitation Agreement. You will be required to sign the Company’s Confidentiality, Non-Compete and Non-Solicitation Agreement on or prior to your Employment Date.

9.Employment Status. You acknowledge that your employment with the Company is at-will, and either party can terminate the relationship at any time with or without cause and with or without notice.

(a) If your employment is terminated:

(i)by the Company for any reason other than (x) Cause or (y) disability that continues for more than six (6) months or

(ii)within three (3) months following the occurrence of a “Change In Control” (as defined below) by you as the result of:

(A)a material reduction in your then current salary or bonus level;

(B)a change resulting in the material diminution of your then current job description and responsibilities;

(C)a material change in reporting relationship; or

(D)a relocation of your office more than 50 miles from your then current office that requires relocation from your then current home; provided that you have notified the Company in writing within no more than 60 days of the initial existence of an event described in (A)-(D) and such event has not been cured within 30 days after the Company’s receipt of such notice;

then your employment will be deemed to have been severed and you shall receive salary continuation payments for one (1) year at your current annual salary (the “Severance”). No Severance shall be paid unless your termination constitutes a “separation from service” as defined under section 409A of the Code. Your right to receive the Severance is contingent upon your (i) entering into (and not revoking) within the time periods provided by applicable law a comprehensive release of claims substantially in the form as attached hereto and (ii) continued compliance with the terms of the Company’s Confidentiality, Non-Compete and Non-Solicitation Agreement. Payment of the Severance shall commence within 30 days following the expiration of the execution (and non-revocation) period applicable to the release as statutorily required by law, but in no event later than the 15th day of the third month following the end of your taxable year (or the Company’s taxable year, whichever is later) in

which such termination of employment with the Company occurs. If the revocation period spans two calendar years, then, to the extent necessary to comply with section 409A of the Code, payments shall commence in the second of the two years. Any Severance payable hereunder shall reduce the amount of any other severance you may otherwise be due from the Company or any of its subsidiaries or affiliates (including, but not limited to any severance set forth in any other employment agreement, severance plan, policy or arrangement or stock purchase agreement). For the avoidance of doubt, if your employment is terminated by reason of your voluntary resignation, death or disability that continues for more than six (6) months, you shall not be entitled to the Severance provided for hereunder. Each amount to be paid and each benefit to be provided shall be construed as a separate identified payment for purposes of section 409A of the Code.

“Change In Control” shall mean: the sale or other transfer of the Company to an Independent Third Party (as defined below) or group of Independent Third Parties pursuant to which such party or parties acquire (i) capital stock of the Company possessing the voting power under normal circumstances (without regard to the occurrence of any contingency) to elect a majority of the Company’s board of directors (whether by merger, consolidation or sale or transfer of the Company’s capital stock) or (ii) all or substantially all of the Company’s assets determined on a consolidated basis. “Independent Third Party” means any person or entity who, immediately prior to the contemplated transaction, does not own in excess of 5% of the common stock on a fully-diluted basis (a “5% Owner”), who is not controlling, controlled by or under common control with any such 5% Owner and who is not the spouse or descendant (by birth or adoption) of any such 5% Owner or a trust for the benefit of such 5% Owner and/or such other persons.

“Cause” shall mean one or more of the following: (A) any material breach of this letter agreement by you; (B) willful violation by you of any law, rule, regulation, which violation results, or could reasonably be expected to result, in material harm to the business or reputation of the Company; or (C) the conviction or commission of or the entry of a guilty plea or plea of no contest to any felony or to any other crime involving moral turpitude.

(b) No Mitigation. You shall not be obligated to seek new employment or take any other action to mitigate the benefits to which you are entitled hereunder.

10.Immigration Compliance. Your offer of employment is contingent upon you verifying your employment eligibility in accordance with the U.S. Immigration Reform Control Act of 1986.

11.Reimbursement. The Company will reimburse you for reasonable travel, entertainment and other business-related expenses you incur on behalf of the Company, that are consistent with the Company’s policies in effect from time to time regarding travel, entertainment and other business expenses, subject to the Company’s requirements regarding the reporting and documentation of such expenses. Such reimbursements shall be payable to you as soon as practicable, but in no event later than the last business day of the calendar year next following the calendar year in which the expenses were incurred.

12.Insurance. The Company will maintain you as an insured party on all directors’ and officers’ insurance that it maintains for the benefit of its directors and officers on at least the same basis as all other covered individuals. The Company shall not be obligated, however, to maintain directors’ and officers’ insurance.

13.Agreement. No failure or delay on the part of the Company or you in enforcing or exercising any right or remedy under this letter will operate as a waiver thereof. This letter agreement may not be amended or modified except by an express written agreement signed by you and an authorized representative of the Company. This letter agreement (along with the final form of any referenced document) represents the entire agreement between you and the Company, and no verbal or written agreement, promises or representations that were not specifically provided for in this letter agreement will be binding upon you or the Company.

We look forward to you joining our Company!

[SIGNATURE PAGE FOLLOWS]

On behalf of AdvancePierre Foods, Inc.
/s/ John N. Simons
Title	President and Chief Executive Officer

You hereby acknowledge and agree that the terms and conditions set forth above constitute the entire terms and conditions of your employment agreement with the Company.

Signed and Accepted by:	/s/ Tom Lavan
	Mr. Tom Lavan
	Date: 11/11/13

EX-10.15

Exhibit 10.15

RELEASE AND SEPARATION AGREEMENT

This Release and Separation Agreement (“Agreement”) is entered into by Thomas Lavan (“Employee”), and AdvancePierre Foods, Inc. (“Employer”).  In exchange for the payment provided herein, the mutual undertakings, and other good and valuable consideration, Employee desires to resolve all claims arising out of her employment with Employer and/or the termination of that employment.  Accordingly, the parties agree as follows:

1)Employee’s employment with Employer is being involuntarily terminated.  Employee’s last day of active employment with Employer shall be October 8, 2015 (the “Separation Date”).  Employee agrees that his employment with Employer shall end permanently on the Separation Date.

2)Subject to and in consideration of Employee’s execution (and non-revocation) of this Agreement and Employee’s compliance with the terms of this Agreement and the Non-Competition and Non-Solicitation Agreement (as set forth in Paragraph 5, below), Employer hereby agrees as follows:

a.Employer shall pay to Employee an aggregate amount of $275,000 (the “Severance Pay”), less applicable withholdings and deductions, which represents fifty-two (52) weeks of base salary (the “Severance Period”).  This amount is a special severance allowance.  This special severance allowance will be processed and paid in equal installments on regular Employer payroll dates commencing on the first regularly scheduled payroll date following the Effective Date (as defined in Paragraph 16, below) and mailed to Employee’s address of record (or directly deposited) during the applicable severance period.

b.Pierre Foods Holding Corporation (the “Purchaser”) will purchase, and Employee will sell, any and all equity interests issued pursuant to the Pierre Foods Holding Corporation 2009 Omnibus Equity Incentive Plan (the “Plan”), and held by Employee, his successors, beneficiaries or transferees, as applicable (which interests shall be referred to herein as the “Award”), consisting of 1) 3,500 Restricted Shares (as defined in the Plan) dated November 4, 2013, such shares to be 2/3 vested as of the Separation Date (vested shares equal 2,333), and 2) 3,500 Restricted Shares (as defined in the Plan) dated April 23, 2014, such shares to be 1/3 vested as of the Separation Date (vested shares equal 1,167). The total vested shares equal 3,500 (the “Shares”).  The Purchaser shall purchase the 3,500 Shares for an amount equal to $275 per Share, for total consideration of $962,500, which will be funded by AdvancePierre Foods after deduction for repayment of the Promissory Notes described in Section 3(c).  Employee acknowledges and agrees that, as of the Separation Date, the aggregate number of vested equity interests issued to Employee pursuant to the Award is 3,500 Restricted Shares, and that any other Restricted Shares or other equity interests issued pursuant to any other award(s) shall

have been, and hereby are, forfeited as of the Separation Date.  In the event that the Purchaser does not purchase its portion of the 3,500 vested Shares, Employee shall have the right to require Employer to purchase such Shares for an amount equal to $275 per Share.

c.Employee shall be responsible for the repayment of the Promissory Notes executed by Employee in favor of Employer in an amount proportionate to the vesting of his Shares as follows: (i) $61,770.90 representing 2/3 of the current outstanding unpaid principal and accrued but unpaid interest totaling $92,656.35 through the Separation Date relating to the Promissory Note dated November 4, 2013, having a face amount of $89,505.84, and (ii) $28,113.36 representing 1/3 of the current outstanding unpaid principal and accrued but unpaid interest totaling $84,340.08 through the Separation Date relating to the Promissory Note dated April 23, 2014, having a face amount of $82,197.50. The aggregate amount to be repaid is $89,884.26, to be deducted from the proceeds of the Award.  Employee acknowledges that the total amount of the Promissory Notes forgiven ($87,112.17) represents imputed income to Employee, and he will pay his portion of the payroll taxes thereon.

d.Employee shall receive $100,000, less withholding and deductions, as consideration for his Management Incentive Plan award for 2015.  Such payment shall be made concurrent with the final payment of the special severance allowance provided that Employee has met all his obligations under the terms of this Agreement.

3)Employee acknowledges that the consideration provided under this Paragraph 2 is consideration to which he would not be entitled but for the existence of this Agreement.  The payments provided under subparagraph (b) and (c) of this Paragraph 2 shall be payable within ten (10) days after the later of the Effective Date and Separation Date.

4)Employee acknowledges and agrees that Employees obligations under his previously signed Confidentiality Agreement on April 6, 2015 remains intact and enforceable against Employee, and Employee hereby reaffirms and agrees that he will comply with all such obligations therein in accordance with the terms thereof.

5)In exchange for the Special Severance consideration outlined in this Agreement, Employee also agrees to Non-Compete and Non-Interference provisions as follows:

a.Non-Competition.  During the Severance Period, Employee will not, without the prior written consent of the Company, directly or indirectly, become employed by, own, manage, operate, control, or participate in or be connected with as an officer, shareholder, employee, representative, broker, agent, salesman, partner, distributor, consultant or otherwise, any business that competes with the Company with respect to fully cooked

2

proteins or hand held sandwiches, nor shall Employee engage in any activity for the purpose of (1) soliciting or selling to any current or potential customer of the Company any product or products which compete with the Company’s products, or (2) diverting or taking away any customer of the Company.

b.Non-Interference.  During the Severance Period, Employee will not, without the prior written consent of the Company, directly or indirectly, solicit, entice, persuade or induce (i) any person or entity which has a business relationship with the Company to direct or transfer away any business, patronage or source of supply from the Company or (ii) any person to leave the employment of the Company.

6)Remedies.  Employee acknowledges and agrees the restrictions contained in this Agreement are reasonable and necessary for the protection of the goodwill and business of the Company and that observance of these covenants will not cause Employee any undue hardship nor will it unreasonably interfere with her ability to earn a livelihood.  Employee acknowledges and agrees that any breach or threatened breach of this Agreement by Employee will cause irreparable injury to the Company for which money damages alone would not provide an adequate remedy; that if he commits or threatens to commit any such breach, the Company should have the right to have the provisions of this Agreement specifically enforced by any court having jurisdiction, and Employee will not assert in any such enforcement action that the Company has an adequate remedy in damages; and that such rights and remedies will be in addition to and not in lieu of any other rights or remedies available to the Company at law or in equity. Employee also acknowledges and agrees that if he commits or threatens to commit any breach of this Agreement, he forfeits all rights under and with respect to any continued Severance Pay for the duration of the Severance Period.  He further agrees that if any court determines that he has breached this Agreement, he will be liable to and will pay the Company its reasonable legal fees incurred in connection with such proceeding, including appeals therefrom.

7)If Employee was enrolled by Employer’s health care coverage prior to the termination of Employee’s employment with Employer, and the Employee elects to obtain COBRA coverage, Employer shall pay the full cost of COBRA coverage for the first eight (8) weeks following Employee’s Separation Date.  Employee understands and agrees that Employee is responsible for submitting paperwork to obtain COBRA health care contribution benefits and that failure to submit such paperwork will result in the employee not receiving any COBRA benefits (whether paid for by the Employee or Employer).  Employee further understands that Employee is solely responsible for paying for COBRA benefits after the eight (8) week period has expired.  All other Employer-provided benefits shall cease as of the Separation Date.

8)In addition to the above monetary payments described in this Agreement, Employee will also receive earned but unused vacation consistent with current

3

policy that will be paid in a lump sum in Employee’s final regular paycheck (which will be paid with or without signing this agreement).

9)Employee will receive three months of career transition service, paid by the Employer, through a provider chosen by Employer.  Such service must commence within 30 days of the Effective Date.

10)Employee releases, holds harmless, and covenants not to sue or bring against Employer any Claims (as defined below) in connection with any matter relating to, connected with, or arising out of his employment by Employer or the termination of that employment.  References to Employer throughout this Paragraph include its parent, subsidiaries, predecessors, successors, affiliates, officers, stockholders, owners, employees and agents.  “Claim” includes any and all rights, obligations, promises, agreements, debts, losses, controversies, claims, causes of action, liabilities, damages, and expenses, including without limitation attorneys’ fees and costs, of any nature whatsoever, whether known or unknown, asserted or unasserted, which Employee ever had, now has, or hereafter may have against Employer that arose at any time before or upon his signing this Agreement.  Specifically, but without limitation, Employee agrees that he/he will not bring any action against Employer for personal monetary relief based on any claim of denial of equal employment opportunity or discrimination in violation of any statute or regulation governing employment practices, including but not limited to the Age Discrimination in Employment Act, as amended.  Further, also without limitation, Employee agrees that he/he will not bring any action or other claim against Employer based on any theory of wrongful termination, intentional or negligent infliction of mental distress or other tort, breach of express or implied contract, or promissory estoppel.  Employee further specifically releases and waives any rights or obligations created pursuant to any employment agreement between Employer and Employee, which agreement and the obligations thereunder are hereby cancelled.

a.Notwithstanding the above, Employee is not prohibited from filing an administrative charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”), or any state or local fair employment practices agency, or otherwise participating in investigations or hearings held by the EEOC or such agency.  However, in the event Employee files such a charge, he/he understands that he will not be entitled to recover any personal relief or remuneration from Employer, including any damages, back pay, front pay, reinstatement or attorneys’ fees.

11)Employer shall not oppose the payment of unemployment compensation benefits to Employee and shall certify that he is entitled to receive such benefits upon inquiry from the relevant state agency.

12)Neither Employer nor Employee shall make any statements to third parties which are disparaging, derogatory or negative about one another.

4

13)Employee agrees to return immediately to Employer and shall not take, copy, use or reveal to any third person in any form or manner, any documents or information which Employer deems confidential or proprietary, including but not limited to, lists of past or current customers or potential customers, product information and/or specifications, pricing information, sales or marketing information, formulas, financial information, business or strategic plans, and other similar confidential materials or information. Employee will immediately return to Employer any computer in her possession, together with all documents, reports, files, memoranda, records, electronically stored data, keys, cards, computer access codes, software, passwords, or other physical or personal property which Employee has received or prepared in connection with his employment.  Employee represents that he has not retained and will not retain any copies, duplicates, reproductions or excerpts thereof.

14)This Agreement shall be considered confidential and shall not be disclosed to any person except those requiring knowledge for implementation of its terms, and Employee’s attorney, tax or financial advisor or spouse.  Improper disclosure shall be considered a material breach of its terms.

15)Employee recognizes that the release and waiver provisions of this Agreement may surrender valuable legal rights.  He acknowledges full awareness of the extinguishment of such rights in exchange for the consideration provided under this Agreement.  Employee also agrees that this Agreement sets forth the entire agreement between the parties relating to the subject matter of this Agreement, and fully supersedes any prior agreements or understandings between the parties except as specifically noted herein.  Employee has been advised by Employer to consult an attorney with respect to this Agreement prior to its execution and acknowledges that he has been given 21 days from initial presentation and discussion of this Agreement in order to review and consider the Agreement and to consult an attorney if he so chooses.  To the extent that Employee takes fewer than 21 days to consider this Agreement prior to signing it, Employee shall acknowledge by signing the attachment entitled “Waiver of 21-Day Review Period” that he had sufficient time to consider this Agreement with counsel and that he expressly, voluntarily and knowingly waives any additional time.

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16)This Agreement shall be binding upon Employer as of the date of its execution, and shall be governed by and interpreted in accordance with the laws of the State of Ohio.  Employee, at his sole election and option, shall be entitled to revoke and withdraw from this Agreement without further obligation upon written notice to Employer presented at any time prior to the expiration of seven (7) calendar days from the date that Employee executes this Agreement that he desires to exercise this option to revoke and that this Agreement shall not become effective or enforceable until such seven-day period has expired without revocation (the “Effective Date”).  Employee acknowledges that if he exercises the option to revoke, then he will not be entitled to any benefits under this Agreement.  Upon the expiration of that seven-day option period, however, this Agreement shall be irrevocable.

Advance Pierre Foods, Inc.		Employee
By:	/s/ Michael B. Sims	/s/ Thomas Lavan
	Chief Financial Officer	Thomas Lavan
Date:	10/20/2015	Date:	10/20/2015

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RECEIPT OF RELEASE AND SEPARATION AGREEMENT

I acknowledge that I received today a copy of the Release and Separation Agreement.  I have been advised of the following:

1.That I have 21 days from October 8, 2015, to consider the Agreement (the “Agreement”).

2.I have the opportunity to discuss with a representative of AdvancePierre Foods, Inc. any questions or concerns I may have over the terms or language of the Agreement.

3.I have been advised to consult an attorney of my choosing to review the Agreement.

4.I should not sign the Agreement unless I fully understand its terms and enter into the Agreement of my own free will.

5.I have seven (7) days after signing the Agreement to revoke the Agreement.

6.No other promises have been made to me beyond the terms of the Agreement.

Date of Execution:	10/8/2015	/s/ Thomas Lavan
		Thomas Lavan

(Associate signature only acknowledges receipt of the Agreement, including the related Notice and Waiver of 21-day Review Period.)

WAIVER OF 21-DAY REVIEW PERIOD

I acknowledge that I was provided with a copy of the Release and Separation Agreement (the “Agreement”) on October 8, 2015, and understand I have 21 days (until October 29, 2015) from this date to consider and sign the Agreement.  I have had an opportunity to review the Agreement, have been afforded the opportunity to have it reviewed by an attorney of my choosing, and have made the decision to execute the Agreement prior to the expiration of the twenty-one day review period.  Therefore, I have executed the Agreement today, and I understand that I have seven (7) days from today to revoke the Agreement.  Terms of the Agreement will begin no earlier than the eighth (8th) day after execution of this Agreement.

Date of Execution: 10/20/2015	/s/ Thomas Lavan
	Thomas Lavan

BENEFITS INFORMATION FOR EXITING ASSOCIATES

Medical, Dental and Vision Insurance: Ends on your resignation/termination date.  A “Certificate of Credible Coverage” will automatically be mailed to you from UMR to use for your next employer’s insurance.  Contact Customer Service at (800) 826-9781 or visit www.myumr.com.

COBRA: You may continue medical, dental, and vision benefits under a provision referred to as COBRA.  Information will be sent to you at your home address by the COBRA administrator (UMR), following notification by AdvancePierre Foods.  COBRA information is sent by certified mail to the associate’s home address.  If not at home, you will need to sign for it at the post office.  You have 60 days from the date of your COBRA notice to elect the coverage and 45 days from the election date to pay the premium(s).  Exiting associates and eligible dependents are eligible for 18 months of COBRA and must pay 100% of the premium plus a 2% administrative fee.  Coverage under COBRA will be effective retroactive to the employment termination date once payment is received provided the appropriate premiums are paid.  COBRA rates may change from year to year.  Contact Customer Service at (800) 207-1824.

Flex Spending Account (FSA): You have 30 days from your date of termination to submit eligible expenses to UMR for reimbursement.  The medical flex account may be COBRA eligible.  If applicable, you will receive COBRA information directly from UMR.  The dependent care flex account is not COBRA eligible.  Contact Customer Service at (800) 826¬9781.

Company Paid Group Life Insurance, Optional Life Coverage and Associate Paid Long Term Disability: These are portable or convertible (meaning you can continue on with the benefits after your termination.)  Please contact Sun Life at (800)247-6875 within 30 days of termination for additional information.

Company Provided Group Short Term Disability: There is no option to continue this benefit following termination.

Garnishments/Tax Levy/Child Support: Deductions continue with severance payroll.

401(k) Accounts:  Upon resignation/termination you may request a distribution of your account balance from your 401k account.  There are several options available and it is important for you to understand your options and the tax implications of each.  When you are ready to request your distribution, contact Milliman at (866) 767-1212 or visit their website at www.MillimanBenefits.com.  The distribution is paperless, quick and easy and if you need help, representatives are available to assist you.

Options include:

·Cash payout of your account directly to you with a 20% federal tax withhold and state tax withholding (if applicable).  (Note: If you are not 59 1/2 or older, a 10% penalty tax can be accessed on the distribution.  Please consult your tax advisor).  If you are age 59 1/2 or older at the time of distribution, the 10% penalty does not apply.

·Rollover of your account to another qualified employer 401(k) plan or IRA

·Keep your money in the plan until you retire if the balance is over $5,000.

·If your balance is less than $5,000 and you do not make an election to have your account distributed directly to you, to an IRA, or to an eligible retirement plan, the following actions will occur within an administratively reasonable period of time following your termination:

·  If you have at least $1,000, but less than $5,000, your account balance will automatically rollover to an IRA and you will receive further information on the account.

·  If you have less than $1,000 in your account balance, you will receive a check in the mail less 20% for federal withholding and state tax withholding (if applicable).

EX-10.18

Exhibit 10.18

AMENDMENT NO. 2 TO THE PIERREFOODS HOLDING CORPORATION

2009 OMNIBUS EQUITY INCENTIVE PLAN

This amendment (the “Amendment”) to the Pierre Foods Holding Corporation 2009 Omnibus Equity Incentive Plan (the “Plan”), is made and entered into effective as of [               ], 2016. Capitalized terms used and not otherwise defined herein shall have the meanings ascribed to such terms in the Plan.

RECITALS

WHEREAS, the Board of Directors of AdvancePierre Foods Holdings, Inc. (the “Company”) desires to amend the Plan in accordance with the authority granted by the Plan’s terms;

NOW, THEREFORE, the Plan shall be amended as follows:

1.Section 4(a) of the Plan, as amended, shall be deleted and replaced with the following sentence:

Subject to Section 5 hereof, the maximum number of Shares that may be delivered pursuant to Awards granted under the Plan (the “Share Limit”) shall be 16,562,730, and the maximum number of Shares which may be issued pursuant to Options which are intended to be incentive stock options under Section 422 of the Code shall be 16,562,730, in each case subject to adjustment as provided herein; provided, however, that notwithstanding any provision in the Plan to the contrary, and subject to Sections 5 and 15, the maximum number of Shares with respect to one or more Awards that may be granted to any one Participant during any fiscal year of the Company (measured from the date of any grant) shall be 8,281,365 Shares; provided, further, that the foregoing limitation shall not apply prior to the first date upon which Shares are listed (or approved for listing) upon notice of issuance on any securities exchange or designated (or approved for designation) upon notice of issuance as a national market security on an interdealer quotation system (the “Public Trading Date”) and, following the Public Trading Date, the foregoing limitation shall not apply until the earliest of: (i) the first material modification of the Plan (including any increase in the number of Shares reserved for issuance under the Plan in accordance with this Section 4(a)); (ii) the issuance of all of the Shares reserved for issuance under the Plan; (iii) the expiration of the Plan; (iv) the first meeting of stockholders at which members of the Board are to be elected that occurs after the close of the third calendar year following the calendar year in which occurred the first registration of an equity security of the Company under Section 12 of the Exchange Act; or (v) such other date required by Section 162(m) of the Code and the rules and regulations promulgated thereunder.

2.Section 4(c) is hereby added to the Plan, to read in its entirety as follows:

Notwithstanding any other provision of the Plan to the contrary, the aggregate grant date fair value (computed as of the date of grant in accordance with applicable financial accounting rules) of all Awards granted to any Non-Employee Director of the Company or any Affiliate during any single calendar year, taken together with any cash fees paid to such person during such calendar year, shall not exceed $700,000.

3.Except as specifically amended by this Amendment, the Plan shall remain in full force and effect.

[Remainder of Page Intentionally Left Blank]

IN WITNESS WHEREOF, the Company has caused this Amendment to be executed as of the date first above written.

ADVANCEPIERRE FOODS HOLDINGS, INC.

By:

Name:

Title:

EX-10.19

Exhibit 10.19

PIERRE FOODS HOLDING CORPORATION

2009 OMNIBUS EQUITY INCENTIVE PLAN

RESTRICTED STOCK AWARD AGREEMENT

THIS RESTRICTED STOCK AWARD AGREEMENT (this “Award Agreement”) is made and entered into by and between Pierre Foods Holding Corporation, a Delaware corporation (the “Company”), and         (the “Holder”).  Where the context permits, references to the Company or any of its Subsidiaries or Affiliates shall include the successors to the foregoing.

W I T N E S S E T H

WHEREAS, pursuant to the Pierre Foods Holding Corporation 2009 Omnibus Equity Incentive Plan, as attached hereto as Exhibit A (the “Plan”), the Company hereby grants to the Holder, effective as of the date hereof, a restricted stock award (the “Award”), subject to the terms and conditions set forth herein and in the Plan.

NOW THEREFORE, in consideration of services rendered and to be rendered by the Holder, and the mutual promises made herein and the mutual benefits to be derived therefrom, the parties agree as follows:

1.     Defined Terms.  Capitalized terms used herein and not otherwise defined herein shall have the meaning assigned to such terms in the Plan.

2.     Grant.  Subject to the terms of this Award Agreement, the Company hereby grants to the Holder an Award with respect to an aggregate of         Restricted Shares of Common Stock of the Company (the “Restricted Stock”), subject to adjustment under Section 5 of the Plan.

3.     Vesting.          of the Restricted Shares shall become vested on each of the first         anniversaries of the Grant Date.

4.     Continuance of Employment.  The vesting schedule requires continued employment or service through each applicable vesting date as a condition to the vesting of the applicable installment of the Award and the rights and benefits under this Award Agreement.  Employment or service for only a portion of the Restricted Period (as defined in Section 9(c)(1) of the Plan), even if a substantial portion, will not entitle the Holder to any proportionate vesting or avoid or mitigate a termination of rights and benefits upon or following a termination of employment or services as provided in Paragraph 8 below and under the Plan.

Nothing contained in this Award Agreement or the Plan constitutes an employment or service commitment by the Company, affects the Holder’s status as an employee at will who is subject to termination without Cause (as defined in Section 2(f) of the Plan), confers upon the Holder any right to remain employed by or in service to the Company or any of its Subsidiaries, interferes in any way with the right of the Company or any of its Subsidiaries at any time to terminate such employment or services, or affects the right of the Company or any of its Subsidiaries to increase or decrease the Holder’s other compensation or benefits.  Nothing in this paragraph, however, is intended to adversely affect any independent contractual right of the

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Holder without his or her consent thereto.

5.     Dividend Rights.  The Holder shall be entitled to cash dividends subject to the Award only if and to the extent that such Shares became vested, provided that such rights shall terminate immediately as to any shares of Restricted Stock that are forfeited pursuant to Paragraph 8 below.

6.     Stockholders’ Agreement Restrictions on Transfer.  The Holder, by acceptance of the Award, shall be deemed to have agreed to become a party to the Second Amended and Restated Stockholders’ Agreement, dated as of September 30. 2010 (as may be amended from time to time, the “Stockholders’ Agreement”).  Subject to the terms of the Stockholders’ Agreement, prior to the time that they have become vested pursuant to Paragraph 3 hereof, neither the Restricted Stock, nor any interest therein or amount payable in respect thereof, may be sold, assigned, transferred, hypothecated, pledged, exchanged, charged or otherwise disposed of, alienated or encumbered, either voluntarily or involuntarily.  The Stockholders’ Agreement also contains other transfer restrictions.  Subject to the terms of the Stockholders’ Agreement, the transfer restrictions in the preceding sentence shall not apply to (a) transfers to the Company, or (b) transfers by will or the laws of descent and distribution.

7.     Stock Certificates.

(a)           Certificates.  The Holder shall not have any rights with respect to any Award, unless and until the Holder has executed this Award Agreement and delivered a fully executed copy thereof to the Company, within a period of sixty days (or such other period as the Administrator may specify) after the award date.  Restricted Stock, when issued, will be represented by a stock certificate or certificates registered in the name of the Holder to whom such Restricted Stock shall have been awarded (or such other appropriate evidence of ownership as determined by the Administrator).  During the Restricted Period, certificates representing the Restricted Stock, if appropriate, shall bear a legend to the effect that ownership of the Restricted Stock and the enjoyment of all rights appurtenant thereto are subject to the restrictions, terms and conditions provided in the Plan and the Award Agreement.  The Company may require that the share certificates evidencing Restricted Shares be held in the custody of the Company until the restrictions thereon shall have lapsed.

(b)           Delivery of Certificates Upon Vesting.  Promptly after the vesting of any shares of Restricted Stock pursuant to Paragraph 3 hereof and the satisfaction of any and all related tax withholding obligations pursuant to Paragraph 10, the Company shall deliver to the Holder a certificate or certificates evidencing the number of shares of Restricted Stock which have vested (or such lesser number of shares as may result after giving effect to Paragraph 10).  The Holder (or the beneficiary or personal representative of the Holder in the event of the Holder’s death or Disability, as the case may be) shall deliver to the Company any representations or other documents or assurances as the Company or its counsel may determine to be necessary or advisable in order to ensure compliance with all applicable laws, rules, and regulations with respect to the grant of the Award and the delivery of shares of Common Stock in respect thereof.  The Shares so delivered shall no longer be Restricted Shares hereunder.

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(c)           Stock Power; Power of Attorney. Concurrently with the delivery of the stock certificates, the Holder shall deliver to the Company an executed stock power in the form attached hereto as Exhibit B, in blank, with respect to such shares, which will permit transfer to the Company of all or any portion of the Restricted Stock that shall be forfeited or that shall not become vested in accordance with the Plan and the Award Agreement.  The Company shall not deliver any share certificates in accordance with this Award Agreement unless and until the Company shall have received such stock power executed by the Holder.  The Holder, by acceptance of the Award, shall be deemed to appoint, and does so appoint by execution of this Award Agreement, the Company and each of its authorized representatives as the Holder’s attorney(s)-in-fact to effect any transfer of unvested forfeited shares (or shares otherwise reacquired by the Company hereunder) to the Company as may be required pursuant to the Plan or this Award Agreement and to execute such documents as the Company or such representatives deem necessary or advisable in connection with any such transfer.

8.     Effect of Termination of Employment or Services.

(a)   If the Holder ceases to be employed by or ceases to provide services to the Company or a Subsidiary (the date of such termination of employment or service is referred to as the Holder’s “Severance Date”), the Holder’s shares of Restricted Stock shall be forfeited to the Company to the extent such shares have not become vested pursuant to Paragraph 3 hereof upon the Severance Date (regardless of the reason for such termination of employment or service, whether with or without Cause, voluntarily or involuntarily, or due to death or Disability).  Upon the occurrence of any forfeiture of shares of Restricted Stock hereunder, such unvested, forfeited shares shall be automatically transferred to the Company as of the Severance Date, without any other action by the Holder (or the Holder’s beneficiary or personal representative in the event of the Holder’s death or Disability, as applicable).  No consideration shall be paid by the Company with respect to such transfer.  The Company may exercise its powers under Paragraph 7(c) hereof and take any other action necessary or advisable to evidence such transfer.  The Holder (or the Holder’s beneficiary or personal representative in the event of the Holder’s death or Disability, as applicable) shall deliver any additional documents of transfer that the Company may request to confirm the transfer of such unvested, forfeited shares to the Company.

(b)   Following the termination of the Holder’s employment with or service to the Company or any of its Affiliates for any reason, the Company shall have the rights set forth in Exhibit D attached hereto with respect to any Shares obtained by Holder pursuant to the Award Agreement, including any such Shares held by the Holder’s estate, successors, beneficiaries or transferees, as applicable.  However, the purchase price for such Shares as set forth in Exhibit D shall be reduced by the amount of the balance of any outstanding loan to the Holder from the Company.

9.     Adjustments.  Upon the occurrence of a Change in Capitalization as contemplated by Section 5 of the Plan, the Administrator shall make adjustments in accordance with such section in the number and kind of securities that may become vested under the Award or in the terms of any Award.  Any such adjustments will be made by the Administrator, whose determination will be final, binding and conclusive.

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10.  Tax Withholding.  Subject to Section 13 of the Plan, upon any vesting of the Restricted Stock or, if the Holder makes an election under Section 83(b) of the Code in connection with such grant, the Holder shall, no later than the date as of which the value of an Award first becomes includible in the gross income of the Holder for federal and/or state income tax purposes, pay to the Company, or make arrangements satisfactory to the Administrator regarding payment of, any federal, state, or local taxes of any kind required by law to be withheld with respect to the Award.  The Holder shall promptly notify the Company of any election made pursuant to Section 83(b) of the Code.  (A form of such election is attached hereto as Exhibit C.)  With the approval of the Administrator, a Holder may satisfy the foregoing requirement by electing to have the Company withhold from delivery of Shares or by delivering already owned unrestricted Shares, in each case, having a value equal to the minimum amount of tax required to be withheld.  Such Shares shall be valued at their Fair Market Value on the date of which the amount of tax to be withheld is determined.  Fractional share amounts shall be settled in cash.  Such an election may be made with respect to all or any portion of the Shares to be delivered pursuant to an award.  The Company may also use any other method of obtaining the necessary payment or proceeds, as permitted by law, to satisfy its withholding obligation with respect to any Award.

11.  Notice.  Any notice to be given under the terms of this Award Agreement shall be in writing and addressed to the Company at its principal office to the attention of the Secretary, and to the Holder at the Holder’s last address reflected on the Company’s payroll records.  Any notice shall be delivered in person or shall be enclosed in a properly sealed envelope, addressed as aforesaid, registered or certified, and deposited (postage and registry or certification fee prepaid) in a post office or branch post office regularly maintained by the United States Government.  Any such notice shall be deemed to have been duly given on the date which it is personally delivered or, whether actually received or not, on the third business day after mailing in accordance with the foregoing provisions of this Paragraph 11.

12.  Incorporation of the Plan.  The Plan, as it exists on the date of this Award Agreement and as amended from time to time, is hereby incorporated by reference and made a part hereof, and the Restricted Stock and this Award Agreement shall be subject to all terms and conditions of the Plan.  In the event of any conflict between the provisions of this Award Agreement and the provisions of the Plan, the terms of the Plan shall control, except as expressly stated otherwise.  The Holder acknowledges having read and understood the Plan and this Award Agreement.  Unless otherwise expressly provided in other paragraphs of this Award Agreement, provisions of the Plan that confer discretionary authority on the Board or the Administrator do not (and shall not be deemed to) create any rights in the Holder unless such rights are expressly set forth herein or are otherwise in the sole discretion of the Board or the Administrator so conferred by appropriate action of the Board or the Administrator under the Plan after the date hereof.  The term “Section” generally refers to provisions within the Plan; provided, however, the term “Paragraph” shall refer to a provision of this Award Agreement.

13.  Entire Agreement.  This Award Agreement and the Plan together constitute the entire agreement and supersede all prior understandings and agreements, written or oral, of the parties hereto with respect to the subject matter hereof.  The Plan may be amended pursuant to Section 11 of the Plan.  This Award Agreement may be amended by the Board from time to time.  Any such amendment must be in writing and signed by the Company.  Any such amendment that

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materially and adversely affects the Holder’s rights under this Award Agreement requires the consent of the Holder in order to be effective with respect to the Award.  The Company may, however, unilaterally waive any provision hereof in writing to the extent such waiver does not adversely affect the interests of the Holder hereunder, but no such waiver shall operate as or be construed to be a subsequent waiver of the same provision or a waiver of any other provision hereof.

14.  Counterparts.  This Award Agreement may be executed simultaneously in any number of counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.

15.  Section Headings.  The section headings of this Award Agreement are for convenience of reference only and shall not be deemed to alter or affect any provision hereof.

16.  Failure to Enforce Not a Waiver.  The failure of the Company to enforce at any time any provision of the Award Agreement shall in no way be construed to be a waiver of such provision or of any other provision hereof.

17.  Governing Law.  This Award Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware without regard to conflict of law principles thereunder.

18.  Authority of the Administrator.  The Administrator shall have full authority to interpret and construe the terms of the Plan and this Award Agreement.  The determination of the Administrator as to any such matter of interpretation or construction shall be final, binding and conclusive.

19.  Binding Effect.  The Award Agreement shall apply to and bind the Holder and the Company and their respective permitted assignees or transferees, heirs, legatees, executors, administrators and legal successors.

20.  Tax Representation.  The Holder is advised to review with his or her own tax advisors the Federal, state, local and foreign tax consequences of the transactions contemplated by this Award Agreement.  The Holder is relying solely on such advisors and is not relying in any part on any statement or representation of the Company or any of its agents.  The Holder understands that he or she (and not the Company) shall be responsible for any tax liability that may arise as a result of the transactions contemplated by this Award Agreement.

21.  Acceptance.  The Holder hereby acknowledges receipt of a copy of the Plan and this Award Agreement.  Holder has read and understands the terms and provisions thereof, and accepts the Restricted Stock subject to all the terms and conditions of the Plan and the Award Agreement.

[SIGNATURE PAGE FOLLOWS]

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IN WITNESS WHEREOF, the parties hereto have executed and delivered the Award Agreement on the day and year first written below.

PIERRE FOODS HOLDING CORPORATION

By:

Print Name:

Title:

HOLDER

Signature:

Print Name:

Address:

Telephone No.:

Social Security No.:

Date:

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CONSENT OF SPOUSE

In consideration of the execution of the foregoing Restricted Stock Award Agreement by Pierre Foods Holding Corporation, I,                              , the spouse of the Holder therein named, do hereby join with my spouse in executing the foregoing Restricted Stock Award Agreement and do hereby agree to be bound by all of the terms and provisions thereof and of the Plan.

Dated:
	Signature of Spouse
	Print Name

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EXHIBIT A

2009 Omnibus Equity Incentive Plan

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PIERRE FOODS HOLDING CORPORATION

2009 OMNIBUS EQUITY INCENTIVE PLAN

Section 1. Purpose of Plan.

The name of this plan is the Pierre Foods Holding Corporation 2009 Omnibus Equity Incentive Plan. The Plan was adopted by the Board (as hereinafter defined) on January 15, 2009 and approved by the stockholders of the Company (as hereinafter defined) on January 15, 2009. The purpose of the Plan is to provide additional incentive to selected employees, directors and Consultants (as hereinafter defined) of the Company, its Subsidiaries or Affiliates (as hereinafter defined) whose contributions are essential to the growth and success of the Company’s business, in order to strengthen the commitment of such persons to the Company and its Subsidiaries and Affiliates, motivate such persons to faithfully and diligently perform their responsibilities and attract and retain competent and dedicated persons whose efforts shall result in the long-term growth and profitability of the Company. To accomplish such purposes, the Plan provides that the Company may grant (a) Options, (b) Share Appreciation Rights, (c) awards of Restricted Shares, Deferred Shares, Performance Shares, unrestricted Shares or Other Share-Based Awards, or (d) any combination of the foregoing. Notwithstanding any provision of the Plan, to the extent that any Award would be subject to Section 409A of the Code, it is our intent that each such Award comply with the requirements set forth in Section 409A of the Code and any regulations or guidance promulgated thereunder.

Section 2. Definitions.

For purposes of the Plan, the following terms shall be defined as set forth below:

(a)“Administrator” means the Board or, if and to the extent the Board does not administer the Plan, the Committee in accordance with Section 3 hereof.

(b)“Affiliate” means, with respect to any Person, any other Person that directly or indirectly through one or more intermediaries controls, is controlled by or is under common control with the Person in question. As used herein, the term “Control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract or otherwise.

(c)“Award” means individually or collectively, any Option, Share Appreciation Right, Restricted Share, Deferred Share, Performance Share, unrestricted Share or Other Share-Based Award granted under the Plan.

(d)“Award Agreement” means any written agreement, contract or other instrument or document evidencing an Award.

(e)“Board” means the Board of Directors of the Company.

(f)Except as otherwise defined in the Participant’s employment agreement, if any, “Cause” means (i) the commission of an act of fraud or dishonesty by the

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Participant in the course of the Participant’s employment; (ii) the indictment or entering of a plea of nolo contendere for a crime constituting a felony or in respect of any act of fraud or dishonesty; (iii) the commission of an act by the Participant which would make the Participant or the Company (including any of its Subsidiaries or Affiliates) subject to being enjoined, suspended, barred or otherwise disciplined for violation of federal or state securities laws, rules or regulations, including a statutory disqualification; (iv) gross negligence or willful misconduct in connection with the Participant’s performance of his or her duties in the course of the Participant’s employment by the Company (including any Subsidiary or Affiliate for whom the Participant may be employed on a full-time basis at the time) or the Participant’s failure to comply with any of the restrictive covenants set forth herein; (v) the Participant’s willful failure to comply with any material policies or procedures of the Company as in effect from time to time provided that the Participant shall have been delivered a copy of such policies or notice that they have been posted on a Company website prior to such compliance failure; and (vi) the Participant’s failure to perform the material duties in connection with the Participant’s position, unless the Participant remedies such failure no later than 10 days following delivery to the Participant of a written notice from the Company (including any of its Subsidiaries or Affiliates) describing such failure in reasonable detail (provided that the Participant shall not be given more than one opportunity in the aggregate to remedy failures described in this clause (vi)).

(g)“Change in Capitalization” means any (i) merger, consolidation, reclassification, recapitalization, spin-off, spin-out, repurchase or other reorganization or corporate transaction or event, (ii) distribution (whether in the form of cash, Shares, or other property), share split or reverse share split, (iii) combination or exchange of shares, (iv) other change in structure or (v) declaration of a distribution, which the Administrator determines, in its sole discretion, affects the Shares such that an adjustment pursuant to Section 5 hereof is appropriate.

(h)“Code” means the Internal Revenue Code of 1986, as amended and in effect from time to time. Any reference herein to a specific section or sections of the Code shall be deemed to include a reference to any corresponding provision of any successor law.

(i)“Committee” means any committee or subcommittee the Board may appoint to administer the Plan. Subject to the sole discretion of the Board, the Committee shall be composed entirely of individuals who meet the qualifications of an “outside director” within the meaning of Section 162(m) of the Code, a “non-employee director” within the meaning of Rule 16b-3 under the Exchange Act and any other qualifications required by the applicable stock exchange on which the Shares are traded. If at any time or to any extent the Board shall not administer the Plan, then the functions of the Administrator specified in the Plan shall be exercised by the Committee.

(j)“Company” means Pierre Foods Holding Corporation, incorporated under the laws of Delaware, and any successors thereto.

(k)“Consultant” means a consultant or advisor who is a natural person, engaged to render bona fide services to the Company or any Subsidiary or Affiliate.

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(l)“Deferred Shares” means the right to receive Shares at the end of a specified deferral period granted pursuant to Section 9 below.

(m)Except as otherwise defined in the Participant’s employment agreement, if any, “Disability” means that a Participant (i) as determined by the Administrator in its sole discretion, is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, or (ii) is, by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, receiving income replacement benefits for a period of not less than 3 months under an accident and health plan covering employees of the Company or an Affiliate of the Company.

(n)“Eligible Recipient” means an employee, director or Consultant of the Company, any Subsidiary or Affiliate who has been selected as an eligible Participant by the Administrator.

(o)“Exchange Act” means the Securities Exchange Act of 1934, as amended, supplemented or restated from time to time and any successor to such statute, and the rules and regulations promulgated thereunder.

(p)“Exercise Price” means the per share price at which a holder of an award granted hereunder may purchase the Shares issuable upon exercise of such award.

(q)“Fair Market Value” as of a particular date shall mean the fair market value as determined by the Administrator in its sole discretion; provided, however, (i) if the Share or other security is admitted to trading on a national securities exchange, the fair market value on any date shall be the closing sale price reported on such date, or (ii) if the Share or other security is then traded in an over-the-counter market, the fair market value on any date shall be the average of the closing bid and asked prices for such share in such over-the-counter market for the last preceding date on which there was a sale of such share in such market.

(r)“Non-Employee Director” means a director of the Company who is (i) not an officer or employee of the Company or of any Subsidiary and (ii) otherwise meets the definition of a Non-Employee Director for purposes of Rule 16b-3 of the Exchange Act.

(s)“Nonqualified Stock Option” means an option to purchase Shares that is not intended to be an incentive stock option and therefore is not intended to meet the requirements of Section 422 of the Code.

(t)“Option” means an option to purchase Shares granted pursuant to Section 7 hereof.

(u)“Other Share-Based Awards” means a right or other interest granted to a Participant under the Plan that may be denominated or payable in, valued in whole or in part by reference to, or otherwise based on or related to, Shares, including but not limited to restricted share units, distribution equivalent rights, LTIP Units or performance units, each of

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which may be subject to the attainment of Performance Goals or a period of continued employment or other terms or conditions as permitted under the Plan.

(v)“Participant” means (i) any Eligible Recipient selected by the Administrator, pursuant to the Administrator’s authority in Section 3 below, to receive grants of Options, Share Appreciation Rights, awards of Restricted Shares, awards of unrestricted Shares, Deferred Shares, Performance Shares, Other Share-Based Awards or any combination of the foregoing, and upon his or her death, his or her successors, heirs, executors and administrators, as the case may be and (ii) any Non-Employee Director who is eligible to receive Shares or Options.

(w)“Participating Subsidiary or Affiliate” means any Subsidiary or Affiliate that has adopted the Plan.

(x)“Performance Goals” means performance goals based on one or more of the following criteria: (i) earnings including operating income, earnings before or after taxes, earnings before or after interest, depreciation, amortization, or extraordinary or special items or book value per share (which may exclude nonrecurring items); (ii) pre-tax income or after-tax income; (iii) earnings per share (basic or diluted); (iv) operating profit; (v) distributable earnings; (vi) revenue, revenue growth or rate of revenue growth; (vii) return on assets (gross or net), return on investment, return on capital, or return on equity; (vii) returns on sales or revenues; (ix) operating expenses; (x) share price appreciation; (xi) cash flow, free cash flow, cash flow return on investment (discounted or otherwise), net cash provided by operations, or cash flow in excess of cost of capital; (xii) implementation or completion of critical projects or processes; (xiii) economic value created; (xiv) cumulative earnings per share growth; (xv) operating margin or profit margin; (xvi) share price or total shareholder return; (xvii) cost targets, reductions and savings, productivity and efficiencies; (xviii) strategic business criteria, consisting of one or more objectives based on meeting specified market penetration, geographic business expansion, investor satisfaction, employee satisfaction, human resources management, supervision of litigation, information technology, and goals relating to acquisitions, divestitures, joint ventures and similar transactions, and budget comparisons; (xix) personal professional objectives, including any of the foregoing Performance Goals, the implementation of policies and plans, the negotiation of transactions, the development of long term business goals, formation of joint ventures, research or development collaborations, and the completion of other corporate transactions; and (xx) any combination of, or a specified increase in, any of the foregoing. Where applicable, the Performance Goals may be expressed in terms of attaining a specified level of the particular criteria or the attainment of a percentage increase or decrease in the particular criteria, and may be applied to one or more of the Company, a Subsidiary or Affiliate, or a division or strategic business unit of the Company, or may be applied to the performance of the Company relative to a market index, a group of other companies or a combination thereof, all as determined by the Administrator. The Performance Goals may include a threshold level of performance below which no payment shall be made (or no vesting shall occur), levels of performance at which specified payments shall be made (or specified vesting shall occur), and a maximum level of performance above which no additional payment shall be made (or at which full vesting shall occur). Each of the foregoing Performance Goals shall not be required to be determined in accordance with generally accepted accounting principles and shall be subject to certification by the Administrator; provided that the Administrator shall have the authority to

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make equitable adjustments to the Performance Goals in recognition of unusual or non-recurring events affecting the Company or any Subsidiary or Affiliate or the financial statements of the Company or any Subsidiary or Affiliate, in response to changes in applicable laws or regulations, or to account for items of gain, loss or expense determined to be extraordinary or unusual in nature or infrequent in occurrence or related to the disposal of a segment of a business or related to a change in accounting principles.

(y)“Performance Shares” means Shares that are subject to restrictions based upon the attainment of specified performance objectives granted pursuant to Section 9 below.

(z)“Person” means any individual, corporation, firm, partnership, joint venture, limited liability company, estate, trust, business association, organization, governmental entity or other entity.

(aa)“Plan” means this Pierre Foods Holding Corporation 2009 Omnibus Equity Incentive Plan.

(bb)“Restricted Shares” means Shares subject to certain restrictions granted pursuant to Section 9 below.

(cc)“Retirement” means a termination of a Participant’s employment, other than for Cause, on or after attainment of age 65.

(dd)“Shares” means the Company’s Common Stock reserved for issuance under the Plan, as adjusted pursuant to the Plan, and any successor (pursuant to a merger, consolidation or other reorganization) security.

(ee)“Share Appreciation Right” means the right pursuant to an award granted under Section 8 below to receive an amount equal to the excess, if any, of (i) the aggregate Fair Market Value, as of the date such Share Appreciation Right or portion thereof is surrendered, of the Shares covered by such right or such portion thereof, over (ii) the aggregate Exercise Price of such right or such portion thereof.

(ff)“Subsidiary” means, with respect to any Person, as of any date of determination, any other Person as to which such Person owns or otherwise controls, directly or indirectly, more than 50% of the voting shares or other similar interests or a sole general partner interest or managing member or similar interest of such Person.

Section 3. Administration.

(a)The Plan shall be administered by the Administrator and shall be administered in accordance with the requirements of Section 162(m) of the Code (but only to the extent necessary and desirable to maintain qualification of awards under the Plan under Section 162(m) of the Code) and, to the extent applicable, Rule 16b-3 under the Exchange Act (“Rule 16b-3”).

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(b)Pursuant to the terms of the Plan, the Administrator, subject, in the case of any Committee, to any restrictions on the authority delegated to it by the Board, shall have the power and authority, without limitation:

(1)to select those Eligible Recipients who shall be Participants;

(2)to determine whether and to what extent Options, Share Appreciation Rights, awards of Restricted Shares, Deferred Shares, Performance Shares, Other Share-Based Awards or a combination of any of the foregoing are to be granted hereunder to Participants;

(3)to determine the number of Shares to be covered by each Award granted hereunder;

(4)to determine the terms and conditions, not inconsistent with the terms of the Plan, which shall govern all written instruments evidencing Options, Share Appreciation Rights, awards of Restricted Shares, Deferred Shares, Performance Shares, Other Share-Based Awards or any combination of the foregoing granted hereunder (including, but not limited to, (i) the restrictions applicable to Awards and the conditions under which restrictions applicable to such Awards shall lapse, (ii) the Performance Goals and periods applicable to awards of Performance Shares, (iii) the Exercise Price, if any, of Awards, (iv) the vesting schedule applicable to Awards, (v) the number of Shares subject to Awards and (vi) any amendments to the terms and conditions of outstanding Awards, including, but not limited to reducing the Exercise Price of such Awards, extending the exercise period of such Awards and accelerating the vesting schedule of such Awards);

(5)to determine the Fair Market Value with respect to any Award;

(6)to determine the duration and purpose of leaves of absence which may be granted to a Participant without constituting a termination of the Participant’s employment for purposes Nonqualified Share Options granted under the Plan;

(7)to adopt, alter and repeal such administrative rules, guidelines and practices governing the Plan as it shall from time to time deem advisable;

(8)to construe and interpret the terms and provisions of the Plan and any Award issued under the Plan (and any Award Agreement relating thereto) and to otherwise supervise the administration of the Plan and to exercise all powers and authorities either specifically granted under the Plan or necessary and advisable in the administration of the Plan;

(9)to delegate its authority, in whole or in part, under this Section 3 to two or more individuals (who may or may not be members of the Board), subject to the requirements of applicable law or any stock exchange on which the Shares are traded; and

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(10)to determine at any time whether, to what extent and under what circumstances and method or methods Awards may be settled by the Company, or any Participating Subsidiary or Affiliate. In the event of such determination, references to the Company shall be deemed to be references to the applicable Participating Subsidiary or Affiliate for purposes of the Plan as appropriate.

(c)All decisions made by the Administrator pursuant to the provisions of the Plan shall be final, conclusive and binding on all Persons, including the Company and the Participants. No member of the Board or the Committee, nor any officer or employee of the Company or any Subsidiary or Affiliate acting on behalf of the Board or the Committee, shall be personally liable for any action, omission, determination, or interpretation taken or made in good faith with respect to the Plan, and all members of the Board or the Committee and each and any officer or employee of the Company and of any Subsidiary or Affiliate acting on their behalf shall, to the maximum extent permitted by law, be fully indemnified and protected by the Company in respect of any such action, omission, determination or interpretation.

Section 4. Shares Reserved for Issuance Under the Plan.

(a)Subject to Section 5 hereof, the maximum number of Shares that may be delivered pursuant to Awards granted under the Plan (the “Share Limit”) shall be 175,000 subject to adjustment as provided herein. During such time as the Plan is subject to Code Section 162(m), the aggregate Awards granted during any fiscal year to any single individual who is likely to be a “covered employee” as defined under Code Section 162(m) shall not exceed the 50% of the Share Limit. Determinations made in respect of the limitation set forth in the preceding sentence shall be made in a manner consistent with Section 162(m) of the Code.

(b)Shares issued under the Plan may, in whole or in part, be authorized but unissued Shares or Shares that shall have been or may be reacquired by the Company or an Affiliate or Subsidiary in the open market, in private transactions or otherwise. If any Shares subject to an Award are forfeited, cancelled, exchanged or surrendered or if an Award otherwise terminates or expires without a distribution of shares to the Participant, the Shares with respect to such Award shall, to the extent of any such forfeiture, cancellation, exchange, surrender, termination or expiration, again be available for Awards under the Plan.

Section 5. Equitable Adjustments.

In the event of any Change in Capitalization, an equitable substitution or proportionate adjustment shall be made, in each case, in the manner to be determined by the Administrator, in its sole discretion, in (i) the aggregate number of Shares reserved for issuance under the Plan and the maximum number of Shares that may be subject to Awards granted to any Participant in any calendar or fiscal year, (ii) the kind, number and Exercise Price subject to outstanding Options and Share Appreciation Rights granted under the Plan, and (iii) the kind, number and purchase price of Shares subject to outstanding awards of Restricted Shares, Deferred Shares, Performance Shares, unrestricted Shares or Other Share-Based Awards granted under the Plan, provided, however, that any fractional shares resulting from the adjustment shall be eliminated. Equitable substitutions or adjustments shall also be made if the Administrator determines in its sole discretion that such adjustment is necessary in order to avoid an adverse

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impact on the value of any outstanding Award granted hereunder. Without limiting the generality of the foregoing, in connection with a Change in Capitalization, the Administrator shall take such action as is necessary to adjust the outstanding Awards to reflect the Change in Capitalization, including, but not limited to, the cancellation of any outstanding Award granted hereunder in exchange for no consideration or payment in cash or other property of the aggregate Fair Market Value of the Shares covered by such Award, reduced by the aggregate Exercise Price or purchase price thereof, if any. Notwithstanding the foregoing, no such adjustment shall cause any Award hereunder that is or becomes subject to Section 409A of the Code to fail to comply with the requirements of such section. The Administrator’s determinations pursuant to this Section 5 shall be final, binding and conclusive.

Section 6. Eligibility.

The Participants under the Plan shall be selected from time to time by the Administrator, in its sole discretion, from among Eligible Recipients. Notwithstanding the foregoing, Non-Employee Directors shall be eligible for Awards as determined by the Administrator from time to time.

Section 7. Options.

(a)General. Each Participant who is granted an Option shall enter into an Award Agreement with the Company, containing such terms and conditions as the Administrator shall determine, in its sole discretion, which Award Agreement shall set forth, among other things, the Exercise Price of the Option, the term of the Option and provisions regarding exercisability of the Option granted thereunder. The provisions of each Option need not be the same with respect to each Participant. More than one Option may be granted to the same Participant and be outstanding concurrently hereunder. Options granted under the Plan shall be subject to the terms and conditions set forth in this Section 7 and shall contain such additional terms and conditions, not inconsistent with the terms of the Plan, as the Administrator shall deem desirable and set forth in the applicable Award Agreement.

(b)Exercise Price. The Exercise Price of Shares purchasable under an Option shall be determined by the Administrator in its sole discretion at the time of grant, provided that the Exercise Price of any Option intended to qualify as performance-based compensation under Section 162(m) of the Code shall not be less than 100% of the Fair Market Value of a Share on the date of grant. To the extent that the Exercise Price of any Option is less than Fair Market Value of a Share on the date of grant, such Option shall be exercised no later than the 15th day of the third month following the end of the fiscal year of the Company during which such Option first becomes exercisable and if such Option is not exercised by such date, such Option shall expire as of the date set forth above.

(c)Option Term. The maximum term of each Option shall be fixed by the Administrator, but no Option shall be exercisable more than ten years after the date such Option is granted. Each Option’s term is subject to earlier expiration pursuant to the applicable provisions in the Plan and the Award Agreement. Notwithstanding the foregoing, the Administrator shall have the authority to accelerate the exercisability of any outstanding Option at such time and under such circumstances as it, in its sole discretion, deems appropriate.

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(d)Exercisability. Each Option shall be exercisable at such time or times and subject to such terms and conditions, including the attainment of pre-established corporate Performance Goals, as shall be determined by the Administrator in the applicable Award Agreement. The Administrator may also provide that any Option shall be exercisable only in installments, and the Administrator may waive such installment exercise provisions at any time, in whole or in part, based on such factors as the Administrator may determine in its sole discretion. Notwithstanding anything to the contrary contained herein, an Option may not be exercised for a fraction of a Share.

(e)Method of Exercise. Options may be exercised in whole or in part by giving written notice of exercise to the Company specifying the number of Shares to be purchased, accompanied by payment in full of the aggregate Exercise Price of the Shares so purchased in cash or its equivalent, as determined by the Administrator. As determined by the Administrator, in its sole discretion, with respect to any Option or category of Options, payment in whole or in part may also be made (i) by means of consideration received under any cashless exercise procedure approved by the Administrator (including the withholding of Shares otherwise issuable upon exercise), (ii) in the form of unrestricted Shares already owned by the Participant which, (x) in the case of unrestricted Shares acquired upon exercise of an Option, have been owned by the Participant for more than six months on the date of surrender, and (y) have a Fair Market Value on the date of surrender equal to the aggregate option price of the Shares as to which such Option shall be exercised, (iii) any other form of consideration approved by the Administrator and permitted by applicable law or (iv) any combination of the foregoing.

(f)Rights as Stockholder. A Participant shall have no rights to distributions or any other rights of a stockholder with respect to the Shares subject to an Option until the Participant has given written notice of exercise, has paid in full for such Shares, has satisfied the requirements of Section 13 hereof and, if requested, has given the representation described in paragraph (b) of Section 15 hereof.

(g)Transfers of Options. Except as otherwise determined by the Administrator, no Option granted under the Plan shall be transferable by a Participant other than by the laws of descent and distribution. Unless otherwise determined by the Administrator in accord with the provisions of the immediately preceding sentence, an Option may be exercised, during the lifetime of the Participant, only by the Participant or, during the period the Participant is under a legal disability, by the Participant’s guardian or legal representative. The Administrator may, in its sole discretion, subject to applicable law, permit the gratuitous transfer during a Participant’s lifetime of a Nonqualified Share Option, (i) by gift to a member of the Participant’s immediate family, (ii) by transfer by instrument to a trust for the benefit of such immediate family members, or (iii) to a partnership or limited liability company in which such family members are the only partners or members; provided, however, that, in addition to such other terms and conditions as the Administrator may determine in connection with any such transfer, no transferee may further assign, sell, hypothecate or otherwise transfer the transferred Option, in whole or in part, other than by operation of the laws of descent and distribution. Each permitted transferee shall agree to be bound by the provisions of this Plan and the applicable Award Agreement.

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(h)Termination of Employment or Service.

(1)Unless the applicable Award Agreement provides otherwise, in the event that the employment or service of a Participant with the Company or any Subsidiary or Affiliate shall terminate for any reason other than Cause, Retirement, Disability, or death, (A) Options granted to such Participant, to the extent that they are exercisable at the time of such termination, shall remain exercisable until the date that is 90 days after such termination, on which date they shall expire, and (B) Options granted to such Participant, to the extent that they were not exercisable at the time of such termination, shall expire at the close of business on the date of such termination. The 90-day period described in this Section 7(h)(1) shall be extended to one year after the date of such termination in the event of the Participant’s death during such 90-day period. Notwithstanding the foregoing, no Option shall be exercisable after the expiration of its term.

(2)Unless the applicable Award Agreement provides otherwise, in the event that the employment or service of a Participant with the Company or any Subsidiary shall terminate on account of the Retirement, Disability, or death of the Participant, (A) Options granted to such Participant, to the extent that they were exercisable at the time of such termination, shall remain exercisable until the date that is one year after such termination, on which date they shall expire and (B) Options granted to such Participant, to the extent that they were not exercisable at the time of such termination, shall expire at the close of business on the date of such termination. Notwithstanding the foregoing, no Option shall be exercisable after the expiration of its term.

(3)In the event of the termination of a Participant’s employment or service for Cause, all outstanding Options granted to such Participant shall expire at the commencement of business on the date of such termination.

(i)Other Change in Employment Status. An Option shall be affected, both with regard to vesting schedule and termination, by leaves of absence, changes from full-time to part-time employment, partial disability or other changes in the employment status of a Participant, in the sole discretion of the Administrator. The Administrator shall follow any applicable written policies of the Company (if any), including such rules, guidelines and practices as may be adopted pursuant to Section 3 hereof, as they may be in effect from time to time, with regard to such matters.

Section 8. Share Appreciation Rights.

(a)General. Share Appreciation Rights may be granted either alone (“Free Standing Rights”) or in conjunction with all or part of any other Award granted under the Plan (“Related Rights”), provided that, in each case, the Shares underlying the Share Appreciation Rights are traded on an “established securities market” within the meaning of Section 409A of the Code. Related Rights may be granted either at or after the time of the grant of such Award. The Administrator shall determine the Eligible Recipients to whom, and the time or times at which, grants of Share Appreciation Rights shall be made; the number of Shares to be awarded, the price per Share, and all other conditions of Share Appreciation Rights. Notwithstanding the foregoing, no Related Right may be granted for more Shares than are

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subject to the Award to which it relates and any Share Appreciation Right must be granted with an Exercise Price not less than the Fair Market Value of a Share on the date of grant. The provisions of Share Appreciation Rights need not be the same with respect to each Participant. Share Appreciation Rights granted under the Plan shall be subject to the following terms and conditions set forth in this Section 8 and shall contain such additional terms and conditions, not inconsistent with the terms of the Plan, as the Administrator shall deem desirable, as set forth in the applicable Award Agreement.

(b)Awards. The prospective recipient of a Share Appreciation Right shall not have any rights with respect to such Award, unless and until such recipient has executed an Award Agreement and delivered a fully executed copy thereof to the Company, within a period of sixty days (or such other period as the Administrator may specify) after the award date. Participants who are granted Share Appreciation Rights shall have no rights as stockholders of the Company with respect to the grant or exercise of such rights.

(c)Exercisability.

(1)Share Appreciation Rights that are Free Standing Rights (“Free Standing Share Appreciation Rights”) shall be exercisable at such time or times and subject to such terms and conditions as shall be determined by the Administrator at or after grant.

(2)Share Appreciation Rights that are Related Rights (“Related Share Appreciation Rights”) shall be exercisable only at such time or times and to the extent that the Awards to which they relate shall be exercisable in accordance with the provisions of Section 7 above and this Section 8 of the Plan.

(d)Payment Upon Exercise.

(1)Upon the exercise of a Free Standing Share Appreciation Right, the Participant shall be entitled to receive up to, but not more than, that number of Shares equal in value to the excess of the Fair Market Value of a Share as of the date of exercise over the price per Share specified in the Free Standing Share Appreciation Right (which price shall be no less than 100% of the Fair Market Value of a Share on the date of grant) multiplied by the number of Shares in respect of which the Free Standing Share Appreciation Right is being exercised, with the Administrator having the right to determine the form of payment.

(2)A Related Right may be exercised by a Participant by surrendering the applicable portion of the related Award. Upon such exercise and surrender, the Participant shall be entitled to receive up to, but not more than, that number of Shares equal in value to the excess of the Fair Market Value of a Share as of the date of exercise over the Exercise Price specified in the related Award (which price shall be no less than 100% of the Fair Market Value of a Share on the date of grant) multiplied by the number of Shares in respect of which the Related Share Appreciation Right is being exercised, with the Administrator having the right to determine the form of payment. Awards that have been so surrendered, in whole or in part, shall no longer be exercisable to the extent the Related Rights have been so exercised.

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(3)Notwithstanding the foregoing, the Administrator may determine to settle the exercise of a Share Appreciation Right in cash (or in any combination of Shares and cash) to the extent that such settlement does not violate Section 409A of the Code.

(e)Non-Transferability.

(1)Free Standing Share Appreciation Rights shall be transferable only when and to the extent that an Award would be transferable under Section 7 of the Plan.

(2)Related Share Appreciation Rights shall be transferable only when and to the extent that the underlying Award would be transferable under Section 7 of the Plan.

(f)Termination of Employment or Service.

(1)In the event of the termination of employment or service with the Company, any Subsidiary or any Affiliate of a Participant who has been granted one or more Free Standing Share Appreciation Rights, such rights shall be exercisable at such time or times and subject to such terms and conditions as shall be determined by the Administrator at or after grant.

(2)In the event of the termination of employment or service with the Company or any Subsidiary of a Participant who has been granted one or more Related Share Appreciation Rights, such rights shall be exercisable at such time or times and subject to such terms and conditions as set forth in the related Share Options.

(g)Term.

(1)The term of each Free Standing Share Appreciation Right shall be fixed by the Administrator, but no Free Standing Share Appreciation Right shall be exercisable more than ten years after the date such right is granted.

(2)The term of each Related Share Appreciation Right shall be the term of the Award to which it relates, but no Related Share Appreciation Right shall be exercisable more than ten years after the date such right is granted.

Section 9. Restricted Shares, Deferred Shares and Performance Shares.

(a)General. Awards of Restricted Shares, Deferred Shares or Performance Shares may be issued either alone or in addition to other Awards granted under the Plan. The Administrator shall determine the Eligible Recipients to whom, and the time or times at which, awards of Restricted Shares, Deferred Shares or Performance Shares shall be made; the number of Shares to be awarded; the price, if any, to be paid by the Participant for the acquisition of Restricted Shares, Deferred Shares or Performance Shares; the Restricted Period (as defined in paragraph (c) of this Section 9), if any, applicable to awards of Restricted Shares or Deferred Shares; the performance objectives applicable to awards of Restricted Shares, Deferred Shares or Performance Shares; and all other conditions of the awards of Restricted

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Shares, Deferred Shares and Performance Shares. The Administrator may also condition the grant of the award of Restricted Shares, Deferred Shares or Performance Shares upon the exercise of Options, or upon such other criteria as the Administrator may determine, in its sole discretion. If the restrictions, performance objectives and/or conditions established by the Administrator are not attained, a Participant shall forfeit his or her shares of Restricted Shares, Deferred Shares or Performance Shares. The provisions of the awards of Restricted Shares, Deferred Shares or Performance Shares need not be the same with respect to each Participant.

(b)Awards and Certificates. The prospective recipient of awards of Restricted Shares, Deferred Shares or Performance Shares shall not have any rights with respect to any such Award, unless and until such recipient has executed an Award Agreement and delivered a fully executed copy thereof to the Company, within a period of sixty days (or such other period as the Administrator may specify) after the award date. Except as otherwise provided below in this Section 9, (i) each Participant who is granted an award of Restricted Shares or Performance Shares shall be issued a share certificate in respect of such shares of Restricted Shares or Performance Shares (or such other appropriate evidence of ownership as determined by the Administrator); and (ii) such certificate (or other evidence of ownership) shall be registered in the name of the Participant, and, if appropriate, shall bear a legend referring to the terms, conditions, and restrictions applicable to any such Award.

The Company may require that the share certificates evidencing Restricted Shares or Performance Shares granted hereunder be held in the custody of the Company until the restrictions thereon shall have lapsed and that, as a condition of any award of Restricted Shares or Performance Shares, the Participant shall have delivered a power of attorney, endorsed in blank, relating to the Shares covered by such award.

With respect to awards of Deferred Shares, at the expiration of the Restricted Period, share certificates in respect of such Deferred Shares shall be delivered to the Participant, or his legal representative, in a number equal to the number of Shares covered by the Deferred Shares award.

(c)Restrictions and Conditions. The awards of Restricted Shares, Deferred Shares and Performance Shares granted pursuant to this Section 9 shall be subject to the following restrictions and conditions and any additional restrictions or conditions as determined by the Administrator at the time of grant or thereafter:

(1)Subject to the provisions of the Plan and the Restricted Shares Award Agreement, Deferred Shares Award Agreement or Performance Shares Award Agreement, as appropriate, governing any such Award, during such period as may be set by the Administrator commencing on the date of grant (the “Restricted Period”), the Participant shall not be permitted to sell, transfer, pledge or assign shares of Restricted Shares, Deferred Shares or Performance Shares awarded under the Plan; provided, however, that the Administrator may, in its sole discretion, provide for the lapse of such restrictions in installments and may accelerate or waive such restrictions in whole or in part based on such factors and such circumstances as the Administrator may determine, in its sole discretion, including, but not limited to, the attainment of certain performance related goals, the Participant’s termination of employment or service as a

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director or Consultant to the Company or any Subsidiary or Affiliate, the Participant’s death or Disability.

(2)Except as may be provided in a Restricted Share Award Agreement or a Performance Share Award Agreement, the Participant shall generally have the rights of a stockholder of the Company with respect to Restricted Shares or Performance Shares during the Restricted Period. The Participant shall generally not have the rights of a stockholder with respect to Shares subject to awards of Deferred Shares during the Restricted Period; provided, however, that distributions declared during the Restricted Period with respect to the number of Shares covered by Deferred Shares shall be paid to the Participant. Certificates for unrestricted Shares shall be delivered to the Participant promptly after, and only after, the Restricted Period shall expire without forfeiture in respect of such awards of Restricted Shares, Deferred Shares or Performance Shares except as the Administrator, in its sole discretion, shall otherwise determine.

(3)The rights of Participants granted awards of Restricted Shares, Deferred Shares or Performance Shares upon termination of employment or service as a director or Consultant to the Company or to any Subsidiary or Affiliate for any reason during the Restricted Period, shall be set forth in the Award Agreement.

Section 10. Other Share-Based Awards.

(a)The Administrator is authorized to grant Awards to Participants in the form of Other Share-Based Awards, as deemed by the Administrator to be consistent with the purposes of the Plan and as evidenced by an Award Agreement, including, but not limited to, awards of LTIP Units, awards of restricted share units and awards that are valued in whole or in part by reference to Shares. Other Share-Based Awards may be granted as free-standing awards or in tandem with other Awards under the Plan. The Administrator shall determine the terms and conditions of such Awards, consistent with the terms of the Plan, at the date of grant or thereafter, including any Performance Goals and performance periods. Shares or other securities or property delivered pursuant to an Award in the nature of a purchase right granted under this Section 10 shall be purchased for such consideration, paid for at such times, by such methods, and in such forms, including, without limitation, Shares, other Awards, notes or other property, as the Administrator shall determine, subject to any required corporate action. The Administrator may, in its sole discretion, settle such Other Share-Based Awards for cash or other property as appropriate; provided that it determines, after consultation with its or the Company’s legal counsel and tax advisers, that such alternate settlement would be in the Company’s best interest.

(b)LTIP Units may be granted as free-standing awards or in tandem with other Awards under the Plan, and may be valued by reference to the Shares, and will be subject to such other conditions and restrictions as the Administrator, in its sole discretion, may determine, including, but not limited to, continued employment or service, computation of financial metrics and/or achievement of pre-established Performance Goals and objectives. LTIP Unit awards, whether vested or unvested, may entitle the Participant to receive, currently or on a deferred or contingent basis, distributions or distribution equivalent payments with respect to the number Shares corresponding to the LTIP Unit or other distributions and the Administrator may provide in the applicable Award Agreement that such amounts (if any) shall be deemed to have

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been reinvested in additional Shares or LTIP Units. The Administrator has the authority to determine the number of Shares underlying an award of LTIP Units in light of all applicable circumstances, including performance-based vesting conditions, or value accretion factors and conversion ratios.

(c)To the extent that the Plan is subject to Section 162(m) of the Code, no payment shall be made to a “covered employee” (within the meaning of Section 162(m) of the Code) prior to the certification by the Administrator that the Performance Goals have been attained. The Administrator may establish such other rules applicable to the Other Share-Based Awards, provided, however, that in the event that the Plan is subject to Section 162(m) of the Code, such rules shall be in compliance with Section 162(m) of the Code.

Section 11. Amendment and Termination.

The Board may amend, alter or terminate the Plan, but no amendment, alteration, or termination shall be made that would impair the rights of a Participant under any Award theretofore granted without such Participant’s consent. Unless the Board determines otherwise, the Board shall obtain approval of the Company’s stockholders for any amendment that would require such approval in order to satisfy the requirements of sections 162(m) of the Code, any rules of the stock exchange on which the Shares are traded or other applicable law. If any Award is subject to Section 409A of the Code and fails to comply with the requirements of Section 409A of the Code, the Administrator reserves the right to (but is not obligated to) amend, modify or supplement such Award in order to cause it to either not be subject to Section 409A of the Code or to comply with the applicable provisions of Section 409A of the Code. The Administrator may amend the terms of any Award theretofore granted, prospectively or retroactively, but, subject to Section 5 of the Plan, no such amendment shall impair the rights of any Participant without his or her consent.

Section 12. Unfunded Status of Plan.

The Plan is intended to constitute an “unfunded” plan for incentive compensation. With respect to any payments not yet made to a Participant by the Company, nothing contained herein shall give any such Participant any rights that are greater than those of a general creditor of the Company.

Section 13. Withholding Taxes.

Each Participant shall, no later than the date as of which the value of an Award first becomes includible in the gross income of the Participant for federal and/or state income tax purposes, pay to the Company, or make arrangements satisfactory to the Administrator regarding payment of, any federal, state, or local taxes of any kind required by law to be withheld with respect to the Award. The obligations of the Company under the Plan shall be conditional on the making of such payments or arrangements, and the Company shall, to the extent permitted by law, have the right to deduct any such taxes from any payment of any kind otherwise due to the Participant. Whenever cash is to be paid pursuant to an Award granted hereunder, the Company shall have the right to deduct therefrom an amount sufficient to satisfy any federal, state and local withholding tax requirements related thereto. Whenever Shares are to be delivered pursuant to an

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Award, the Company shall have the right to require the Participant to remit to the Company in cash an amount sufficient to satisfy any federal, state and local withholding tax requirements related thereto. With the approval of the Administrator, a Participant may satisfy the foregoing requirement by electing to have the Company withhold from delivery of Shares or by delivering already owned unrestricted Shares, in each case, having a value equal to the minimum amount of tax required to be withheld. Such Shares shall be valued at their Fair Market Value on the date of which the amount of tax to be withheld is determined. Fractional share amounts shall be settled in cash. Such an election may be made with respect to all or any portion of the Shares to be delivered pursuant to an Award. The Company may also use any other method of obtaining the necessary payment or proceeds, as permitted by law, to satisfy its withholding obligation with respect to any Option or other Award.

Section 14. Section 409A.

Notwithstanding any provision to the contrary in this Plan, to the extent necessary to avoid the imposition of any taxes under Section 409A of the Code, no payment or distribution under this Plan that becomes payable by reason of a Participant’s termination of employment with the Company will be made to such Participant unless such Participant’s termination of employment constitutes a ‘separation from service’ (as such term is defined in Section 409A of the Code). For purposes of this Plan, each amount to be paid or benefit to be provided shall be construed as a separate identified payment for purposes of Section 409A of the Code. If a Participant is a ‘specified employee’ as defined in Section 409A of the Code and, as a result of that status, any portion of the payments under this Plan would otherwise be subject to taxation pursuant to Section 409A of the Code, such Participant shall not be entitled to any payments upon a termination of his or her employment until the earlier of (i) the expiration of the six (6)-month period measured from the date of such Participant’s ‘separation from service’ (within the meaning of Section 409A of the Code) or (ii) the date of such Participant’s death. Upon the expiration of the applicable Section 409A deferral period, all payments and benefits deferred pursuant to this Section 14 (whether they would have otherwise been payable in a single sum or in installments in the absence of such deferral) shall be paid or reimbursed to such Participant in a lump sum as soon as practicable, but in no event later than ten (10) days following such expired period (or if the payment is being made following the Participant’s death, no later than sixty (60) days following the date of death), and any remaining payments due under this Plan will be paid in accordance with the normal payment dates specified for them herein.

Section 15. General Provisions.

(a)Shares shall not be issued pursuant to the exercise of any Award granted hereunder unless the exercise of such Award and the issuance and delivery of such Shares pursuant thereto shall comply with all relevant provisions of law, including, without limitation, the Securities Act of 1933, as amended, the Exchange Act and the requirements of any stock exchange upon which the Shares may then be listed, and shall be further subject to the approval of counsel for the Company with respect to such compliance.

(b)The Administrator may require each Person acquiring Shares to represent to and agree with the Company in writing that such Person is acquiring the Shares without a view to distribution thereof. The certificates for such Shares may include any legend

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that the Administrator deems appropriate to reflect any restrictions on transfer which the Administrator determines, in its sole discretion, arise under applicable securities laws or are otherwise applicable.

(c)All certificates for Shares delivered under the Plan shall be subject to such stop-transfer orders and other restrictions as the Administrator may deem advisable under the rules, regulations, and other requirements of the Securities and Exchange Commission, any stock exchange upon which the Shares may then be listed, and any applicable federal or state securities law, and the Administrator may cause a legend or legends to be placed on any such certificates to make appropriate reference to such restrictions.

(d)The Administrator may require a Participant receiving Shares pursuant to the Plan, as a condition precedent to receipt of such Shares, to enter into a stockholders’ agreement or “lock-up” agreement in such form as the Administrator shall determine is necessary or desirable to further the Company’s interests.

(e)The adoption of the Plan shall not confer upon any Eligible Recipient any right to continued employment or service with the Company or any Subsidiary, as the case may be, nor shall it interfere in any way with the right of the Company or any Subsidiary to terminate the employment or service of any of its Eligible Recipients at any time.

Section 16. Effective Date.

The Plan became effective upon adoption by the Board on January 15, 2009 (the “Effective Date”), and approval by stockholders of the Company on January 15, 2009.

Section 17. Term of Plan.

No Award shall be granted pursuant to the Plan on or after the tenth anniversary of the Effective Date, but Awards theretofore granted may extend beyond that date.

Section 18. Governing Law.

This Plan shall be governed by and construed and enforced in accordance with the laws of the State of Delaware without regard to conflict of law principles thereunder.

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EXHIBIT B

STOCK POWER

FOR VALUE RECEIVED and pursuant to that certain Restricted Stock Award Agreement between Pierre Foods Holding Corporation, a Delaware corporation (the “Company”), and the individual named below (the “Individual”) dated as of              , the Individual, hereby sells, assigns and transfers to the Company, an aggregate          shares of Common Stock of the Company, standing in the Individual’s name on the books of the Company and represented by stock certificate number(s)                                               to which this instrument is attached, and hereby irrevocably constitutes and appoints                                                        as his or her attorney in fact and agent to transfer such shares on the books of the Company, with full power of substitution in the premises.

Dated
	Signature
	Print Name

(Instruction: Please do not fill in any blanks other than the signature line.  The purpose of the assignment is to enable the Company to exercise its sale/purchase option set forth in the Restricted Stock Award Agreement without requiring additional signatures on the part of the Individual.)

EXHIBIT C

Procedure for Filing a Section 83(b) Election

In order to make an election under section 83(b) of the Internal Revenue Code of 1986, as amended, a statement similar to that attached hereto should be executed by the employee.  Within thirty days after the restricted property has been transferred, one copy of this statement should be submitted to the employer and a second copy should be filed with the Internal Revenue Service Center with which the employee normally files his or her Federal income tax return.  In addition, a third copy should be attached to the employee’s Federal income tax return that is filed for the taxable year during which the restricted property is received by the employee

EXHIBIT C

ELECTION UNDER SECTION 83(b)

OF THE INTERNAL REVENUE CODE OF 1986

The undersigned taxpayer hereby elects, pursuant to Section 83(b) of the Internal Revenue Code of 1986, as amended, to include in taxpayer’s gross income for the current taxable year the amount of any compensation taxable to taxpayer in connection with taxpayer’s receipt of the property described below:

1.             The name address, taxpayer identification number and taxable year of the undersigned are as follows:

NAME OF TAXPAYER:

NAME OF SPOUSE:

ADDRESS:

IDENTIFICATION NO. OF TAXPAYER:

IDENTIFICATION NUMBER OF SPOUSE:

TAXABLE YEAR:

2.             The property with respect to which the election is made is described as follows:         restricted shares of common stock (the “Shares”) of Pierre Foods Holding Corporation (the “Company”), each having a par value of $0.01.

3.             The date on which the property was transferred is:               .

4.             The property is subject to the following restrictions:

The Shares may not be transferred and are subject to forfeiture under the Terms and Conditions of the Pierre Foods Holding Corporation 2009 Omnibus Equity Incentive Plan, the Restricted Stock Award Agreement and any other agreements between the taxpayer and the Company (the “Agreements”).  These restrictions lapse upon the satisfaction of certain conditions in such Agreements.

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5.             The fair market value at the time of transfer, determined without regard to any restriction other than a restriction which by its terms will never lapse, of such property is:  $               .

6.             The amount (if any) paid for such property is:  $               .

The undersigned has submitted a copy of this statement to the person for whom the services were performed in connection with the undersigned’s receipt of the above-described property.  The transferee of such property is the person performing the services in connection with the transfer of said property.

The undersigned understands that the foregoing election may not be revoked except with the consent of the Commissioner.

Dated:
	Taxpayer
The undersigned spouse of taxpayer joins in this election.
Dated:
	Spouse of Taxpayer

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EXHIBIT D

In the event of the termination of the Holder’s employment with the Company for any reason, the Company shall have the right, but not the obligation, to repurchase all or any portion of the then outstanding vested equity interests held by the Holder in accordance with the terms and conditions set forth in this Exhibit D (the “Call Right”).

(a)          Right to Repurchase.  In the event that the Holder’s employment with the Company is terminated for any reason , the Company shall have the right, but not the obligation, to repurchase all or any portion of the vested equity interests held by the Holder, the Holder’s estate, successors, beneficiaries or transferees, as applicable (each a “Holder”).  The purchase price for each equity interest (“Purchase Price”) shall be equal to the Fair Market Value of such equity interest on the date the Company exercises the Call Right.  For purposes of this Call Right, “Fair Market Value” shall mean, the value per equity interest determined pursuant to a valuation made in good faith by the Board and based upon a reasonable valuation method.

(b)          Exercise of Call Right.  The Company may by giving written notice (the “Notice”) to the Holder, elect to purchase all or any portion of the vested equity interests, at the purchase price determined in accordance with subsection (a) above.

(c)          Payment.  Payment of the applicable purchase price (as determined in accordance with subsection (a) above) shall be made, at the Company’s election, in cash, by check, by cancellation of all or a portion of any outstanding indebtedness of the Holder to the Company, or by any combination thereof, within 30 days after receipt of the Notice or in the manner and at the times set forth in the Notice, provided such payment may be delayed to the extent that any financing agreement to which the Company or any of its Affiliates is a party restricts such repurchase, in which case, the payment shall be made as soon practicable following the lapse of the restriction in the applicable financing agreement; provided further that the purchase price shall bear interest at 8% per year if it is not paid within the thirty (30) days stated and from the thirty-first (31) day until paid in full.

(d)          Termination of Call Right.  In the event of an Initial Public Offering, the Call Right shall immediately terminate as to any equity interests.  For purposes of this Call Right, an “Initial Public Offering” shall mean a bona fide public offering underwritten by a nationally recognized underwriter that involves a firm commitment underwriting of at least 25% of the common stock (on a fully diluted basis) of the Company.

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EX-10.21

Exhibit 10.21

ADVANCEPIERRE FOODS, INC.

2016 EXECUTIVE SEVERANCE PLAN

AdvancePierre Foods, Inc. (the “Company”) hereby adopts this AdvancePierre Foods, Inc. 2016 Executive Severance Plan, effective as of [         ], 2016 (the “Effective Date”), for the benefit of “Eligible Executives” (as defined below).

The “Plan” (as defined below) is intended to help retain qualified executives, maintain a stable work environment, provide guidelines for the payment of “Severance Pay” and the provision of “Company-Paid COBRA Coverage” (each, as defined below).

The Plan serves as the plan document for the Company and there are no other plan documents.  The Plan supersedes any and all prior plans, policies or practices, written or oral, with respect to severance pay or benefits, which may have previously applied to employees of the Company, except for the Advance Pierre Foods Special Enhanced Severance Plan and severance pay or benefit provisions in any individual employment contract between the Company and any individual, as amended from time to time, which remain in full force and effect.

The Plan, as a “severance pay arrangement” within the meaning of Section 3(2)(B)(i) of ERISA, is intended to be excepted from the definitions of “Employee pension benefit plan” and “pension plan” set forth under Section 3(2) of ERISA, and is intended to meet the descriptive requirements of a plan constituting a “severance pay plan” within the meaning of regulations published by the Secretary of Labor at Title 29, Code of Federal Regulations, § 2510.3-2(b).

SECTION 1.DEFINITIONS.   As hereinafter used:

1.1“Annual Base Salary” means, for purposes of the Plan, the Eligible Executive’s annual base salary as in effect as of such Eligible Executive’s Separation Date.  Annual Base Salary does not include any bonus or incentive pay, commission, benefits, 401(k) contributions or any other remuneration.

1.2“Annual Bonus Amount” means, for purposes of the Plan, the last annual bonus actually paid to the Eligible Executive prior to the Separation Date for a full fiscal year of employment with the Company, determined without regard to the payment of any special bonuses (e.g., transaction bonuses); provided, if the Eligible Executive, on the Separation Date, has never been paid an annual bonus with respect to one full fiscal year, then the Eligible Executive’s Annual Bonus Amount shall equal (A) the amount of the Eligible Executive’s guaranteed bonus in respect of the year of termination, if applicable, or (B) if the Eligible Executive is not eligible to receive a guaranteed bonus in respect of the year of termination, then the amount of the Eligible Executive’s target bonus for the year in which such Separation Date occurs.

1.3“Board” means the Board of Directors of the Company.

1.4“Cause” means, as determined by the Plan Administrator in its sole discretion,

(a)If an Eligible Executive is party to a written employment agreement with the Company, the meaning ascribed to such term therein (if any);

(b)If an Eligible Executive is not party to a written employment agreement with the Company or such written employment agreement ascribes no meaning to such term, then if such Eligible Executive is party to the Company’s Special Enhanced Severance Plan, the meaning ascribed to such term therein;

(c)If an Eligible Executive is not party to a written employment agreement with the Company or such written employment agreement ascribes no meaning to such term and if an Eligible Executive is not party to the Company’s Special Enhanced Severance Plan, then a termination of an Eligible Executive’s employment because of an Eligible Executive’s (i) failure to perform his or her duties to the Company; (ii) any material breach of a written employment contract with the Company by such employee; (iii) willful violation by such employee of any law, rule or regulation, which violation results, or could reasonably be expected to result, in material harm to the business or reputation of the Company; (iv) the conviction or commission of, or the entry of a guilty plea or plea of no contest to, any felony or other crime involving moral turpitude; (v) violation of any material policy of the Company (including, but not limited to, the covenants set forth in Section 2.7 of the Plan); (vi) misappropriation, embezzlement or dishonesty; or (vii) disclosure of confidential information regarding the Company or its business.

1.5“COBRA” means the Consolidated Omnibus Budget Reconciliation Act of 1985, as it may be amended from time to time.

1.6“Company” means AdvancePierre Foods, Inc.

1.7“Company-Paid COBRA Coverage” means, for each Eligible Executive, provided such Eligible Executive timely elects health insurance coverage under the Company’s health insurance plans for the Eligible Executive and/or his or her eligible dependents under COBRA, the number of months, as set forth in Section 2.1 below, in which the Company will pay the Eligible Executive’s cost of COBRA coverage following the Eligible Executive’s Separation Date.

1.8“Disability” means an Eligible Executive’s inability, because of physical or mental illness or injury, to perform the essential functions of his or her customary duties to the Company, even with a reasonable accommodation, and the continuation of such disabled condition for a period of six (6) months.

1.9“Effective Date” means [            ], 2016.

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1.10“Eligible Executive” means any Executive Officer who is employed full-time or part-time by the Company as of the Effective Date, excluding any individual (a) whose pay is reported to the IRS on Form 1099; (b) who is treated as an independent contractor or consultant on the books and records of the Company; or (c) who is suspended (with or without pay) as of the Effective Date; provided, however, that notwithstanding anything to the contrary contained herein, no Eligible Executive shall be entitled to Severance Pay to the extent such Eligible Executive is eligible for greater cash severance benefits under any other written agreement, plan or arrangement to which the Company or any affiliate is party, in the Plan Administrator’s sole discretion.

1.11“ERISA” means the Employee Retirement Income Security Act of 1974, as it may be amended from time to time.

1.12“Executive Officer” means any employee of the Company who is an officer-level direct report to the Chief Executive Officer and any other executive deemed eligible for this Plan through written approval of the Chief Executive Officer.

1.13“Other Executive Officer” means any Executive Officer of the Company other than the Chief Executive Officer or the Chief Financial Officer.

1.14“Plan” means the AdvancePierre Foods, Inc. 2016 Executive Severance Plan, as set forth herein, as may be amended from time to time.

1.15“Plan Administrator” means a committee or such person or persons appointed by the Board to administer the Plan.

1.16“Qualifying Termination of Employment” means the termination of an Eligible Executive’s employment without Cause by the Company on or after the Effective Date.  Qualifying Termination of Employment shall not include a termination of employment on account of (i) a termination of employment by the Company for Cause, death or Disability; (ii) any termination of employment by an Eligible Executive; or (iii) a termination due to the sale of the Company, a facility, division or subsidiary following which the Eligible Executive is not offered comparable employment by the such purchaser or successor.

1.17“Release” means the form of agreement as provided by the Company.

1.18“Release Effective Date” means the date upon which the Release becomes effective pursuant to the Release’s terms.

1.19“Separation Date” means the date on which an Eligible Executive incurs a Qualifying Termination of Employment.

1.20“Severance Pay” means the amounts, as applicable, described below:

(a)With respect to the individual serving as Chief Executive Officer of the Company, an amount equal to the sum of: (x) two times the Eligible Executive’s Annual Base

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Salary; plus (y) two times the average of the Eligible Executive’s Annual Bonus Amount for each of the two fiscal years completed prior to the Eligible Executive’s Separation Date;

(b)With respect to the individual serving as Chief Financial Officer of the Company, an amount equal to the sum of: (x) one and one-half times the Eligible Executive’s Annual Base Salary; plus (y) one and one-half times the average of the Eligible Executive’s Annual Bonus Amount for each of the two fiscal years completed prior to the Eligible Executive’s Separation Date; or

(c)With respect to all Other Executive Officers of the Company, an amount equal to the sum of: (x) one times the Eligible Executive’s Annual Base Salary; plus (y) one times the average of the Eligible Executive’s Annual Bonus Amount for each of the two fiscal years completed prior to the Eligible Executive’s Separation Date.

1.21“Target Bonus Amount” means the target annual bonus amount in effect for such Eligible Executive as of the Eligible Executive’s Separation Date.

SECTION 2.SEVERANCE PAY AND BENEFITS.

2.1Subject to the provisions of the Plan, including, but not limited to, Sections 2.2, 2.3, 2.4, 2.5, 2.6, 2.7, 2.8 and 2.9 below, each Eligible Executive who experiences a Qualifying Termination of Employment shall be entitled to receive:

(a)Severance Pay in the form of a lump-sum payment, less all applicable payroll taxes and authorized withholdings, no later than the second regular Company payroll date following the Eligible Executive’s Release Effective Date;

(b)twenty-four (24) months in the case of the Chief Executive Officer, eighteen (18)  months in the case of the Chief Financial Officer or twelve (12) months in the case of any Other Executive Officer of Company-Paid COBRA Coverage beginning in the month following the month in which the Eligible Executive’s Separation Date occurs; provided, that the coverage period for purposes of COBRA shall run concurrently with the Company-Paid COBRA Coverage period; provided, further, that Company-Paid COBRA Coverage shall cease at such time as the Eligible Executive becomes eligible for coverage with a subsequent employer or otherwise ceases to be eligible for COBRA coverage; and

(c)outplacement services for three (3) months with an entity to be selected by the Company, provided that such services must be used beginning no later than three (3) months following the Separation Date.

2.2If an Eligible Executive is rehired or re-engaged by the Company or any affiliate, such Eligible Executive shall no longer be eligible to receive any payments or benefits under Section 2.1.

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2.3No Eligible Executive who incurs a Qualifying Termination of Employment shall be eligible to receive the payments and benefits set forth in Section 2.1 unless he or she first executes the Release no later than forty-five (45) days following the Separation Date; provided that the Eligible Executive may not sign the Release prior to the Separation Date.  If the Eligible Executive does not execute and return the Release within the required time frame, or if the Release Effective Date does not occur, the Eligible Executive shall not be entitled to any payments or benefits under the Plan.

2.4In the event of an Eligible Executive’s death after the Separation Date, any unpaid portion of the Severance Pay will be paid to the Eligible Executive’s designated beneficiary (or to the Eligible Executive’s estate if no beneficiary is designated) as if the Eligible Executive had survived under the same terms and conditions provided hereunder.

2.5Where the Company provides an Eligible Executive with advance notice of a Qualifying Termination of Employment, the Eligible Executive will be eligible to receive the payments and benefits under Section 2.1 above only if he or she remains employed by the Company until the Eligible Executive’s Separation Date as specified by the Company.  Without limiting the generality of the foregoing, if an Eligible Executive transfers to another position within the Company or its affiliates or terminates employment with the Company prior to his or her Separation Date for any reason other than a Qualifying Termination of Employment, such Eligible Executive shall not be eligible for any of the payments and benefits under Section 2.1 above.

2.6If the Company provides an Eligible Executive with advance notice pursuant to the Worker Adjustment and Retraining Notification Act of 1988 or any similar state or local law that requires advance notice to Eligible Executives in the event of a closing or layoff (the “WARN Act”), and the Company releases the Eligible Executive from the performance of active duties during all or part of the WARN Act notice period, then the Plan Administrator may, in its sole discretion, reduce the sum of the Eligible Executive’s Severance Pay by the amount of compensation paid by the Company from the first day of the Eligible Executive’s release from the performance of active duties through the end of the WARN Act notice period.

2.7In order to receive and retain any Severance Pay or benefits under Section 2.1 above, an Eligible Executive must (a) remain in compliance at all times with the terms and conditions of (i) the AdvancePierre Foods, Inc. Code of Conduct; (ii) the AdvancePierre Foods, Inc. Employee Handbook; and (iii) any terms and conditions of any individual employment agreements to which the Eligible Executive is a party, in each case, including, but not limited to, under clauses (i) and (ii) above and any confidentiality, return of company property, non-defamation and nondisparagement provisions and any restrictions on speaking on behalf of the Company to the media; (b) satisfactorily perform his or her duties to the Company; and (c) refrain from directly or indirectly, both during Eligible Executive’s employment with the Company and at all times thereafter, defaming the Company and/or its parent company and/or any of their affiliates or any of their businesses or employees, customers, suppliers, vendors or distributors.

2.8If the Plan Administrator determines, at any time during or after an Eligible Executive’s employment, that the Eligible Executive has breached any of the covenants

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set forth in Section 2.7 of the Plan, then at the Plan Administrator’s sole discretion the Eligible Executive shall no longer be eligible for any payments or benefits under the Plan and shall be required to repay the Company any amounts received under the Plan, subject to applicable law.  Any repayments required under this Section 2.8 must be made by the Eligible Executive within thirty (30) days following written demand from the Company.

2.9Notwithstanding anything to the contrary herein, no payments or benefits shall be payable or otherwise provided under this Plan to the extent such payments or benefits are duplicative of payments of benefits payable or otherwise provided under any other individual employment contract or another written severance plan.

SECTION 3.PLAN ADMINISTRATION.

3.1The Plan shall be interpreted, administered and operated by the Plan Administrator, which shall have complete authority in its sole discretion subject to the express provisions of the Plan, to determine who shall be eligible for Severance Pay, to interpret the Plan, to prescribe, amend and rescind such rules and regulations relating to the Plan as it shall deem necessary or appropriate, and to make all other determinations necessary or advisable for the administration of the Plan.

3.2All questions of any character whatsoever arising in connection with the interpretation of the Plan or its administration or operation shall be submitted to and settled and determined by the Plan Administrator in accordance with the procedure for claims and appeals described in Section 6.  Any such settlement and determination shall be final and conclusive, and shall bind and may be relied upon by the Company, each of the Eligible Executives and all other parties in interest.

3.3The Plan Administrator may delegate any of its duties hereunder to such person or persons from time to time as it may designate.

3.4The Plan Administrator is empowered, on behalf of the Plan, to engage accountants, legal counsel and such other personnel as it deems necessary or advisable to assist it in the performance of its duties under the Plan.  The functions of any such persons engaged by the Plan Administrator shall be limited to the specified services and duties for which they are engaged, and such persons shall have no other duties, obligations or responsibilities under the Plan.  Such persons shall exercise no discretionary authority or discretionary control respecting the management of the Plan.  All reasonable expenses thereof shall be borne by the Company.

3.5In no event shall the Plan Administrator be personally liable for any action, determination or interpretation made in good faith with respect to the Plan.  The Plan Administrator shall be indemnified and held harmless by the Company against any cost or expense (including counsel fees) reasonably incurred by the Plan Administrator or liability (including any sum paid in settlement of a claim with the approval of the Company) arising out of any act or omission to act in connection with the Plan, unless arising out of the Plan Administrator’s own fraud or bad faith.  Such indemnification shall be in addition to any rights of indemnification the Plan Administrator may have as an officer or director or otherwise under the bylaws of the Company.

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SECTION 4.PLAN MODIFICATION OR TERMINATION.

4.1The Plan may be modified or amended by the Board at any time; provided, however, no modification or amendment shall be made that would materially impair the rights of an Eligible Executive actively receiving benefits under the Plan at the time of such modification or amendment without such Eligible Executive’s consent.

4.2The benefits provided for in the Plan are not vested benefits and the Plan shall not be funded.  No Eligible Executive shall have any right to or interest in any assets of the Company or other rights under the Plan.

SECTION 5.GENERAL PROVISIONS.

5.1Nothing in the Plan shall be deemed to give any Eligible Executive the right to be retained in the employ of the Company or any subsidiary thereof, or to interfere with the right of the Company to discharge him or her at any time and for any reason, with or without notice or Cause.

5.2Except as otherwise provided herein or by law, no right or interest of any Eligible Executive under the Plan shall be assignable or transferable, in whole or in part, either directly or by operation of law or otherwise, including without limitation by execution, levy, garnishment, attachment, pledge or in any manner; no attempted assignment or transfer thereof shall be effective; and no right or interest of any Eligible Executive under the Plan shall be liable for, or subject to, any obligation or liability of such Eligible Executive.  When a payment is due under the Plan to an Eligible Executive who is unable to care for his or her affairs, payment may be made directly to his or her legal guardian or personal representative.

5.3If any provision of the Plan shall be held invalid or unenforceable, such invalidity or unenforceability shall not affect any other provisions hereof, and the Plan shall be construed and enforced as if such provisions had not been included.

5.4The Company intends that the Plan constitute a “welfare plan” as such term is defined under ERISA. The Plan shall be governed by and construed in accordance with ERISA and all applicable rules and regulations thereunder and to the extent not pre-empted by ERISA, the laws of the State of Ohio.

5.5The Plan shall be effective as of the Effective Date and shall remain in effect unless and until terminated by the Board pursuant to Section 4.1 hereof.

5.6The Company makes no representation about the tax treatment or impact of any payment(s) hereunder.  It is intended that the Plan constitute a “separation pay plan,” as defined in Section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”), and that each of separately identified payments hereunder constitutes separate payments for purposes of Section 409A.  Accordingly, to the maximum extent permitted, the payments under the Plan shall be interpreted and administered in a manner such that they do not constitute deferred compensation within the meaning of Section 409A.  No Severance Pay shall be paid later than the last day of the second taxable year of the Eligible Executive following the taxable

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year of the Eligible Executive in which the Eligible Executive’s “separation from service” (within the meaning of Section 409A) occurs.  To the extent required in order to avoid accelerated taxation and/or tax penalties under Section 409A, Severance Pay that would otherwise be payable during the six (6)-month period immediately following an Eligible Executive’s separation from service shall instead be paid on the first business day after the date that is six (6) months following such separation from service (or upon the Eligible Executive’s death, if earlier).   Neither the Company nor any of its employees or representatives shall have any liability to Eligible Executive with respect to Section 409A.

5.7          Any successor to the Company or to all or substantially all of the Company’s business and/or assets shall assume the Company’s obligations under the Plan and agree to perform the Company’s obligations under the Plan in the same manner and to the same extent as the Company would be required to perform such obligations in the absence of a successor or “Change in Control” (as defined in the Company’s Special Enhanced Severance Plan). For all purposes under the Plan, the term “Company” shall include any successor to the Company’s business and/or assets which executes and delivers an assumption agreement or which becomes bound by the terms of this Agreement by operation of law.

SECTION 6.         CLAIMS, INQUIRIES, APPEALS.

6.1          Applications for Benefits and Inquiries.  Any application for benefits, inquiries about the Plan or inquiries about present or future rights under the Plan must be submitted to the Plan Administrator in writing, as follows:

Plan Administrator

AdvancePierre Foods, Inc.

9987 Carver Rd., Suite 500

Blue Ash, OH 45242

Attention:  Senior Vice President, Human Resources

6.2          Denial of Claims.

(a)           In the event that any application for benefits is denied in whole or in part, the Plan Administrator must notify the applicant, in writing, of the denial of the application, and of the applicant’s right to review the denial.  The written notice of denial will be set forth in a manner designed to be understood by the Eligible Executive, and will include specific reasons for the denial, specific references to the Plan provision upon which the denial is based, a description of any information or material that the Plan Administrator needs to complete the review and an explanation of the Plan’s review procedure.

(b)           This written notice will be given to the Eligible Executive within ninety (90) days after the Plan Administrator receives the application, unless special circumstances require an extension of time, in which case, the Plan Administrator has up to an additional ninety (90) days for processing the application.  If an extension of time for processing is required, written notice of the extension will be furnished to the applicant before the end of the initial ninety (90)-day period.

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(c)           This notice of extension will describe the special circumstances necessitating the additional time and the date by which the Plan Administrator is to render his or her decision on the application.  If written notice of denial of the application for benefits is not furnished within the specified time, the application shall be deemed to be denied.  The applicant will then be permitted to appeal the denial in accordance with the Review Procedure described below.

(d)           Any person (or that person’s authorized representative) for whom an application for benefits is denied (or deemed denied), in whole or in part, may appeal the denial by submitting a request for a review to the Plan Administrator within sixty (60) days after the application is denied (or deemed denied).  The Plan Administrator will give the applicant (or his or her representative) an opportunity to review pertinent documents in preparing a request for a review and submit written comments, documents, records and other information relating to the claim.  A request for a review shall be in writing and shall be addressed to:

Plan Administrator

AdvancePierre Foods, Inc.

9987 Carver Rd., Suite 500

Blue Ash, OH 45242

Attention:  Senior Vice President, Human Resources

A request for review must set forth all of the grounds on which it is based, all facts in support of the request and any other matters that the applicant feels are pertinent.  The Plan Administrator may require the applicant to submit additional facts, documents or other material as he or she may find necessary or appropriate in making his or her review.

6.3          Decision on Review.  The Plan Administrator will act on each request for review within sixty (60) days after receipt of the request, unless special circumstances require an extension of time (not to exceed an additional sixty (60) days), for processing the request for a review.  If an extension for review is required, written notice of the extension will be furnished to the applicant within the initial sixty (60)-day period.  The Plan Administrator will give prompt, written notice of his or her decision to the applicant.  In the event that the Plan Administrator confirms the denial of the application for benefits in whole or in part, the notice will outline, in a manner calculated to be understood by the applicant, the specific Plan provisions upon which the decision is based.  If written notice of the Plan Administrator’s decision is not given to the applicant within the time prescribed in this Section 6.3 the application will be deemed denied on review.

6.4          Rules and Procedures.  The Plan Administrator may establish rules and procedures, consistent with the Plan and with ERISA, as necessary and appropriate in carrying out his or her responsibilities in reviewing benefit claims.  The Plan Administrator may require an applicant who wishes to submit additional information in connection with an appeal from the denial (or deemed denial) of benefits to do so at the applicant’s own expense.

6.5          Exhaustion of Remedies.  No legal action for benefits under the Plan may be brought until the claimant (a) has submitted a written application for benefits in accordance with the procedures described by Section 6.1 above; (b) has been notified by the Plan

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Administrator that the application is denied (or the application is deemed denied due to the Plan Administrator’s failure to act on it within the established time period); (c) has filed a written request for a review of the application in accordance with the appeal procedure described in Section 6.2 above; and (d) has been notified in writing that the Plan Administrator has denied the appeal (or the appeal is deemed to be denied due to the Plan Administrator’s failure to take any action on the claim within the time prescribed by Section 6.3 above).

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ADDENDUM TO THE ADVANCEPIERRE FOODS, INC.
2016 EXECUTIVE SEVERANCE PLAN

This addendum is provided to enable this document to serve as, and to satisfy the requirements applicable to, a summary plan description.  This addendum sets forth your rights under ERISA and provides general information regarding the Plan.

Your Rights under ERISA
(Employee Retirement Income Security Act of 1974, as amended)

As a participant in the Plan, you are entitled to certain rights and protections under ERISA.  ERISA provides that all Plan participants will be entitled to:

Receive Information About Your Plan and Benefits

·Examine, without charge, at the Plan Administrator’s office and at other specified locations, all Plan documents, including the Plan and a copy of the latest annual report (Form 5500 Series) filed by the Plan with the U.S. Department of Labor and available at the Public Disclosure Room of the Employee Benefits Security Administration.

·Obtain, upon written request to the Plan Administrator, copies of Plan documents, including the Plan and copies of the latest annual report (Form 5500 Series).  The Plan Administrator may require a reasonable charge for the copies.

Prudent Actions by Plan Fiduciaries

In addition to creating rights for Plan participants ERISA imposes duties upon the people who are responsible for the operation of the employee benefit plan.  The people who operate your Plan, called “fiduciaries” of the Plan, have a duty to do so prudently and in the interest of you and other Plan participants and beneficiaries.  No one, including your employer or any other person, may fire you or otherwise discriminate against you in any way to prevent you from obtaining a welfare benefit or exercising your rights under ERISA.

Enforce Your Rights

If your claim for a welfare benefit is denied or ignored, in whole or in part, you have a right to know why this was done, to obtain copies of documents relating to the decision without charge, and to appeal any denial, all within certain time schedules.

Under ERISA, there are steps you can take to enforce the above rights.  For instance, if you request a copy of the Plan documents or the latest annual report from the Plan and do not receive them within 30 days, you may file suit in a federal court.  In such a case, the court may require the Plan Administrator to provide the materials and pay you up to $110 a day until you receive the materials, unless the materials were not sent because of reasons beyond the control of the Plan Administrator.  If you have a claim for benefits which is denied or ignored, in whole or in part, you may file suit in a state or Federal court.  In addition, if you disagree with the Plan’s decision or lack thereof concerning the qualified status of a domestic relations order or a medical

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child support order, you may file suit in a Federal court.  If it should happen that the Plan fiduciaries misuse the Plan’s money or if you are discriminated against for asserting your rights, you may seek assistance from the U.S. Department of Labor, or you may file suit in a Federal court.  The court will decide who should pay court costs and legal fees.  If you are successful the court may order the person you have sued to pay these costs and fees.  If you lose, the court may order you to pay these costs and fees, for example, if it finds your claim is frivolous.

Assistance with Your Questions

If you have any questions about your Plan, you should contact the Plan Administrator.  If you have any questions about this statement or about your rights under ERISA, you should contact the nearest office of the Employee Benefits Security Administration, U.S. Department of Labor, listed in your telephone directory or the Division of Technical Assistance and Inquiries, Employee Benefits Security Administration, U.S. Department of Labor, 200 Constitution Avenue N.W., Washington, D.C. 20210.  You may also obtain certain publications about your rights and responsibilities under ERISA by calling the publications hotline of the Employee Benefits Security Administration.

General Information

The following additional details are provided to you for your information and possible use:

Name of Plan:	AdvancePierre Foods, Inc. 2016 Executive Severance Plan.
Type of Plan:	The Plan is an employee welfare benefit plan, providing for the payment of severance benefits. All benefits under the Plan are paid from the general assets of the Company.
Plan Year:	January 1 to December 31.
Recordkeeping:	The Plan and its records are kept on a calendar year basis, January 1 — December 31.
Source of Contributions:	The Plan is unfunded and the Company pays for the cost of coverage.
Plan Sponsor:	AdvancePierre Foods, Inc. 9987 Carver Rd., Suite 500 Blue Ash, OH 45242
Plan Administrator	Senior Vice President, Human Resources AdvancePierre Foods, Inc. 9987 Carver Rd., Suite 500

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	Blue Ash, OH 45242
Agent for Service of Legal Process	CT Corporation System Service may be made on the plan administrator.
Employer Identification Number:	80-0304279
Plan Number:	507

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EX-10.22

Exhibit 10.22

ADVANCEPIERRE FOODS INC. 401(K) RETIREMENT PLAN
AND ALL SUPPORTING FORMS HAVE BEEN PRODUCED FOR
MILLIMAN, INC.

ADVANCEPIERRE FOODS INC. 401(K) RETIREMENT PLAN

TABLE OF CONTENTS

ARTICLE I
DEFINITIONS
ARTICLE II
ADMINISTRATION
2.1	POWERS AND RESPONSIBILITIES OF THE EMPLOYER	23
2.2	DESIGNATION OF ADMINISTRATIVE AUTHORITY	23
2.3	ALLOCATION AND DELEGATION OF RESPONSIBILITIES	24
2.4	POWERS AND DUTIES OF THE ADMINISTRATOR	24
2.5	RECORDS AND REPORTS	25
2.6	APPOINTMENT OF ADVISERS	25
2.7	PAYMENT OF EXPENSES	25
2.8	CLAIMS PROCEDURE	26
2.9	CLAIMS REVIEW PROCEDURE	26
ARTICLE III
ELIGIBILITY
3.1	CONDITIONS OF ELIGIBILITY	27
3.2	EFFECTIVE DATE OF PARTICIPATION	27
3.3	DETERMINATION OF ELIGIBILITY	28
3.4	TERMINATION OF ELIGIBILITY	28
3.5	REHIRED EMPLOYEES AND BREAKS IN SERVICE	28
3.6	ELECTION NOT TO PARTICIPATE	29
3.7	OWNER-EMPLOYEE LIMITATION	30
3.8	OMISSION OF ELIGIBLE EMPLOYEE; INCLUSION OF INELIGIBLE EMPLOYEE	30
ARTICLE IV
CONTRIBUTION AND ALLOCATION
4.1	FORMULA FOR DETERMINING EMPLOYER CONTRIBUTION	30
4.2	PARTICIPANT’S SALARY REDUCTION ELECTION	32
4.3	TIME OF PAYMENT OF EMPLOYER CONTRIBUTION	37
4.4	ALLOCATION OF CONTRIBUTION AND USAGE OF FORFEITURES AND EARNINGS	37
4.5	ACTUAL DEFERRAL PERCENTAGE TEST	40
4.6	ADJUSTMENT TO ACTUAL DEFERRAL PERCENTAGE TEST	43
4.7	ACTUAL CONTRIBUTION PERCENTAGE TEST	46
4.8	ADJUSTMENT TO ACTUAL CONTRIBUTION PERCENTAGE TEST	50
4.9	MAXIMUM ANNUAL ADDITIONS	53
4.10	ADJUSTMENT FOR EXCESS ANNUAL ADDITIONS	55
4.11	PLAN-TO-PLAN TRANSFERS (OTHER THAN ROLLOVERS) FROM QUALIFIED PLANS	56
4.12	ROLLOVERS FROM OTHER PLANS	57

4.13	PARTICIPANT DIRECTED INVESTMENTS	59
4.14	QUALIFIED MILITARY SERVICE	59
ARTICLE V
VALUATIONS
5.1	VALUATION OF THE TRUST FUND	61
5.2	METHOD OF VALUATION	62
ARTICLE VI
DETERMINATION AND DISTRIBUTION OF BENEFITS
6.1	DETERMINATION OF BENEFITS UPON RETIREMENT	62
6.2	DETERMINATION OF BENEFITS UPON DEATH	62
6.3	DISABILITY RETIREMENT BENEFITS	64
6.4	DETERMINATION OF BENEFITS UPON TERMINATION	64
6.5	DISTRIBUTION OF BENEFITS	66
6.6	DISTRIBUTION OF BENEFITS UPON DEATH	68
6.7	TIME OF DISTRIBUTION	68
6.8	REQUIRED MINIMUM DISTRIBUTIONS	68
6.9	DISTRIBUTION FOR MINOR OR INCOMPETENT INDIVIDUAL	74
6.10	LOCATION OF PARTICIPANT OR BENEFICIARY UNKNOWN	74
6.11	PRE-RETIREMENT DISTRIBUTION OF EMPLOYER CONTRIBUTIONS	74
6.12	ADVANCE DISTRIBUTION FOR HARDSHIP	75
6.13	QUALIFIED DOMESTIC RELATIONS ORDER DISTRIBUTION	77
6.14	DIRECT ROLLOVER	77
6.15	TRANSFER OF ASSETS FROM A MONEY PURCHASE PLAN	79
6.16	CORRECTIVE DISTRIBUTIONS	79
ARTICLE VII
AMENDMENT, TERMINATION, MERGERS AND LOANS
7.1	AMENDMENT	79
7.2	TERMINATION	80
7.3	MERGER, CONSOLIDATION OR TRANSFER OF ASSETS	81
7.4	LOANS TO PARTICIPANTS	81
ARTICLE VIII
TOP-HEAVY
8.1	TOP-HEAVY PLAN REQUIREMENTS	82
8.2	DETERMINATION OF TOP-HEAVY STATUS	83
ARTICLE IX
MISCELLANEOUS
9.1	PARTICIPANT’S RIGHTS	85
9.2	ALIENATION OF BENEFITS	85
9.3	CONSTRUCTION AND INTERPRETATION OF PLAN	86
9.4	GENDER AND NUMBER	86

9.5	LEGAL ACTION	87
9.6	PROHIBITION AGAINST DIVERSION OF FUNDS	87
9.7	EMPLOYER’S AND TRUSTEE’S PROTECTIVE CLAUSE	87
9.8	INSURER’S PROTECTIVE CLAUSE	87
9.9	RECEIPT AND RELEASE FOR PAYMENTS	88
9.10	ACTION BY THE EMPLOYER	88
9.11	NAMED FIDUCIARIES AND ALLOCATION OF RESPONSIBILITY	88
9.12	HEADINGS	89
9.13	APPROVAL BY INTERNAL REVENUE SERVICE	89
9.14	ELECTRONIC MEDIA	89
9.15	PLAN CORRECTION	89
9.16	UNIFORMITY	90
ARTICLE X
PARTICIPATING EMPLOYERS
10.1	ADOPTION BY OTHER EMPLOYERS	90
10.2	REQUIREMENTS OF PARTICIPATING EMPLOYERS	90
10.3	DESIGNATION OF AGENT	90
10.4	EMPLOYEE TRANSFERS	90
10.5	PARTICIPATING EMPLOYER CONTRIBUTION AND FORFEITURES	91
10.6	AMENDMENT	91
10.7	DISCONTINUANCE OF PARTICIPATION	91
10.8	ADMINISTRATOR’S AUTHORITY	92
10.9	PROVISIONS APPLIED SEPARATELY (OR JOINTLY) FOR PARTICIPATING NON-AFFILIATED EMPLOYERS	92
10.10	TOP-HEAVY APPLIED SEPARATELY FOR PARTICIPATING NON-AFFILIATED EMPLOYERS	92
10.11	HIGHLY COMPENSATED EMPLOYEE STATUS	93
10.12	SERVICE	93
10.13	REQUIRED MINIMUM DISTRIBUTIONS	93

ADVANCEPIERRE FOODS INC. 401(K) RETIREMENT PLAN

THIS PLAN, is hereby amended and restated by AdvancePierre Foods Inc. (herein referred to as the “Employer”).

WITNESSETH:

WHEREAS, the Employer heretofore established a Profit Sharing Plan effective July 1, 1998, (hereinafter called the “Effective Date”) known as Pierre Foods, Inc. 401(k) Retirement Plan and which plan shall hereinafter be known as AdvancePierre Foods Inc. 401(k) Retirement Plan (herein referred to as the “Plan”) in recognition of the contribution made to its successful operation by its Employees and for the exclusive benefit of its Eligible Employees; and

WHEREAS, under the terms of the Plan, the Employer has the ability to amend the Plan, provided the Trustee joins in such amendment if the provisions of the Plan affecting the Trustee are amended; and

WHEREAS, Pierre Foods, Inc. acquired the stock of Advance Brands, LLC and on December 31, 2011 merged the Advance Brands 401(k) Retirement Savings Plan into the Pierre Foods, Inc. 401(k) Retirement Plan, now known as the AdvancePierre Foods, Inc. 401(k) Retirement Plan; and

WHEREAS, Pierre Foods, Inc. acquired the stock of Advance Food Company, Inc. and on December 31, 2011 merged the Advance Food Company, Inc. 401(k) Salary Reduction Plan & Trust into the Pierre Foods, Inc. 401(k) Retirement Plan, now known as the AdvancePierre Foods, Inc. 401(k) Retirement Plan; and

WHEREAS, Pierre Foods, Inc. acquired the stock of Barber Foods and on December 31, 2011 merged the Barber Foods Retirement Savings Plan into the Pierre Foods, Inc. 401(k) Retirement Plan, now known as the AdvancePierre Foods, Inc. 401(k) Retirement Plan; and

WHEREAS, notwithstanding the following provisions of the Plan, participants in the aforementioned plans who terminated with account balances in such plans will be governed by the terms of their applicable plans.

NOW, THEREFORE, effective January 1, 2012, except as otherwise provided herein, the Employer in accordance with the provisions of the Plan pertaining to amendments thereof, hereby amends the Plan in its entirety and restates the Plan to provide as follows:

ARTICLE I
DEFINITIONS

1.1“Account” means any separate notational account established and maintained by the Administrator for each Participant under the Plan. The term “Participant’s Account” or “Participant’s Account Balance” generally means the sum of all Accounts being maintained for the Participant, which represents the Participant’s total interest in the Plan. Section 6.8 contains a definition of “Participant’s Account Balance” for purposes of that Section. To the extent applicable, a Participant may have any (or all) of the following notational Accounts:

1

(a)the After-Tax Voluntary Contribution Account

(b)the Elective Deferral Account that shall consist of the sub-Accounts listed below. Unless specifically stated otherwise, any reference to a Participants Elective Deferral Account will refer to both of these sub-Accounts

(1)the Pre-Tax Elective Deferral Account

(2)the Roth Elective Deferral Account

(c)the Nonelective Contribution Account

(d)the Qualified Matching Contribution Account, which includes ADP Test Safe Harbor Matching Contributions

(e)the Qualified Nonelective Contribution Account, which includes ADP Test Safe Harbor Nonelective Contributions

(f)the Rollover Account

(g)the Transfer Account

(h)any other account, including an overlapping account or sub-account, necessary for the administration of the Plan

1.2“ACP” means the actual contribution percentage that is equal to, for a specific group of Participants (either Highly Compensated Employees or Nonhighly Compensated Employees) for a Plan Year, the average of the ACRs (calculated separately for each Participant in such group). The ACP for each group shall be calculated to the nearest one-hundredth of one percent.

For purposes of computing an ACP, a Participant is an Eligible Employee who is eligible. In addition, if an Employee contribution is required as a condition of participation in the Plan, any Employee who would be a Participant in the Plan if such Employee made such a contribution shall be treated (for purposes of the ACP test) as an eligible Participant on behalf of whom no Employee contributions are made. However, if a Participant has no 414(s) Compensation for the Plan Year, then such Participant shall be disregarded for purposes of calculating the ACP of a group.

For purposes of the above paragraph, the term “specific Plan Year” means, for Participants who are Highly Compensated Employees, the Plan Year being tested. If the current year testing method is being used, then the term “specific Plan Year” means, for Participants who are Nonhighly Compensated Employees, the Plan Year being tested. If the prior year testing method is being used, then the term “specific Plan Year” means, for Participants who are Nonhighly Compensated Employees, the Plan Year prior to the Plan Year being tested.

1.3“ACP Test” means the actual contribution percentage test determined pursuant to Section 4.7.

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1.4“ACR” means the actual contribution ratio of each Participant, that is a ratio (expressed as a percentage) equal to (1) the Contribution Percentage Amounts of such Participant for such Plan Year, to (2) such Participant’s 414(s) Compensation for such Plan Year.

For purposes of determining a Participant’s ACR, After-Tax Voluntary Contributions are considered to have been made in the Plan Year in which contributed to the Plan. Qualified Matching Contributions and Qualified Nonelective Contributions will be considered made for a Plan Year if made no later than the end of the twelve (12) month period beginning on the date after the close of the Plan Year.

The ACR for each Participant shall be calculated to the nearest one-hundredth of one percent.

1.5“Act” means the Employee Retirement Income Security Act of 1974, as it may be amended from time to time.

1.6“Administrator” means the Employer unless another person or entity has been designated by the Employer pursuant to Section 2.2 to administer the Plan on behalf of the Employer. “Administrator” also includes any Qualified Termination Administrator (QTA) that has assumed the responsibilities of the Administrator in accordance with guidelines set forth by the Department of Labor.

1.7“ADP” means the actual deferral percentage that is equal to, for a specific group of Participants (either Highly Compensated Employees or Nonhighly Compensated Employees) for a Plan Year, the average of the ADRs (calculated separately for each Participant in such group). The ADP for each group shall be calculated to the nearest one-hundredth of one percent.

For purposes of computing an ADP, a Participant is an Eligible Employee who is eligible to make Elective Deferrals pursuant to Section 4.2 (whether or not a deferral election was made or suspended pursuant to Section 4.2(e)) allocated to the Participant’s Elective Deferral Account for a “specific Plan Year.” However, if a Participant has no 414(s) Compensation for the Plan Year, then such Participant shall be disregarded for purposes of calculating the ADP of a group.

For purposes of the above paragraph, the term “specific Plan Year” means, for Participants who are Highly Compensated Employees, the Plan Year being tested. If the current year testing method is being used, then the term “specific Plan Year” means, for Participants who are Nonhighly Compensated Employees, the Plan Year being tested. If the prior year testing method is being used, then the term “specific Plan Year” means, for Participants who are Nonhighly Compensated Employees, the Plan Year prior to the Plan Year being tested.

1.8“ADP Test” means the actual deferral percentage test determined pursuant to Section 4.5.

1.9“ADP Test Safe Harbor Contribution” means an Employer contribution that is used to satisfy the safe harbor methods permitted by Code Sections 401(k)(12) and 401(m)(11). The Administrator may allocate ADP Test Safe Harbor Contributions into either the Qualified Matching Contribution Account (if a Basic or Enhanced Matching Contribution is made) or the Qualified Nonelective Contribution Account (if a Nonelective Contribution is made). ADP Test Safe Harbor Contributions are nonforfeitable when made and are subject to the distribution restrictions of Section 4.2(d), except that no amount may be distributed on account of financial hardship.

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1.10“ADR” means the actual deferral ratio of each Participant, that is a ratio (expressed as a percentage) equal to (1) the amount of Employer contributions actually paid over to the Plan on behalf of such Participant for such Plan Year, to (2) such Participant’s 414(s) Compensation for such Plan Year.

For purposes of this definition of ADR, Employer contributions actually paid over to the Plan on behalf of any Participant shall include: (a) any Elective Deferrals (other than Catch-Up Contributions) made pursuant to the Participant’s deferral election (including Excess Deferrals of any Highly Compensated Employee), but excluding (1) Excess Deferrals of any Nonhighly Compensated Employee that arise solely from Elective Deferrals made under this Plan or any other plans maintained by the Employer, and (2) Elective Deferrals that are taken into account in the ACP Test set forth in Section 4.7 (provided that the ADP Test is satisfied both with and without the exclusion of these Elective Deferrals); and (b) at the election of the Employer, Qualified Nonelective Contributions and Qualified Matching Contributions to the extent such contributions are not used to satisfy the ACP Test, as well as any contributions authorized by (and to the extent prescribed by) Section 4.6(c).

For purposes of computing a Participant’s ADR, an Eligible Employee who would be a Participant but for the failure to make Elective Deferrals shall be treated as a Participant on whose behalf no Elective Deferrals are made.

The ADR for each Participant shall be calculated to the nearest one-hundredth of one percent.

1.11“Affiliated Employer” means any corporation which is a member of a controlled group of corporations (as defined in Code Section 414(b)) which includes the Employer; any trade or business (whether or not incorporated) which is under common control (as defined in Code Section 414(c)) with the Employer; any organization (whether or not incorporated) which is a member of an affiliated service group (as defined in Code Section 414(m)) which includes the Employer; and any other entity required to be aggregated with the Employer pursuant to Regulations under Code Section 414(o).

1.12“After-Tax Voluntary Contribution” means any Employee contribution that is voluntarily made to the Plan by the Participant pursuant to Section 4.13.

1.13“After-Tax Voluntary Contribution Account” means the separate account established and maintained by the Administrator for each Participant with respect to the Participant’s total interest in the Plan resulting from After-Tax Voluntary Contributions, and gains and losses attributable to those amounts. Amounts in the After-Tax Voluntary Contribution Account are nonforfeitable when made and are distributable pursuant to the provisions of the Plan.

1.14“Anniversary Date” means the last day of the Plan Year.

1.15“Annual Additions” means, for purposes of applying the limitations of Code Section 415, the sum credited to a Participant’s Accounts for any Limitation Year of (1) Employer contributions, (2) Employee contributions, (3) forfeitures, (4) amounts allocated to an individual medical account, as defined in Code Section 415(l)(2) which is part of a pension or annuity plan maintained by the Employer, (5) amounts derived from contributions paid or accrued which are attributable to post-retirement medical benefits allocated to the separate account of a key employee (as defined in Code

4

Section 419A(d)(3)) under a welfare benefit plan (as defined in Code Section 419(e)) maintained by the Employer and (6) allocations under a simplified employee pension plan.

Annual Additions do not include the transfers of funds from one plan to another. In addition, the following are not Annual Additions for the purposes of this definition: (1) rollover contributions as defined in Code Sections 402(c), 403(a)(4), 403(b)(8), 408(d)(3) and 457(e)(16); (2) repayments of loans made to a Participant from the Plan; (3) repayment of distributions received by an Employee pursuant to Code Section 411(a)(7)(B) (cash-outs); (4) repayment of distributions received by an Employee pursuant to Code Section 411(a)(3)(D) (mandatory contributions); (5) Catch-Up Contributions and (6) employee contributions to a simplified employee pension excludable from gross income under Code Section 408(k)(6).

1.16“Beneficiary” means the person (or entity) to whom the share of a deceased Participant’s interest in the Plan is payable. Section 6.8 contains a definition of “designated Beneficiary” for purposes of that Section.

1.17“Catch-Up Contribution” means, effective January 1, 2002, Elective Deferrals made to the Plan by a Catch-Up Eligible Participant during any taxable year of such Participant that are in excess of:

(a)a statutory dollar limit on Elective Deferrals or Annual Additions as provided in Code Sections 401(a)(30), 402(h), 403(b), 408, 415(c), or 457(b)(2) (without regard to Code Section 457(b)(3)), as applicable;

(b)a Plan limit on Elective Deferrals which is not a limit provided in (a) above; or

(c)if the ADP Test is applicable, then the limit imposed by the ADP Test under Code Section 401(k)(3), in which Excess Contributions would otherwise be distributed pursuant to Section 4.6(b) to a Highly Compensated Employee who is a Catch-Up Eligible Participant.

Catch-Up Contributions for a Participant for a Participant’s taxable year may not exceed the dollar limit on Catch-Up Contributions under Code Section 414(v)(2)(B)(i) for the Participant’s taxable year. The dollar limit on Catch-Up Contributions under 414(v)(2)(B)(i) is $1,000 for taxable years beginning in 2002, increasing by $1,000 for each year thereafter up to $5,000 for taxable years beginning in 2006 and later years. After 2006, the $5,000 limit will be adjusted by the Secretary of the Treasury for cost-of-living increases under Code Section 414(v)(2)(C). Any such adjustments will be in multiples of $500.

1.18“Catch-Up Eligible Participant” means, effective January 1, 2002, a Participant who:

(a)is eligible to defer Compensation pursuant to Section 4.2; and

(b)will attain age 50 or over by the end of the Participant’s taxable year.

1.19“Code” means the Internal Revenue Code of 1986, as amended or replaced from time to time.

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1.20“Compensation” means, with respect to any Participant and except as otherwise provided herein, such Participant’s wages as defined in Code Section 3401(a) and all other payments of compensation by the Employer (in the course of the Employer’s trade or business) for a Plan Year (the “determination period”) for which the Employer is required to furnish the Participant a written statement under Code Sections 6041(d), 6051(a)(3) and 6052 (Form W-2 wages). Compensation must be determined without regard to any rules under Code Section 3401(a) that limit the remuneration included in wages based on the nature or location of the employment or the services performed (such as the exception for agricultural labor in Code Section 3401(a)(2)). Compensation for any Self-Employed Individual shall be equal to such individual’s Earned Income.

For purposes of this Section, the determination of Compensation shall be made by:

(a)excluding (even if includible in gross income) reimbursements or other expense allowances, fringe benefits (cash or noncash), moving expenses, deferred compensation (equity and non equity), welfare benefits.

(b)including amounts which are contributed by the Employer pursuant to a salary reduction agreement and which are not includible in the gross income of the Participant under Code Sections 125, 132(f)(4), 402(e)(3), 402(h)(1)(B), 403(b) or 457(b), and employee contributions described in Code Section 414(h)(2) that are treated as Employer contributions. For this purpose, amounts not includible in gross income under Code Section 125 shall be deemed to include any amounts not available to a Participant in cash in lieu of group health coverage because the Participant is unable to certify that the Participant has other health coverage, provided the Employer does not request or collect information regarding the Participant’s other health coverage as part of the enrollment process for the health plan.

(c)excluding pre-participation Compensation paid during the Plan Year while not a Participant in the component of the Plan for which Compensation is being used.

(d)including Post-Severance Compensation.

Compensation in excess of $200,000 (or such other amount provided in the Code) shall be disregarded for all purposes other than for purposes of salary deferral elections pursuant to Section 4.2. Such amount shall be adjusted for increases in the cost-of-living in accordance with Code Section 401(a)(17)(B), except that the dollar increase in effect on January 1 of any calendar year shall be effective for the Plan Year beginning with or within such calendar year. For any “determination period” of less than twelve (12) months, the Compensation limit shall be an amount equal to the Compensation limit for the calendar year in which the “determination period” begins multiplied by the ratio obtained by dividing the number of full months in the short “determination period” by twelve (12). A “determination period” is not less than twelve (12) months solely because a Participant’s Compensation does not include Compensation paid during a “determination period” while the Participant was not a Participant in the Plan (or a component of the Plan).

If any Employees are excluded from the Plan (or from any component of the Plan), then Compensation for any such Employees who become eligible or cease to be eligible to participate in the

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Plan (or in the component of the Plan) during a Plan Year shall only include Compensation while such Employees are Eligible Employees of the Plan (or of such component of the Plan).

For purposes of this Section, if the Plan is a plan described in Code Section 413(c) or 414(f) (a plan maintained by more than one Employer), the limitation applies separately with respect to the Compensation of any Participant from each Employer maintaining the Plan.

If, in connection with the adoption of any amendment, the definition of Compensation has been modified, then, except as otherwise provided herein, for Plan Years prior to the Plan Year which includes the adoption date of such amendment, Compensation means compensation determined pursuant to the terms of the Plan then in effect.

1.21“Contract” or “Policy” means any life insurance policy, retirement income policy or annuity contract (group or individual) issued pursuant to the terms of the Plan. In the event of any conflict between the terms of this Plan and the terms of any contract purchased hereunder, the Plan provisions shall control.

1.22“Contribution Percentage Amounts” means the sum of any Matching Contributions which are ADP Test Safe Harbor Contributions that are permitted by Code Sections 401(k)(12) and 401(m)(11), and are made pursuant to Section 4.1(b) (to the extent such Matching Contributions are used to satisfy the ACP Test); Qualified Matching Contributions (to the extent such Qualified Matching Contributions are not used to satisfy the ADP Test) and Qualified Nonelective Contributions (to the extent not used to satisfy the ADP Test), as well as any contributions authorized by (and to the extent prescribed by) Section 4.8(g). In addition, Contribution Percentage Amounts may include Elective Deferrals, provided the ADP Test is met before the Elective Deferrals are used in the ACP Test and continues to be met following the exclusion of those Elective Deferrals that are used to meet the ACP Test.

1.23“Custodian” means a person or entity that has custody of all or any portion of the Plan assets.

1.24“Designated Investment Alternative” means a specific investment identified by name by the Employer (or such other Fiduciary who has been given the authority to select investment options) as an available investment under the Plan to which Plan assets may be invested by the Trustee pursuant to the investment direction of a Participant.

1.25“Directed Account” means that portion of a Participant’s interest in the Plan with respect to which the Participant has directed the investment in accordance with the Participant Direction Procedures.

1.26“Directed Investment Option” means a Designated Investment Alternative and any other investment permitted by the Plan and the Participant Direction Procedures to which Plan assets may be invested by the Trustee pursuant to the investment direction of a Participant.

1.27“Disability” means a physical or mental condition of a Participant resulting from bodily injury, disease, or mental disorder which renders such Participant incapable of continuing usual and customary employment with the Employer. The disability of a Participant shall be determined by a licensed physician. The determination shall be applied uniformly to all Participants.

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1.28“Early Retirement Date” means the first day of the month (prior to the Normal Retirement Date) coinciding with or next following the date on which a Participant attains age 55, and has completed at least 5 Periods of Service for vesting with the Employer (“early retirement age”).

A Participant who separates from service after satisfying any service requirement but before satisfying the age requirement for “early retirement age” and who thereafter reaches the age requirement contained herein shall be entitled to receive benefits under this Plan (other than any accelerated vesting and allocations of Employer contributions) as though the requirements for “early retirement age” had been satisfied.

1.29“Earned Income” means with respect to a Self-Employed Individual, the net earnings from self-employment in the trade or business with respect to which the Plan is established, for which the personal services of the individual are a material income-producing factor. Net earnings will be determined without regard to items not included in gross income and the deductions allocable to such items. Net earnings are reduced by contributions by the Self-Employed Individual to a qualified Plan to the extent deductible under Code Section 404. In addition, net earnings shall be determined with regard to the deduction allowed to the Self-Employed Individual by Code Section 164(f).

If any combination of bonuses, commissions, tips, overtime, moving expenses, fringe benefits, or any other element of compensation is excluded from Compensation for the purpose of determining any contribution, then for the purpose of determining the amount of such contribution on behalf of any Self-Employed Individual, such person’s Earned Income will be reduced in the same proportion that the “includible compensation” of “common law participants” bears to the “total compensation” of all “common law participants.”

For purposes of the preceding paragraph, “common law participant” means a Participant who is neither a Highly Compensated Employee nor a Self-Employed Individual, “includible compensation” means the amount of Compensation taken into account in determining the amount of such contribution for “common law participants,” and “total compensation” means the amount of Compensation that would have been taken into account in determining such contribution for “common law participants” if (1) no element of Compensation had been excluded in determining such contribution, and (2) all of the following are included in Compensation: any amount which is contributed by the Employer at the election of the Participant pursuant to a salary reduction agreement and which is not includible in the gross income of the Participant by reason of Code Sections 125, 132(f)(4), 402(e)(3), 402(h)(1)(B), 403(b) or 457(b), and employee contributions described in Code Section 414(h)(2) that are treated as Employer contributions.

However, to the extent that the amount of “includible compensation” for “common law participants” includes any amount which is contributed by the Employer at the election of the Participant pursuant to a salary reduction agreement and which is not includible in the gross income of the Participant by reason of Code Sections 125, 132(f)(4), 402(e)(3), 402(h)(1)(B), 403(b) or 457(b), and employee contributions described in Code Section 414(h)(2) that are treated as Employer contributions, then those amounts shall be added back to Earned Income after making the adjustment described in the preceding paragraph.

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1.30“Elective Deferral” means any Employer contributions made to the Plan at the election of the Participant in lieu of cash Compensation pursuant to Section 4.2. With respect to any taxable year, a Participant’s Elective Deferrals is the sum of all employer contributions made on behalf of such Participant pursuant to an election to defer under any qualified cash or deferred arrangement (“CODA”) described in Code Section 401(k), any salary reduction simplified employee pension described in Code Section 408(k)(6), any SIMPLE IRA plan described in Code Section 408(p) and any plan described under Code Section 501(c)(18), and any employer contributions made on the behalf of a Participant for the purchase of an annuity contract under Code Section 403(b) pursuant to a salary reduction agreement. The term “Elective Deferrals” includes Pre-Tax Elective Deferrals and Roth Elective Deferrals. Elective Deferrals shall not include any deferrals properly distributed as excess Annual Additions pursuant to Section 4.10(a).

1.31“Elective Deferral Account” means the separate account established and maintained by the Administrator for each Participant with respect to the Participant’s total interest in the Plan resulting from Elective Deferrals. Amounts in the Elective Deferral Account are nonforfeitable when made and are subject to the distribution restrictions of Section 4.2(d). The Elective Deferral Account may consist of a Pre-Tax Elective Deferral Account and a Roth Elective Deferral Account. Unless specifically stated otherwise, any reference to a Participant’s Elective Deferral Account will refer to both of these sub-Accounts.

1.32“Eligible Employee” means any Employee, except as provided below, and except as provided in any other particular provision for the limited purposes of that provision (e.g., ADP test). The following Employees shall not be eligible to participate in this Plan:

(a)Employees of Affiliated Employers, unless such Affiliated Employers have specifically adopted this Plan in writing.

(b)An individual shall not be an Eligible Employee if such individual is not reported on the payroll records of the Employer as a common law employee. In particular, it is expressly intended that individuals not treated as common law employees by the Employer on its payroll records and out-sourced workers, are neither Employees nor Eligible Employees, and are excluded from Plan participation even if a court or administrative agency determines that such individuals are common law employees and not independent contractors. However, this paragraph shall not apply to partners or other Self-Employed Individuals unless the Employer treats them as independent contractors.

(c)Unless or until otherwise provided, Employees who became Employees as the result of a “Code Section 410(b)(6)(C) transaction” will not be Eligible Employees until the expiration of the transition period beginning on the date of the transaction and ending on the last day of the first Plan Year beginning after the date of the transaction. A Code Section 410(b)(6)(C) transaction is an asset or stock acquisition, merger, or similar transaction involving a change in the Employer of the Employees of a trade or business that is subject to the special rules set forth in Code Section 410(b)(6)(C).

(d)Employees who are Leased Employees.

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(e)Employees whose employment is governed by the terms of a collective bargaining agreement between Employee representatives (within the meaning of Code Section 7701(a)(46)) and the Employer under which retirement benefits were the subject of good faith bargaining between the parties, unless such agreement expressly provides for coverage in this Plan.

1.33“Employee” means any common law employee, Self-Employed Individual, Leased Employee or other person to the extent that the Code treats such an individual as an employee of the Employer for purposes of the Plan, such as (for certain purposes) any person who is employed by an Affiliated Employer.

1.34“Employer” means AdvancePierre Foods Inc. and any successor which shall maintain this Plan; and any predecessor which has maintained this Plan. The Employer is a corporation, with principal offices in the State of Ohio. In addition, where appropriate, the term Employer shall include any Participating Employer.

1.35“Excess Aggregate Contributions” means, with respect to any Plan Year, the excess of:

(a)The aggregate Contribution Percentage Amounts actually made on behalf of Participants who are Highly Compensated Employees for such Plan Year and taken into account in computing the numerator of the ACR, over

(b)The maximum Contribution Percentage Amounts permitted by the ACP Test of Section 4.7(a) (determined by hypothetically reducing contributions made on behalf of Participants who are Highly Compensated Employees in order of their ACRs beginning with the highest of such ACRs).

Such determination shall be made after first taking into account corrections of any Excess Deferrals pursuant to Section 4.2 and then taking into account any adjustments of any Excess Contributions pursuant to Section 4.6.

1.36“Excess Contributions” means, with respect to a Plan Year, the excess of Elective Deferrals made on behalf of Participants who are Highly Compensated Employees for the Plan Year over the maximum amount of such contributions permitted under Section 4.5(a) (determined by hypothetically reducing contributions made on behalf of Participants who are Highly Compensated Employees in order of the ADRs beginning with the highest of such ADRs). Excess Contributions shall be treated as an Annual Addition pursuant to Section 1.15.

1.37“Excess Deferrals” shall mean those Elective Deferrals of a Participant that either (1) are made during the Participant’s taxable year and which exceed the dollar limitation under Code Section 402(g) (including, if applicable, the dollar limitation on Catch-Up Contributions defined in Code Section 414(v)) for such year; or (2) are made during a calendar year and exceed the dollar limitation under Code Section 402(g) (including, if applicable, the dollar limitation on Catch-Up Contributions defined in Code Section 414(v)) for the Participant’s taxable year beginning in such calendar year, counting only Elective Deferrals made under this Plan and any other plan, contract or arrangement maintained by the Employer.

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1.38“Fiduciary” means any person who (a) exercises any discretionary authority or discretionary control respecting management of the Plan or exercises any authority or control respecting management or disposition of its assets, (b) renders investment advice for a fee or other compensation, direct or indirect, with respect to any monies or other property of the Plan or has any authority or responsibility to do so, or (c) has any discretionary authority or discretionary responsibility in the administration of the Plan.

1.39“Fiscal Year” means the Employer’s accounting year of 12 months commencing on January 1 of each year and ending the following December 31.

1.40“Forfeiture” means that portion of a Participant’s Account that is not Vested, and which becomes a Forfeiture at the time described below:

The earlier of:

(a)the distribution of the entire Vested portion of the Participant’s Account of a Participant who has severed employment with the Employer. For purposes of this provision, if the Participant has a Vested benefit of zero (determined without regard to the Participant’s Qualified Voluntary Employee Contribution Account or Rollover Account), then such Participant shall be deemed to have received a distribution of such Vested benefit as of the date on which the severance of employment occurs, or

(b)the last day of the Plan Year in which a Participant who has severed employment with the Employer incurs five (5) consecutive 1-Year Breaks in Service.

In addition, the term “Forfeiture” shall also include amounts deemed to be Forfeitures pursuant to any other provisions of this Plan.

Regardless of the preceding provisions, if a Participant is eligible to share in the allocation of Forfeitures in the year in which the Forfeiture would otherwise occur, then the Forfeiture will not occur until the end of the subsequent Plan Year.

For purposes of this Plan, any Forfeiture will be disposed of in the Plan Year in which the Forfeiture arises.

1.41“Former Employee” means an Employee who had a severance from employment with the Employer or an Affiliated Employer.

1.42“415 Compensation” with respect to any Participant means such Participant’s wages as defined in Code Section 3401(a) and all other payments of compensation by the Employer (in the course of the Employer’s trade or business) for a Plan Year for which the Employer is required to furnish the Participant a written statement under Code Sections 6041(d), 6051(a)(3) and 6052. 415 Compensation must be determined without regard to any rules under Code Section 3401(a) that limit the remuneration included in wages based on the nature or location of the employment or the services performed (such as the exception for agricultural labor in Code Section 3401(a)(2)). 415 Compensation for any Self-Employed Individual shall be equal to such individual’s Earned Income.

Notwithstanding the above, the determination of 415 Compensation shall be made by:

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(a)including any Elective Deferrals, and any amount which is contributed by the Employer at the election of the Participant pursuant to a salary reduction agreement and which is not includible in the gross income of the Participant by reason of Code Sections 125, 132(f)(4), 402(e)(3), 402(h)(1)(B), 403(b) or 457(b), and employee contributions described in Code Section 414(h)(2) that are treated as Employer contributions. For this purpose, amounts not includible in gross income under Code Section 125 shall be deemed to include any amounts not available to a Participant in cash in lieu of group health coverage because the Participant is unable to certify that the Participant has other health coverage, provided the Employer does not request or collect information regarding the Participant’s other health coverage as part of the enrollment process for the health plan.

(b)including Post-Severance Compensation.

1.43“414(s) Compensation” means 415 Compensation or any other definition of compensation that satisfies the nondiscrimination requirements of Code Section 414(s) and the Regulations thereunder. The period for determining 414(s) Compensation must be either the Plan Year or the calendar year ending with or within the Plan Year. An Employer may further limit the period taken into account to that part of the Plan Year or calendar year in which an Employee was a Participant in the component of the Plan being tested. The period used to determine 414(s) Compensation must be applied uniformly to all Participants for the Plan Year.

1.44“Highly Compensated Employee” means an Employee described in Code Section 414(q) and the Regulations thereunder, and generally means any Employee who:

(a)was a “five percent owner” as defined in Section 1.47(b) at any time during the “determination year” or the “look-back year”; or

(b)for the “look-back year” had 415 Compensation from the Employer in excess of $80,000 and was in the Top-Paid Group for the “look-back year.” The $80,000 amount is adjusted at the same time and in the same manner as under Code Section 415(d), except that the base period is the calendar quarter ending September 30, 1996..

The “determination year” means the Plan Year for which testing is being performed, and the “look-back year” means the immediately preceding twelve (12) month period.

In determining who is a Highly Compensated Employee, Employees who are nonresident aliens and who received no earned income (within the meaning of Code Section 911(d)(2)) from the Employer constituting United States source income within the meaning of Code Section 861(a)(3) shall not be treated as Employees. If an Employee who is a nonresident alien has U.S. source income, that Employee is treated as satisfying this definition if all of such Employee’s U.S. source income from the Employer is exempt from U.S. income tax under an applicable income tax treaty. Additionally, all Affiliated Employers shall be taken into account as a single employer and Leased Employees within the meaning of Code Sections 414(n)(2) and 414(o)(2) shall be considered Employees unless such Leased Employees are covered by a plan described in Code Section 414(n)(5) and are not covered in any qualified plan maintained by the Employer. The exclusion of Leased Employees for this purpose shall be applied on a uniform and consistent basis for all of the Employer’s retirement plans. Highly Compensated Former Employees shall be treated as Highly

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Compensated Employees without regard to whether they performed services during the “determination year.”

1.45“Highly Compensated Participant” means, for a particular Plan Year, a Participant who meets the definition of a Highly Compensated Employee in effect for that Plan Year.

1.46“Hour of Service” means (1) each hour for which an Employee is directly or indirectly compensated or entitled to Compensation by the Employer for the performance of duties (these hours will be credited to the Employee for the computation period in which the duties are performed); (2) each hour for which an Employee is directly or indirectly compensated or entitled to compensation by the Employer (irrespective of whether the employment relationship has terminated) for reasons other than performance of duties (such as vacation, holidays, sickness, jury duty, disability, lay-off, military duty or leave of absence) during the applicable computation period (these hours will be calculated and credited pursuant to Department of Labor regulation 2530.200b-2, which is incorporated herein by reference); (3) each hour for which back pay is awarded or agreed to by the Employer without regard to mitigation of damages (these hours will be credited to the Employee for the computation period or periods to which the award or agreement pertains rather than the computation period in which the award, agreement or payment is made). The same Hours of Service shall not be credited both under (1) or (2), as the case may be, and under (3).

Notwithstanding (2) above, (i) no more than 501 Hours of Service are required to be credited to an Employee on account of any single continuous period during which the Employee performs no duties (whether or not such period occurs in a single computation period); (ii) an hour for which an Employee is directly or indirectly paid, or entitled to payment, on account of a period during which no duties are performed is not required to be credited to the Employee if such payment is made or due under a plan maintained solely for the purpose of complying with applicable worker’s compensation, or unemployment compensation or disability insurance laws; and (iii) Hours of Service are not required to be credited for a payment which solely reimburses an Employee for medical or medically related expenses incurred by the Employee.

For purposes of (2) above, a payment shall be deemed to be made by or due from the Employer regardless of whether such payment is made by or due from the Employer directly, or indirectly through, among others, a trust fund, or insurer, to which the Employer contributes or pays premiums and regardless of whether contributions made or due to the trust fund, insurer, or other entity are for the benefit of particular Employees or are on behalf of a group of Employees in the aggregate.

For purposes of this Section, Hours of Service will be credited for employment with any Affiliated Employers. The provisions of Department of Labor regulations 2530.200b-2(b) and (c) are incorporated herein by reference.

1.47“Income” means the gains or losses for the “applicable computation period” allocable to an “excess amount”, which amount shall be determined and allocated, at the discretion of the Administrator, using any of the methods set forth below:

(a)Method of allocating Income. The Administrator may use any reasonable method for computing the Income allocable to an “excess amount” for the “applicable computation

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period,” provided that the method is used consistently for all Participants and for all corrective distributions under the Plan for the “applicable computation period,” and is used by the Plan for allocating earnings to a Participant’s “specific account(s).”

(b)Alternative method of allocating Income. The Administrator may allocate Income to an “excess amount” for the “applicable computation period” by multiplying the earnings for the “applicable computation period” allocable to the “Employer contributions” taken into account under the test or limitation giving rise to such “excess amount” by a fraction, the numerator of which is the “excess amount” for the Employee for the “applicable computation period,” and the denominator of which is the sum of:

(1)The “specific account(s)” balance(s) taken into account under the test or limitation giving rise to such “excess amount” as of the beginning of the “applicable computation period,” and

(2)Any additional amount of such “Employer contributions” made for the “applicable computation period” to the “specific account(s).”

(c)For purposes of calculating the Income attributable to Excess Deferrals of Section 4.2(g), the terms “applicable computation period”, “Employer contributions”, “excess amount”, and “specific account(s)” will have the following substitutions:

(1)The taxable year of the Participant shall be substituted for the “applicable computation period”;

(2)Elective Deferrals shall be substituted for “Employer contributions”;

(3)Excess Deferrals shall be substituted for “excess amount”; and

(4)The Elective Deferral Account shall be substituted for the “specific account(s).”

(d)For purposes of calculating the Income attributable to Excess Contributions of Section 4.6(b), the terms “applicable computation period”, “Employer contributions”, “excess amount”, and “specific account(s)” will have the following substitutions:

(1)The Plan Year shall be substituted for the “applicable computation period”;

(2)Elective Deferrals, and other contributions included in determining the ADR under Section 1.10, shall be substituted for “Employer contributions”;

(3)Excess Contributions shall be substituted for “excess amount”;

(4)The Elective Deferral Account, and, if included in the determination of the ADR under Section 1.10, the Qualified Matching Contribution and/or the Qualified Nonelective Contribution Account(s), shall be substituted for the “specific account(s).”

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(e) For purposes of calculating the Income attributable to Excess Aggregate Contributions of Section 4.8(b), the terms “applicable computation period”, “Employer contributions”, “excess amount”, and “specific account(s)” will have the following substitutions:

(1)The Plan Year shall be substituted for the “applicable computation period”;

(2)Any Matching Contributions which are ADP Test Safe Harbor Contributions that are permitted by Code Sections 401(k)(12) and 401(m)(11), and are made pursuant to Section 4.1(b) (to the extent such Matching Contributions are used to satisfy the ACP Test); Qualified Matching Contributions (to the extent such Qualified Matching Contributions are not used to satisfy the ADP Test) and Qualified Nonelective Contributions (to the extent not used to satisfy the ADP Test) shall be substituted for “Employer contributions.” Elective Deferrals may be included in the substitution listed above, provided the ADP Test is met before the Elective Deferrals are used in the ACP Test and continues to be met following the exclusion of those Elective Deferrals that are used to meet the ACP Test.

(3)Excess Aggregate Contributions shall be substituted for “excess amount”;

(4)The Qualified Matching Contribution Account and Qualified Nonelective Contribution Account shall be substituted for the “specific account(s).”

(f)With respect to Excess Contributions and Excess Aggregate Contributions, Income for the period between the end of the Plan Year and the date of the distribution (the “gap period”) is required to be distributed. A Plan will not fail to use a reasonable method for computing the Income that is allocable to Excess Contributions and Excess Aggregate Contributions merely because the Income allocable to Excess Contributions and Excess Aggregate Contributions is determined on a date that is no more than 7 days before the distribution. Income for the “gap period” shall be calculated by using any of the methods set forth below:

(1)Safe harbor method of allocating “gap period” income. The Administrator may use the safe harbor method in this paragraph to determine the Income on Excess Contributions and Excess Aggregate Contributions for the “gap period.” Under this safe harbor method, Income on Excess Contributions and Excess Aggregate Contributions for the “gap period” is equal to 10% of the Income allocable to Excess Contributions and Excess Aggregate Contributions for the Plan Year that would be determined under paragraph (b) above (with the appropriate substitutions of paragraph (d) and paragraph (e)), multiplied by the number of calendar months that have elapsed since the end of the Plan Year. For purposes of calculating the number of calendar months that have elapsed under this safe harbor method, a corrective distribution that is made on or before the fifteenth day of a month is treated as made on the last day of the preceding month and a distribution made after the fifteenth day of a month is treated as made on the last day of the month.

(2)Alternative method for allocating Plan Year and “gap period” income. The Administrator may determine the allocable Income for the aggregate of the Plan Year

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and the “gap period” by applying the alternative method provided by paragraph (b) above with respect to the entire period represented by the Plan Year and the “gap period”, rather than just the Plan Year.

1.48“Investment Manager” means any Fiduciary described in Act Section 3(38).

1.49“Key Employee” means an Employee as defined in Code Section 416(i) and the Regulations thereunder. Generally, any Employee or Former Employee (as well as each of the Employee’s or Former Employee’s Beneficiaries) is considered a Key Employee if the Employee or Former Employee, at any time during the Plan Year that contains the “determination date” is described in one of the following categories:

(a)an officer of the Employer (as that term is defined within the meaning of the Regulations under Code Section 416) having annual 415 Compensation greater than $130,000 (as adjusted under Code Section 416(i)(1)).

(b)a “five percent owner” of the Employer. “Five percent owner” means any person who owns (or is considered as owning within the meaning of Code Section 318) more than five percent (5%) of the outstanding stock of the Employer or stock possessing more than five percent (5%) of the total combined voting power of all stock of the Employer or, in the case of an unincorporated business, any person who owns more than five percent (5%) of the capital or profits interest in the Employer. In determining percentage ownership hereunder, employers that would otherwise be aggregated under Code Sections 414(b), (c), (m) and (o) shall be treated as separate employers.

(c)a “one percent owner” of the Employer having an annual 415 Compensation from the Employer of more than $150,000. “One percent owner” means any person who owns (or is considered as owning within the meaning of Code Section 318) more than one percent (1%) of the outstanding stock of the Employer or stock possessing more than one percent (1%) of the total combined voting power of all stock of the Employer or, in the case of an unincorporated business, any person who owns more than one percent (1%) of the capital or profits interest in the Employer. In determining percentage ownership hereunder, employers that would otherwise be aggregated under Code Sections 414(b), (c), (m) and (o) shall be treated as separate employers. However, in determining whether an individual has 415 Compensation of more than $150,000, 415 Compensation from each employer required to be aggregated under Code Sections 414(b), (c), (m) and (o) shall be taken into account.

In determining percentage ownership hereunder, employers that would otherwise be aggregated under Code Sections 414(b), (c), (m) and (o) shall be treated as separate employers. In determining whether an individual has 415 Compensation of more than $150,000, 415 Compensation from each employer required to be aggregated under Code Sections 414(b), (c), (m) and (o) shall be taken into account.

1.50“Late Retirement Date” means a Participant’s actual Retirement Date after having reached Normal Retirement Date.

1.51“Leased Employee” means any person (other than an Employee of the recipient Employer) who, pursuant to an agreement between the recipient Employer and any other person or entity

16

(“leasing organization”), has performed services for the recipient (or for the recipient and related persons determined in accordance with Code Section 414(n)(6)) on a substantially full time basis for a period of at least one year, and such services are performed under primary direction or control by the recipient Employer. Contributions or benefits provided a Leased Employee by the leasing organization which are attributable to services performed for the recipient Employer shall be treated as provided by the recipient Employer. Furthermore, Compensation for a Leased Employee shall only include Compensation from the leasing organization that is attributable to services performed for the recipient Employer.

A Leased Employee shall not be considered an employee of the recipient Employer if: (a) such employee is covered by a money purchase pension plan providing: (1) a non-integrated employer contribution rate of at least ten percent (10%) of compensation, as defined in Code Section 415(c)(3), (2) immediate participation, and (3) full and immediate vesting; and (b) leased employees do not constitute more than twenty percent (20%) of the recipient Employer’s nonhighly compensated work force.

1.52“Limitation Year” means the Plan Year. However, the Employer may elect a different Limitation Year by amending the Plan. All qualified plans maintained by the Employer must use the same Limitation Year. Furthermore, unless there is a change to a new Limitation Year, the Limitation Year will be a twelve (12) consecutive month period. In the case of an initial Limitation Year, the Limitation Year will be the twelve (12) consecutive month period ending on the last day of the initial Plan Year. If the Limitation Year is amended to a different twelve (12) consecutive month period, the new Limitation Year must begin on a date within the Limitation Year in which the amendment is made.

1.53“Nonelective Contribution” means any Employer contribution (including a contribution made at the Employer’s discretion) to the Plan, other than a Participant’s Elective Deferrals, ADP Test Safe Harbor Contributions (which are used to satisfy the safe harbor methods permitted by Code Sections 401(k)(12) and 401(m)(11)), Qualified Matching Contributions and Qualified Nonelective Contributions.

1.54“Nonelective Contribution Account” means the separate account established and maintained by the Administrator for each Participant with respect to the Participant’s total interest in the Plan resulting from Nonelective Contributions.

1.55“Nonhighly Compensated Employee/Participant” means any Employee who is not a Highly Compensated Employee. However, for purposes of Section 4.5(a) and Section 4.7(a), if the prior year testing method is used, a Nonhighly Compensated Employee shall be determined using the definition of Highly Compensated Employee in effect for the preceding Plan Year. A Nonhighly Compensated Participant is a Participant who is not a Highly Compensated Employee.

A Participant is a Nonhighly Compensated Participant for a particular Plan Year if such Participant does not meet the definition of a Highly Compensated Employee in effect for that Plan Year.

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1.56“Non-Key Employee” means any Employee or Former Employee (and such Employees or Former Employee’s Beneficiaries) who is not a Key Employee.

1.57“Normal Retirement Age” means the Participant’s 65th birthday. A Participant shall become fully Vested in the Participant’s Account upon attaining Normal Retirement Age (if the Participant is still employed by the Employer on or after that date).

1.58“Normal Retirement Date” means the date a Participant attains Normal Retirement Age.

1.59“1-Year Break in Service” means a Period of Severance of at least 12 consecutive months.

1.60“Owner-Employee” means a sole proprietor who owns the entire interest in the Employer or a partner (or member in the case of a limited liability company treated as a partnership or sole proprietorship for federal income tax purposes) who owns more than 10% of either the capital interest or the profits interest in the Employer and who receives income for personal services from the Employer.

1.61“Participant” means any Employee or Former Employee who has satisfied the requirements of Sections 3.1 and 3.2 and entered the Plan and is eligible to accrue benefits under the Plan. In addition, the term “Participant” also includes any individual who was a Participant (as defined in the preceding sentence) and who must continue to be taken into account under a particular provision of the Plan (e.g., because the Participant has an Account Balance in the Plan).

1.62“Participant Direction Procedures” means such instructions, guidelines or policies, the terms of which are incorporated herein, as shall be established pursuant to Section 4.14 and observed by the Administrator and applied and provided to Participants who have Participant Directed Accounts.

1.63“Participating Employer” means an Employer who adopts the Plan pursuant to Section 10.1.

1.64“Period of Service” means each twelve (12) month period of service commencing with the Employee’s first day of employment or reemployment with the Employer or Affiliated Employer and ending on the date a 1-Year Break in Service begins. The first day of employment or reemployment is the first day the Employee performs an Hour of Service. An Employee who incurs a Period of Severance of twelve (12) months or less will also receive service-spanning credit for all such Periods of Severance. Fractional periods of a year will be expressed in terms of days. A Participant’s whole year Periods of Service is equal to the sum of all full and partial periods of service, whether or not such service is continuous or contiguous, and whether or not such service is actual service or imputed service (under the service-spanning rule above), expressed in the number of whole years represented by such sum.

Periods of Service with any Affiliated Employer shall be recognized. Furthermore, Periods of Service with any predecessor employer that maintained this Plan shall be recognized.

In addition, all Periods of Service with Zartic, LLC and Zartic, Inc. shall be recognized for purposes of eligibility, vesting and allocations.

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In the event the method of crediting service is amended from the hour-of-service method to the elapsed-time method, an Employee will receive credit for a Period of Service consisting of:

(a)A number of years equal to the number of Years of Service credited to the Employee before the computation period during which the amendment occurs; and

(b)The greater of (1) the Periods of Service that would be credited to the Employee under the elapsed-time method for service during the entire computation period in which the amendment occurs or (2) the service taken into account under the hour-of-service method as of the date of the amendment.

In addition, the Employee will receive credit for service subsequent to the amendment commencing on the day after the last day of the computation period in which the amendment occurs.

1.65“Period of Severance” means a continuous period of time during which an Employee is not employed by the Employer. Such period begins on the date the Employee retires, quits or is discharged, or if earlier, the twelve (12) month anniversary of the date on which the Employee was otherwise first absent from service.

In the case of an individual who is absent from work for maternity or paternity reasons, the twelve (12) consecutive month period beginning on the first anniversary of the first day of such absence shall not constitute a 1-Year Break in Service. For purposes of this paragraph, an absence from work for maternity or paternity reasons means an absence (a) by reason of the pregnancy of the individual, (b) by reason of the birth of a child of the individual, (c) by reason of the placement of a child with the individual in connection with the adoption of such child by such individual, or (d) for purposes of caring for such child for a period beginning immediately following such birth or placement.

1.66“Plan” means this instrument, including all amendments thereto.

1.67“Plan Year” means the Plan’s accounting year of twelve (12) months commencing on January 1 of each year and ending the following December 31.

1.68“Post-Severance Compensation” means payments made within 2 1/2 months after severance from employment (within the meaning of Code Section 401(k)(2)(B)(i)(l)) if they are payments that, absent a severance from employment, would have been paid to the Employee while the Employee continued in employment with the Employer and are regular compensation for services during the Employee’s regular working hours, compensation for services outside the Employee’s regular working hours (such as overtime or shift differential), commissions, bonuses, or other similar compensation, and payments for accrued bona fide sick, vacation or other leave, but only if the Employee would have been able to use the leave if employment had continued. Any payments not described above are not considered compensation if paid after severance from employment, even if they are paid within 2 1/2 months following severance from employment, except for payments to an individual who does not currently perform services for the Employer by reason of qualified military service (within the meaning of Code Section 414(u)(1)) to the extent

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these payments do not exceed the amounts the individual would have received if the individual had continued to perform services for the Employer rather than entering qualified military service.

1.69“Pre-Tax Elective Deferral Account” means the portion of a Participant’s Elective Deferral Account that is attributable to Pre-Tax Elective Deferrals.

1.70“Pre-Tax Elective Deferrals” means a Participant’s Elective Deferrals that are not includible in the Participant’s gross income at the time deferred.

1.71“Qualified Matching Contribution” means any Employer contribution (including a contribution made at the Employer’s discretion) to the Plan on account of a Participant’s Elective Deferrals that are designated as such pursuant to Sections 4.1(b) (i.e., ADP test safe harbor contributions), 4.6 and 4.8.

1.72“Qualified Matching Contribution Account” means the separate account established and maintained by the Administrator for each Participant with respect to the Participant’s total interest in the Plan resulting from Qualified Matching Contributions and any Matching Contributions that are ADP Test Safe Harbor Contributions. Amounts in the Qualified Matching Contribution Account are nonforfeitable when made and are subject to the distribution restrictions of Section 4.2(d).

1.73“Qualified Nonelective Contribution” means any Employer contributions to the Plan that are designated as such pursuant to Sections 4.1(c), 4.6 and 4.8 or any other provision of the Plan. Qualified Nonelective Contributions may be used to satisfy the ADP Test or the ACP Test. All such contributions shall be allocated to the Qualified Nonelective Contribution Account, and shall be fully vested and subject to the restrictions on distributions from that Account.

1.74“Qualified Nonelective Contribution Account” means the separate account established and maintained by the Administrator for each Participant with respect to the Participant’s total interest in the Plan resulting from Qualified Nonelective Contributions and any Nonelective Contributions that are ADP Test Safe Harbor Contributions. Amounts in the Qualified Nonelective Contribution Account are nonforfeitable when made and are subject to the distribution restrictions of Section 4.2(d).

1.75“Regulation” means the Income Tax Regulations as promulgated by the Secretary of the Treasury or a delegate of the Secretary of the Treasury, and as amended from time to time.

1.76“Retirement Date” means the date as of which a Participant retires for reasons other than Disability, whether such retirement occurs on a Participant’s Normal Retirement Date, Early or Late Retirement Date.

1.77“Rollover Account” means the separate account established and maintained by the Administrator for each Participant with respect to such Participant’s interest in the Plan resulting from amounts that are rolled over from another plan or Individual Retirement Account in accordance with Section 4.12. Amounts in the Rollover Account are nonforfeitable when made.

A separate accounting shall be maintained with respect to any portion of the Rollover Account that is attributable to voluntary after-tax employee contributions.

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A separate accounting shall be maintained with respect to any portion of the Rollover Account that is attributable to amounts treated as Roth elective deferrals.

1.78“Roth Elective Deferral Account” means the separate account established and maintained by the Administrator for each Participant with respect to the Participant’s total interest in the Plan resulting from Roth Elective Deferrals. Amounts in the Roth Elective Deferral Account are nonforfeitable when made and are subject to the distribution restrictions of Section 4.2(d).

1.79“Roth Elective Deferrals” means, effective January 1, 2006, a Participant’s Elective Deferrals that are includible in the Participant’s gross income at the time deferred and have been irrevocably designated as Roth Elective Deferrals by the Participant in his or her deferral election.

1.80“Self-Employed Individual” means an individual, other than an independent contractor, who has Earned Income for the taxable year from the trade or business for which the Plan is established, and, also, an individual who would have had Earned Income but for the fact that the trade or business had no net profits for the taxable year. A Self-Employed Individual shall be treated as an Employee.

1.81“Shareholder-Employee” means a Participant who owns more than five percent (5%) of the Employer’s outstanding capital stock during any year in which the Employer elected to be taxed as a Small Business Corporation under the applicable Code Section.

1.82“Terminated Participant” means a person who has been a Participant, but whose employment has been terminated other than by death, Disability or retirement.

1.83“Top-Heavy Plan” means a plan described in Section 8.1(a).

1.84“Top-Heavy Plan Year” means a Plan Year during which the Plan is a Top-Heavy Plan.

1.85“Top-Paid Group” means the top-paid group as determined pursuant to Code Section 414(q) and the Regulations thereunder and generally means the top twenty percent (20%) of Employees who performed services for the Employer during the applicable year, ranked according to the amount of 415 Compensation received from the Employer during such year. All Affiliated Employers shall be taken into account as a single employer, and Leased Employees shall be treated as Employees if required pursuant to Code Section 414(n) or (o). Employees who are nonresident aliens who received no earned income (within the meaning of Code Section 911(d)(2)) from the Employer constituting United States source income within the meaning of Code Section 861(a)(3) shall not be treated as Employees. Furthermore, for the purpose of determining the number of Employees in any year, the following additional Employees may also be excluded, however, such Employees shall still be considered for the purpose of identifying the particular Employees in the Top-Paid Group:

(a)Employees with less than six (6) months of service;

(b)Employees who normally work less than 17 1/2 hours per week;

(c)Employees who normally work less than six (6) months during a year; and

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(d)Employees who have not yet attained age twenty-one (21).

In addition, if ninety percent (90%) or more of the Employees of the Employer are covered under agreements the Secretary of Labor finds to be collective bargaining agreements between Employee representatives and the Employer, and the Plan covers only Employees who are not covered under such agreements, then Employees covered by such agreements shall be excluded from both the total number of active Employees as well as from the identification of particular Employees in the Top-Paid Group.

The foregoing exclusions set forth in this Section shall be applied on a uniform and consistent basis for all purposes for which the Code Section 414(q) definition is applicable. Furthermore, in applying such exclusions, the Employer may substitute any lesser service, hours or age.

1.87“Total Vested Benefit” means the total Participant’s Vested Account balances derived from Employer and Employee contributions, including rollover contributions, whether Vested before or upon death.

1.88“Transfer Account” means the separate account established and maintained by the Administrator for each Participant with respect to the Participant’s total interest in the Plan resulting from amounts transferred to this Plan from a direct plan-to-plan transfer in accordance with Section 4.11. To the extent that the Plan is a direct or indirect transferee of a defined benefit or defined contribution pension plan, then the funds transferred to this Plan from such other plan shall be treated as funds that are subject to a life annuity form of payment as well as the survivor annuity requirements of Code Sections 401(a)(11) and 417 (and are part of the Participant’s Pre-Retirement Survivor Annuity Account). The preceding sentence does not apply to amounts rolled over into a Participant’s Rollover Account, even if from a pension plan.

1.89“Trustee” means the person or entity named as trustee herein or in any separate trust forming a part of this Plan, and any successors, effective upon the written acceptance of such person or entity to serve as Trustee.

1.90“Trust Fund” means the assets of the Plan and Trust as the same shall exist from time to time.

1.91“Valuation Date” means the Anniversary Date and may include any other date or dates deemed necessary or appropriate by the Administrator for the valuation of the Participants’ Accounts during the Plan Year, which may include any day that the Trustee, any transfer agent appointed by the Trustee or the Employer or any stock exchange used by such agent, is open for business. Nothing in this Plan requires or implies a uniform Valuation Date for all Accounts; thus certain valuation provisions that apply to an Account that is not valued on each business day will have no application, in operation, to an Account that is valued on each business day.

1.92“Vested” means the nonforfeitable portion of any account maintained on behalf of a Participant.

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ARTICLE II
ADMINISTRATION

2.1POWERS AND RESPONSIBILITIES OF THE EMPLOYER

(a)Appointment of Trustee and Administrator. In addition to the general powers and responsibilities otherwise provided for in this Plan, the Employer shall be empowered to appoint and remove the Trustee and the Administrator from time to time as it deems necessary for the proper administration of the Plan to ensure that the Plan is being operated for the exclusive benefit of the Participants and their Beneficiaries in accordance with the terms of the Act, the Plan and the Code. The Employer may appoint counsel, specialists, advisers, agents (including any nonfiduciary agent) and other persons as the Employer deems necessary or desirable in connection with the exercise of its fiduciary duties under this Plan. The Employer may compensate such agents or advisers from the assets of the Plan as fiduciary expenses (but not including any business (settlor) expenses of the Employer), to the extent not paid by the Employer.

(b)Appointment of Investment Manager. The Employer may appoint, at its option, an Investment Manager (qualified under the Investment Company Act of 1940 as amended), investment adviser, or other agent to provide investment direction to the Trustee with respect to any or all of the Plan assets. Such appointment shall be given by the Employer in writing in a form acceptable to the Trustee and shall specifically identify the Plan assets with respect to which the Investment Manager or other agent shall have authority to direct the investment.

(c)Funding policy and method. The Employer shall establish a funding policy and method, i.e., it shall determine whether the Plan has a short run need for liquidity (e.g., to pay benefits) or whether liquidity is a long run goal and investment growth (and stability of same) is a more current need, or shall appoint a qualified person to do so. The Employer or its delegate shall communicate such needs and goals to the Trustee, who shall coordinate such Plan needs with its investment policy. The communication of such a funding policy and method shall not, however, constitute a directive to the Trustee as to the investment of the Trust Funds. Such funding policy and method shall be consistent with the objectives of this Plan and with the requirements of Title I of the Act.

(d)Review of fiduciary performance. The Employer shall periodically review the performance of any Fiduciary or other person to whom duties have been delegated or allocated by it under the provisions of this Plan or pursuant to procedures established hereunder. This requirement may be satisfied by formal periodic review by the Employer or by a qualified person specifically designated by the Employer, through day-to-day conduct and evaluation, or through other appropriate ways.

2.2DESIGNATION OF ADMINISTRATIVE AUTHORITY

The Employer shall be the Administrator. The Employer may appoint any person, including, but not limited to, the Employees of the Employer, to perform the duties of the Administrator. Any person so appointed shall signify acceptance by filing written acceptance with the Employer. Upon the resignation or removal of any individual performing the duties of the Administrator, the Employer may designate a successor.

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2.3ALLOCATION AND DELEGATION OF RESPONSIBILITIES

If more than one person is serving as Administrator, the responsibilities of each Administrator may be specified by the Employer and accepted in writing by each Administrator. In the event that no such delegation is made by the Employer, the Administrators may allocate the responsibilities among themselves, in which event the Administrators shall notify the Employer and the Trustee in writing of such action and specify the responsibilities of each Administrator. The Trustee thereafter shall accept and rely upon any documents executed by the appropriate Administrator until such time as the Employer or the Administrators file with the Trustee a written revocation of such designation.

2.4POWERS AND DUTIES OF THE ADMINISTRATOR

The primary responsibility of the Administrator is to administer the Plan for the exclusive benefit of the Participants and their Beneficiaries, subject to the specific terms of the Plan. The Administrator shall administer the Plan in accordance with its terms and shall have the power and discretion to construe the terms of the Plan and to determine all questions arising in connection with the administration, interpretation, and application of the Plan. Benefits under this Plan will be paid only if the Administrator decides in its discretion that the applicant is entitled to them. Any such determination by the Administrator shall be conclusive and binding upon all persons. The Administrator may establish procedures, correct any defect, supply any information, or reconcile any inconsistency in such manner and to such extent as shall be deemed necessary or advisable to carry out the purpose of the Plan; provided, however, that any procedure, discretionary act, interpretation or construction shall be done in a nondiscriminatory manner based upon uniform principles consistently applied and shall be consistent with the intent that the Plan shall continue to be deemed a qualified plan under the terms of Code Section 401(a), and shall comply with the terms of the Act and all regulations issued pursuant thereto. The Administrator shall have all powers necessary or appropriate to accomplish the Administrators duties under the Plan.

The Administrator shall be charged with the duties of the general administration of the Plan as set forth under the terms of the Plan, including, but not limited to, the following:

(a)the discretion to determine all questions relating to the eligibility of Employees to participate or remain a Participant hereunder and to receive benefits under the Plan;

(b)the authority to review and settle all claims against the Plan, including claims where the settlement amount cannot be calculated or is not calculated in accordance with the Plan’s benefit formula. This authority specifically permits the Administrator to settle disputed claims for benefits and any other disputed claims made against the Plan;

(c)to compute, certify, and direct the Trustee with respect to the amount and the kind of benefits to which any Participant shall be entitled hereunder;

(d)to authorize and direct the Trustee with respect to all discretionary or otherwise directed disbursements from the Trust;

(e)to maintain all necessary records for the administration of the Plan;

(f)to interpret the provisions of the Plan and to make and publish such rules for regulation of the Plan as are consistent with the terms hereof;

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(g)to determine the size and type of any Contract to be purchased from any insurer, and to designate the insurer from which such Contract shall be purchased;

(h)to compute and certify to the Employer and to the Trustee from time to time the sums of money necessary or desirable to be contributed to the Plan;

(i)to consult with the Employer and the Trustee regarding the short and long-term liquidity needs of the Plan in order that the Trustee can exercise any investment discretion (if the Trustee has such discretion) in a manner designed to accomplish specific objectives;

(j)to prepare and implement a procedure to notify Eligible Employees that they may elect to have a portion of their Compensation deferred or paid to them in cash;

(k)to act as the named Fiduciary responsible for communications with Participants as needed to maintain Plan compliance with Act Section 404(c), including, but not limited to, the receipt and transmitting of Participant’s directions as to the investment of their account(s) under the Plan and the formulation of policies, rules, and procedures pursuant to which Participants may give investment instructions with respect to the investment of their accounts;

(l)to determine the validity of, and take appropriate action with respect to, any qualified domestic relations order received by it; and

(m)to assist any Participant regarding the Participant’s rights, benefits, or elections available under the Plan.

2.5RECORDS AND REPORTS

The Administrator shall keep a record of all actions taken and shall keep all other books of account, records, policies, and other data that may be necessary for proper administration of the Plan and shall be responsible for supplying all information and reports to the Internal Revenue Service, Department of Labor, Participants, Beneficiaries and others as required by law.

2.6APPOINTMENT OF ADVISERS

The Administrator, or the Trustee with the consent of the Administrator, may appoint counsel, specialists, advisers, agents (including nonfiduciary agents) and other persons as the Administrator or the Trustee deems necessary or desirable in connection with the administration of this Plan, including but not limited to agents and advisers to assist with the administration and management of the Plan, and thereby to provide, among such other duties as the Administrator may appoint, assistance with maintaining Plan records and the providing of investment information to the Plan’s investment fiduciaries and to Plan Participants.

2.7PAYMENT OF EXPENSES

All reasonable expenses of administration may be paid out of the Plan assets unless paid by the Employer. Such expenses shall include any expenses incident to the functioning of the

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Administrator, or any person or persons retained or appointed by any named Fiduciary incident to the exercise of their duties under the Plan, including, but not limited to, fees of accountants, counsel, Investment Managers, agents (including nonfiduciary agents) appointed for the purpose of assisting the Administrator or the Trustee in carrying out the instructions of Participants as to the directed investment of their accounts (if permitted) and other specialists and their agents, the costs of any bonds required pursuant to Act Section 412, and other costs of administering the Plan. Until paid, the expenses shall constitute a liability of the Trust Fund. In addition, unless specifically prohibited under statute, regulation or other guidance of general applicability, the Administrator may charge to the Account of an individual Participant a reasonable charge to offset the cost of making a distribution to the Participant, Beneficiary, or alternate payee under a qualified domestic relation order, as defined in Code Section 414(p). If liquid assets of the Plan are insufficient to cover the fees of the Trustee or the Plan Administrator, then Plan assets shall be liquidated to the extent necessary for such fees. In the event any part of the Plan assets becomes subject to tax, all taxes incurred will be paid from the Plan assets. Until paid, the expenses shall constitute a liability of the Trust Fund.

2.8CLAIMS PROCEDURE

Claims for benefits under the Plan may be filed in writing with the Administrator. Written notice of the disposition of a claim shall be furnished to the claimant within ninety (90) days (45 days if the claim involves disability benefits) after the application is filed, or such period as is required by applicable law or Department of Labor regulation. In the event the claim is denied, the reasons for the denial shall be specifically set forth in the notice in language calculated to be understood by the claimant, pertinent provisions of the Plan shall be cited, and, where appropriate, an explanation as to how the claimant can perfect the claim will be provided. In addition, the claimant shall be furnished with an explanation of the Plan’s claims review procedure.

2.9CLAIMS REVIEW PROCEDURE

Any Employee, Former Employee, or Beneficiary of either, who has been denied a benefit by a decision of the Administrator pursuant to Section 2.8 shall be entitled to request the Administrator to give further consideration to a claim by filing with the Administrator a written request for a hearing. Such request, together with a written statement of the reasons why the claimant believes the claim should be allowed, shall be filed with the Administrator no later than sixty (60) days (45 days if the claim involves disability benefits) after receipt of the written notification provided for in Section 2.8. The Administrator shall then conduct a hearing within the next 60 days (45 days if the claim involves disability benefits), at which the claimant may be represented by an attorney or any other representative of such claimant’s choosing and expense and at which the claimant shall have an opportunity to submit written and oral evidence and arguments in support of the claim. At the hearing the claimant or the claimant’s representative shall have an opportunity to review all documents in the possession of the Administrator which are pertinent to the claim at issue and its disallowance. A final decision as to the allowance of the claim shall be made by the Administrator within sixty (60) days (45 days if the claim involves disability benefits) of receipt of the appeal (unless there has been an extension of sixty (60) days (45 days if the claim involves disability benefits) due to special circumstances, provided the delay and the special circumstances occasioning it are communicated to the claimant within the 60-day period (45 days if the claim involves disability benefits)). Such communication shall be written in a manner calculated to be understood by the claimant and shall include specific reasons for the decision and specific references to the pertinent Plan provisions on which the

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decision is based. Notwithstanding the preceding, to the extent any of the time periods specified in this Section are amended by law or Department of Labor regulation, then the time frames specified herein shall automatically be changed in accordance with such law or regulation.

If the Administrator, pursuant to the claims review procedure, makes a final written determination denying a Participant’s or Beneficiary’s benefit claim, then in order to preserve the claim, the Participant or Beneficiary must file an action with respect to the denied claim not later than one hundred eighty (180) days following the date of the Administrator’s final determination.

ARTICLE III
ELIGIBILITY

3.1CONDITIONS OF ELIGIBILITY

(a)Eligibility. For all Plan purposes, any Eligible Employee who has completed 30 days of Service and has attained age 18 shall be eligible to participate hereunder as of the date such Employee has satisfied such requirements. However, any Employee who was a Participant in the Plan prior to the effective date of this amendment and restatement shall continue to participate in the Plan.

3.2EFFECTIVE DATE OF PARTICIPATION

(a)Effective date of participation. An Eligible Employee shall become a Participant effective as of the first day of the month coinciding with or next following the date on which such Employee met the eligibility requirements of Section 3.1 (or if sooner, the first day of the following Plan Year), provided said Employee was still employed as of such date (or if not employed on such date, as of the date of rehire if a 1-Year Break in Service has not occurred or, if later, the date that the Employee would have otherwise entered the Plan had the Employee not terminated employment).

(b)Recognition of other employer service. If an Eligible Employee satisfies the eligibility requirement conditions of a specific component of the Plan by reason of recognition of service with an entity that is not an Affiliated Employer, then such Employee shall become a Participant in such component of the Plan as of the day that the Plan credits such service with the entity or, if later, the date the Employee would have otherwise entered such component of the Plan had the service with the entity been recognized for purposes of this Plan.

(c)Ineligible to eligible classification. If an Employee, who has satisfied the Plan’s eligibility requirements and would otherwise have become a Participant in the Plan, shall go from a classification of an ineligible Employee to an Eligible Employee, such Employee shall become a Participant in the Plan on the date such Employee becomes an Eligible Employee or, if later, the date that the Employee would have otherwise entered the Plan had the Employee always been an Eligible Employee.

(d)Eligible to ineligible classification. If an Employee, who has satisfied the Plan’s eligibility requirements and would otherwise become a Participant in the Plan, shall go from a classification of an Eligible Employee to an ineligible class of Employees, such

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Employee shall become a Participant in the Plan on the date such Employee again becomes an Eligible Employee, or, if later, the date that the Employee would have otherwise entered the Plan had the Employee always been an Eligible Employee. However, if such Employee incurs five (5) consecutive 1-Year Breaks in Service, eligibility will be determined under the Break in Service rules set forth in Section 3.5.

3.3DETERMINATION OF ELIGIBILITY

The Administrator shall determine the eligibility of each Employee for participation in the Plan based upon information furnished by the Employer. Such determination shall be conclusive and binding upon all persons, as long as the same is made pursuant to the Plan and the Act. Such determination shall be subject to review pursuant to Section 2.9.

3.4TERMINATION OF ELIGIBILITY

In the event a Participant shall go from a classification of an Eligible Employee to an ineligible Employee with respect to the Plan, then such Participant shall continue to Vest in the Plan for each Period of Service completed while an ineligible Employee, until such time as the Participants Account is forfeited or distributed pursuant to the terms of the Plan. Additionally, the Participants interest in the Plan shall continue to share in the earnings of the Trust Fund.

3.5REHIRED EMPLOYEES AND BREAKS IN SERVICE

(a)Reemployed before five (5) consecutive 1-Year Breaks in Service. If any Employee becomes a Former Employee due to severance from employment with the Employer and is reemployed by the Employer before five (5) consecutive 1-Year Breaks in Service occur, then the Former Employee’s prior service shall count in the same manner as if severance from employment with the Employer had not occurred. If any Participant ceases to be a Participant due to severance from employment with the Employer and is reemployed by the Employer before five (5) consecutive 1-Year Breaks in Service occur, then the Participant shall resume participation (in the same manner as if severance from employment with the Employer had not occurred) as of the reemployment date.

(b)Reemployed after five (5) consecutive 1-Year Breaks in Service (“rule of parity” provisions). If any Employee becomes a Former Employee due to severance from employment with the Employer and is reemployed after a 5-Year Break in Service has occurred, Periods of Service shall include Periods of Service prior to the 5-year break in service subject to the following rules:

(1)Rule of parity. In the case of a Participant who under the Plan does not have a nonforfeitable right to any interest in the Plan resulting from Employer contributions, Periods of Service before a period of consecutive 1-Year Breaks in Service will not be taken into account if the number of consecutive 1-Year Breaks in Service equal or exceed the greater of (A) five (5) or (B) the aggregate number of pre-break Periods of Service. Such aggregate number of Periods of Service will not include any Periods of Service disregarded under the preceding sentence by reason of prior period of five (5) consecutive 1-Year Breaks in Service.

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(2)Participation in Plan. A Former Employee shall participate in the Plan as of the date of reemployment, or if later, as of the date that the Former Employee would otherwise enter the Plan pursuant to Sections 3.1 and 3.2 taking into account all service not disregarded in this subsection.

(c)Vesting after five (5) consecutive 1-Year Breaks in Service. After a Participant who has severed employment with the Employer incurs five (5) consecutive 1-Year Breaks in Service, the Vested portion of said Participant’s Account attributable to pre-break service shall not be increased as a result of post-break service. In such case, separate accounts will be maintained as follows:

(1)one account for nonforfeitable benefits attributable to pre-break service; and

(2)one account representing the Participants Employer derived account balance in the Plan attributable to post-break service.

(d)Buyback provisions. If any Participant severs employment with the Employer and is reemployed by the Employer before five (5) consecutive 1-Year Breaks in Service, and such Participant had received a distribution of the entire Vested interest prior to reemployment, then the forfeited account shall be reinstated only if the Participant repays the full amount which had been distributed. Such repayment must be made before the earlier of five (5) years after the first date on which the Participant is subsequently reemployed by the Employer or the close of the first period of five (5) consecutive 1-Year Breaks in Service commencing after the distribution. If a distribution occurs for any reason other than a severance of employment, the time for repayment may not end earlier than five (5) years after the date of distribution. In the event the Participant does repay the full amount distributed, the undistributed forfeited portion of the Participant’s Account must be restored in full, unadjusted by any gains or losses occurring subsequent to the Valuation Date preceding the distribution. The source for such reinstatement may be Forfeitures occurring during the Plan Year. If such source is insufficient, then the Employer will contribute an amount which is sufficient to restore any such forfeited Accounts provided, however, that if a discretionary contribution is made for such year pursuant to Section 4.1(d), such contribution will first be applied to restore any such Accounts and the remainder shall be allocated in accordance with the terms of the Plan.

If a non-Vested Participant was deemed to have received a distribution and such Participant is reemployed by the Employer before five (5) consecutive 1-Year Breaks in Service, then such Participant will be deemed to have repaid the deemed distribution as of the date of reemployment.

3.6ELECTION NOT TO PARTICIPATE

(a)Irrevocable election not to participate. An Employee may, subject to the approval of the Employer, elect voluntarily not to participate in every Qualified Plan maintained by the Employer. Such election must be made prior to the time the Employee first becomes eligible to participate under any Qualified Plan maintained by the Employer. The election not to

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participate must be irrevocable and communicated to the Employer, in writing, within a reasonable period of time before the date the Employee would have otherwise entered any Qualified Plan. “Qualified Plan” means, for purposes of this Section, a plan intended to be tax-qualified under Code Section 401(a).

(b)Prior Plan document provision. Notwithstanding anything in this Section to the contrary, if any prior Plan document of this Plan contained a provision permitting an Employee to make a revocable election not to participate and an Employee made such revocable election not to participate while that prior Plan document was in effect, then such Employee may irrevocably revoke such election at any time and participate in the Plan.

(c)Effect on coverage, ADP and ACP Tests. An Employee who elected not to participate under the Plan is treated as a nonbenefiting Employee for purposes of the minimum coverage requirements under Code Section 410(b). Furthermore, such Employee is not a Participant for purposes of the ADP Test or the ACP Test.

3.7OWNER-EMPLOYEE LIMITATION

If this Plan provides contributions or benefits for one or more Owner-Employees, the contributions on behalf of any Owner-Employee shall be made only with respect to the Earned Income for such Owner-Employee which is derived from the trade or business with respect to which such Plan is established.

3.8OMISSION OF ELIGIBLE EMPLOYEE; INCLUSION OF INELIGIBLE EMPLOYEE

If, in any Plan Year, any Employee who should be included as a Participant in the Plan is erroneously omitted and discovery of such omission is not made until after a contribution by the Employer for the year has been made and allocated, or any person who should not have been included as a Participant in the Plan is erroneously included, then the Employer shall apply the principles described by, and take corrective actions consistent with, the IRS Employee Plans Compliance Resolution System.

ARTICLE IV
CONTRIBUTION AND ALLOCATION

4.1FORMULA FOR DETERMINING EMPLOYER CONTRIBUTION

For each Plan Year, the Employer shall contribute to the Plan:

(a)Salary reductions. The amount that all Participants’ Compensation was reduced pursuant to Section 4.2(a), which amount shall be Elective Deferrals.

(b)ADP Test Safe Harbor Contribution. If prior to the start of an intended ADP Test Safe Harbor Plan Year the Employer executes a separate amendment and provides a safe harbor notice (described in Section 4.2(k)(4)) to Participants for one or more specific forthcoming Plan Years (and such amendment and safe harbor notice designates which ADP

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Test Safe Harbor Contribution applies for each such Plan Year, or if the Employer timely distributes only a safe harbor notice that specifies that the Employer reserves the right to amend the Plan, no later than 30 days prior to the end of such Plan Year, to provide the ADP Test Safe Harbor Nonelective Contribution for that Plan Year, and such amendment is timely adopted and a supplemental advance notice is distributed to Participants regarding the adoption of such amendment), then the Employer shall contribute, on behalf of each Participant who is eligible to share in the designated ADP Test Safe Harbor Contribution below, such ADP Test Safe Harbor Contribution. Nothing in this paragraph precludes a Plan from first implementing an ADP Test Safe Harbor Contribution during a Plan Year so long as the requirements of applicable regulations are satisfied.

The ADP Test Safe Harbor Contribution shall be the Basic Matching Contribution set forth in 4.1(b)(1) below, which is intended as a Pension Protection Act (“PPA”) Qualified Automatic Contribution Arrangement (“QACA”).

(1)Basic Matching Contribution. A Basic Matching Contribution equal to the sum of 100% of the amount of the Participant’s Elective Deferrals (including Catch-Up Contributions made pursuant to Section 4.2(b)) that are not in excess of 3% of the Participant’s Compensation, plus 50% of the amount of the Participant’s Elective Deferrals (including Catch-Up Contributions made pursuant to Section 4.2(b)) that exceed 3% of the Participant’s Compensation but not in excess of 5% of the Participant’s Compensation. The Basic Matching Contribution and Compensation will be determined for each payroll period.

(2)Enhanced Matching Contribution. An Enhanced Matching Contribution equal to the sum of 100% of the Participant’s Elective Deferrals (including Catch-Up Contributions made pursuant to Section 4.2(b)) that are not in excess of 4% of the Participant’s Compensation. The Enhanced Matching Contribution and Compensation will be determined for the entire Plan Year.

(3)Nonelective Contribution. A Nonelective Contribution equal to 3% of the Participant’s Compensation for the Plan Year.

Aggregation and disaggregation. The rules that apply for purposes of aggregating and disaggregating cash or deferred arrangements and plans under Code Sections 401(k) and 401(m) also apply for purposes of Code Sections 401(k)(12) and 401(m)(11).

Timing of deposit of ADP Test Safe Harbor Matching Contributions. Matching contributions with respect to a Participant’s Elective Deferrals made during a Plan Year quarter must be contributed to the Plan by the last day of the following Plan Year quarter.

(c)Qualified Nonelective Contribution. On behalf of each Participant who is eligible to share in the Qualified Nonelective Contribution for the Plan Year, a discretionary Qualified Nonelective Contribution equal to a uniform percentage of each eligible

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individual’s Compensation or 415 Compensation. Such Qualified Nonelective Contribution shall be allocated to the Qualified Nonelective Contribution Account.

(d)Nonelective Contributions. A discretionary amount, which amount, if any, shall be a Nonelective Contribution.

(e)Top-Heavy contribution. Additionally, to the extent necessary, the Employer shall contribute to the Plan the amount necessary to provide the top-heavy minimum contribution, even if it exceeds the amount that would be deductible under Code Section 404.

(f)Form of contribution. All contributions by the Employer shall be made in cash or in such property as is acceptable to the Trustee.

4.2PARTICIPANTS SALARY REDUCTION ELECTION

(a)Deferral elections. Each Participant may elect to defer from 1% to 75% of Compensation which would have been received in the Plan Year, but for the deferral election. A deferral election (or modification of an earlier election) may not be made with respect to Compensation which is currently available on or before the date the Participant executed such election. For purposes of this Section, Compensation shall be determined prior to any reductions made pursuant to Code Sections 125, 132(f)(4), 402(e)(3), 402(h)(1)(B), 403(b) or 457(b), and employee contributions described in Code Section 414(h)(2) that are treated as Employer contributions.

For purposes of this Section, the annual dollar limitation of Code Section 401(a)(17) ($200,000 as adjusted) shall not apply except that the Administrator may elect to apply such limit as part of the deferral election procedures established hereunder.

Roth Elective Deferrals. Effective January 1, 2006, a Participant may elect to have all or a portion of the Participant’s Elective Deferrals to be Roth Elective Deferrals when contributed to the Plan. These Roth Elective Deferrals are includible in the Participant’s gross income at the time deferred and must be irrevocably designated as Roth Elective Deferrals by the Participant in the Deferral Election Agreement. Absent a Participant’s affirmative election to have any portion of an Elective Deferral be considered a Roth Elective Deferral, Elective Deferrals shall be treated as Pre-Tax Elective Deferrals.

Deferral elections of bonuses. Additionally, each Participant may elect to defer up to 100% of any cash bonus to be paid by the Employer during the Plan Year. A deferral election may not be made with respect to cash bonuses that are currently available on or before the date the Participant executes such deferral election. However, if an opportunity to make a deferral election is given to a Participant with respect to a cash bonus but such Participant fails to make such a deferral election, then the Participant’s bonus shall not be subject to the deferral election (not to exceed 100% of the bonus) in effect on the day before the day that such Participant’s bonus becomes currently available.

Automatic deferral election procedures. In the event a Participant does not have a salary deferral election in effect and fails to make a new affirmative deferral election, such

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Participant shall be deemed to have made a pre-tax deferral election equal to 3% of Compensation per payroll period. The amount described in the first sentence shall be increased as of the first day of each Plan Year by 1% of Compensation per year up to a maximum of 10% (intended as a PPA QACA).

The amount that is deferred by a Participant shall be subject to the limitations of this Section, shall be an Elective Deferral, and shall be held for such Participant in the Elective Deferral Account.

(b)Catch-Up Contributions. Notwithstanding anything in the Plan to the contrary, effective January 1, 2002, each Catch-Up Eligible Participant shall be eligible to make Catch-Up Contributions during the Participant’s taxable year in accordance with, and subject to the limitations of, Code Section 414(v). Such Catch-Up Contributions are not subject to the limits on Annual Additions under Code Section 415(c), are not counted in the ADP Test of Section 4.5(a), are not counted in determining the minimum allocation required in a Top-Heavy Plan during a Top-Heavy Plan Year under Code Section 416 (but Catch-Up Contributions made in prior years are counted in determining whether the Plan is a Top-Heavy Plan), and are not taken into account under the limit on Elective Deferrals under Code Section 402(g). Catch-Up Contributions may be a dollar amount or a percentage of Compensation for each payroll period not to exceed the applicable dollar limit under Code Section 414(v), pursuant to procedures established by the Administrator. The Plan shall not be treated as failing to satisfy the provisions of the Plan implementing the requirements of Code Section 401(k)(3), 401(k)(12), 416 or 410(b), as applicable, by reason of the making of such Catch-Up Contributions.

(c)Full vesting. Each Participant’s Elective Deferral Account shall be fully Vested at all times and shall not be subject to Forfeiture for any reason.

(d)Distribution restrictions. Notwithstanding anything in the Plan to the contrary, amounts (including any offset of loans) held in the Participant’s Elective Deferral Account may not be distributed except as authorized by other provisions of this Plan, but in no event may such amounts be distributed earlier than:

(1)a Participant’s death, disability or other severance of employment;

(2)a Participant’s attainment of age 59 1/2;

(3)the termination of the Plan without the existence at the time of Plan termination of an alternative defined contribution plan or the establishment of an alternative defined contribution plan by the Employer or an Affiliated Employer within the period ending twelve months after distribution of all assets from the Plan maintained by the Employer. For this purpose, a defined contribution plan is not treated as an alternative defined contribution plan if the plan is an employee stock ownership plan (as defined in Code Section 4975(e)(7) or 409(a)), a simplified employee pension plan (as defined in Code Section 408(k)), a SIMPLE IRA plan (as defined in Code Section 408(p)), a plan or contract that satisfies the requirements of Code Section 403(b), or a plan that is described in Code Sections 457(b) or 457(f).

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Furthermore, if at all times during the 24-month period beginning 12 months before the date of the Plan’s termination, fewer than 2% of the Participants in the Plan as of the date of Plan termination are eligible under the other defined contribution plan, then the other defined contribution plan is not an alternative defined contribution plan. Distributions from the terminating Plan may only be made in lump sum distributions, pursuant to and defined in Regulation 1.401(k)-1(d)(4)(ii);

(4)the proven financial hardship of a Participant, subject to the limitations of Section 6.12.

(e)Suspension due to hardship. In the event a Participant has received a hardship distribution pursuant to Regulation 1.401(k)-1(d)(3)(iv)(E)(2) from this Plan or any other plan maintained by the Employer, then such Participant shall not be permitted to elect to have Elective Deferrals contributed to the Plan for a period of six months following the receipt of the distribution.

(f)Deferrals limited to Code Section 402(g) dollar limit. A Participant’s “elective deferrals” made under this Plan and all other plans, contracts or arrangements of the Employer maintaining this Plan during any calendar year shall not exceed the dollar limitation. For this purpose, “elective deferrals” means, with respect to a calendar year, the sum of all Employer contributions made on behalf of such Participant pursuant to an election to defer under any qualified cash or deferred arrangement as described in Code Section 401(k), any salary reduction simplified employee pension (as defined in Code Section 408(k)(6)), any SIMPLE IRA plan described in Code Section 408(p), any eligible deferred compensation plan under Code Section 457, any plans described under Code Section 501(c)(18), and any Employer contributions made on the behalf of a Participant for the purchase of an annuity contract under Code Section 403(b) pursuant to a salary reduction agreement. “Elective deferrals” shall not include any deferrals properly distributed as excess “Annual Additions” pursuant to Section 4.9. “Dollar limitation” shall mean the dollar limitation contained in Code Section 402(g) in effect for the Participant’s taxable year beginning in such calendar year. In the case of a participant aged 50 and over by the end of the taxable year, the “dollar limitation” described in the preceding sentence shall be adjusted to include the amount of Elective Deferrals that may be treated as Catch-Up Contributions. The “dollar limitation” contained in Code Section 402(g) is $10,500 for taxable years beginning in 2000 and 2001, increasing to $11,000 for taxable years beginning in 2002 and increasing by $1,000 for each year thereafter up to $15,000 for taxable years beginning in 2006 and later years. After 2006 the $15,000 limit will be adjusted by the Secretary of the Treasury for cost-of-living increases under Code Section 402(g)(4). Any such adjustments will be in multiples of $500.

(g)Assigning Excess Deferrals to this Plan. If a Participant’s Elective Deferrals under this Plan together with any elective deferrals (as defined in Regulation 1.402(g)-1(b)) under another qualified cash or deferred arrangement (as described in Code Section 401(k)), a simplified employee pension (as described in Code Section 408(k)(6)), a simple individual retirement account plan (as described in Code Section 408(p)), a salary reduction arrangement (within the meaning of Code Section 3121(a)(5)(D)), or a trust described in Code Section 501(c)(18) cumulatively exceed the “dollar limitation” described in the subsection 4.2(f) of this Section, for such Participant’s taxable year, then the Participant may assign to this Plan any

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Excess Deferrals made during a taxable year of the Participant by notifying the Administrator in writing on or before March 1 following the close of the Participant’s taxable year, of the amount of the Excess Deferrals to be assigned to the Plan. A Participant shall be deemed to notify the Administrator of any Excess Deferrals that arise by taking into account only those Elective Deferrals made to this Plan and any other plan, contract, or arrangement of the Employer.

Notwithstanding any other provision of the Plan to the contrary, the Administrator may direct the Trustee to distribute such Excess Deferrals, plus any Income allocable to such Excess Deferrals, to the Participant not later than the first April 15th following the close of the Participant’s taxable year. Such a distribution may be made to a Participant to whose account Excess Deferrals were assigned for the preceding year or/and who claims Excess Deferrals for such taxable year or calendar year. Any distribution of less than the entire amount of Excess Deferrals and Income shall be treated as a pro rata distribution of Excess Deferrals and Income. The amount of the distribution shall not exceed the Participant’s Elective Deferrals under the Plan for the taxable year (and any Income allocable to such Excess Deferrals). If a distribution of Excess Deferrals is to be made on or before the last day of the Participant’s taxable year, then each of the following conditions must be satisfied:

(1)the distribution must be made after the date on which the Plan received the Excess Deferrals;

(2)the Participant shall designate the distribution as Excess Deferrals; and

(3)the Plan must designate the distribution as a distribution of Excess Deferrals.

Any distribution made pursuant to this Section shall be made first from unmatched Pre-Tax Elective Deferrals and, thereafter, from unmatched Roth Elective Deferrals (unless the Participant elects to reverse that order), and, thereafter, from Pre-Tax Elective Deferrals which are matched, and, thereafter, from Roth Elective Deferrals which are matched, unless the Participant elects to reverse that order.

Matching Contributions that relate to Excess Deferrals (regardless of whether such Excess Deferrals are Pre-Tax Elective Deferrals or Roth Elective Deferrals) which are distributed pursuant to this Section 4.2(g) shall be treated as a Forfeiture.

(h) Coordination with ADP Test. Notwithstanding Section 4.2(g) above, a Participant’s Excess Deferrals shall be reduced, but not below zero, by any distribution of Excess Contributions pursuant to Section 4.6 for the Plan Year beginning with or within the taxable year of the Participant.

(i) Segregation. Elective Deferrals made pursuant to this Section may be segregated into a separate account for each Participant in a federally insured savings account, certificate of deposit in a bank or savings and loan association, money market certificate, or other short-term debt security acceptable to the Trustee until such time as the allocations pursuant to Section 4.4 have been made.

(j)No conditions to receive Elective Deferrals. Notwithstanding anything herein to the contrary, Participants who terminated employment for any reason during the Plan Year shall

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share in the Elective Deferrals made by the Employer for the year of termination without regard to the Hours of Service credited.

(k)Procedures to implement deferral elections. The Employer and the Administrator may adopt a procedure to implement the salary reduction elections provided for herein. If such procedure is adopted, then the procedure shall include (and shall not be limited to) the following:

(1)A Participant must make an initial salary deferral election, or an election to receive cash in lieu of a salary deferral election, unless the Employer has implemented an automatic deferral election feature. If the Participant fails to make an initial salary deferral election, or an election to receive cash in lieu of a salary deferral election, if the automatic deferral election applies, then such Participant may thereafter make an election in accordance with the rules governing modifications. The Participant shall make such an election by entering into a salary reduction agreement with the Employer and filing such agreement with the Administrator. Such election shall initially be effective beginning with the pay period following the acceptance of the salary reduction agreement by the Administrator (or as soon thereafter as practical), shall not have retroactive effect and shall remain in force until revoked.

(2)A Participant may modify a prior salary deferral election at any time during the Plan Year and concurrently make a new election by filing a notice with the Administrator (in accordance with procedures established by the Administrator) within a reasonable time before the pay period for which such modification is to be effective. Any modification shall be implemented as soon as practical after being accepted by the Administrator, shall not have retroactive effect and shall remain in force until revoked.

(3)A Participant may elect to prospectively revoke the Participant’s salary reduction agreement in its entirety at any time during the Plan Year by providing the Administrator with thirty (30) days written notice of such revocation (or upon such shorter notice period as may be acceptable to the Administrator). Such revocation shall become effective as of the beginning of the first pay period coincident with or next following the expiration of the notice period (or as soon thereafter as practical).

(4)If the Employer has already elected the current year ADP testing method and elects to make an ADP Test Safe Harbor Contribution pursuant to Section 4.1(b), or the Employer elects to reserve the right to make the ADP Test Safe Harbor Nonelective Contribution described in that Section, then the Employer, at least thirty (30) days, but not more than ninety (90) days (or some other reasonable period), before the later of the beginning of the Plan Year or the initial effective date of the ADP Safe Harbor arrangement), will provide each Eligible Employee a comprehensive notice, which notice is hereby incorporated by reference and made a part of the Plan, of the Employee’s rights and obligations under the Plan, written (or in such other form as permitted by the Internal Revenue Service) in a manner calculated to be understood by the average Employee. If an Employee becomes eligible after the ninetieth (90th) day before the beginning of the Plan Year and does not receive the notice for that reason, then the notice must be provided no more than ninety (90) days before the Employee becomes eligible but not later than the date the Employee becomes eligible. In addition to any other election periods provided under this

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Section, each Eligible Employee may make or modify a salary reduction election during the thirty (30) day period immediately following receipt of the notice described above.

(5)Any notices or required actions under this subsection may be provided or made in accordance with Section 9.14.

4.3TIME OF PAYMENT OF EMPLOYER CONTRIBUTION

Unless otherwise provided by contract or law, the Employer may make its contribution to the Plan for a particular Plan Year at such time as the Employer, in its sole discretion, determines. However, any Matching Contributions made pursuant to Section 4.1(b) with respect to a Participant’s Elective Deferrals that are made during a payroll period must be contributed to the Plan by the last day of the following Plan Year quarter. If the Employer makes a contribution for a particular Plan Year after the close of that Plan Year, then the Employer will designate to the Administrator the Plan Year for which the Employer is making its contribution.

4.4ALLOCATION OF CONTRIBUTION AND USAGE OF FORFEITURES AND EARNINGS

(a)Separate accounting. The Administrator shall establish and maintain an account in the name of each Participant to which the Administrator shall credit as of each Anniversary Date, or other Valuation Date, all amounts allocated to a particular Account of each such Participant as set forth herein.

(b)Allocation of contributions. The Employer shall provide the Administrator with all information required by the Administrator to make a proper allocation of the Employer contributions for each Plan Year. Within a reasonable period of time after the date of receipt by the Administrator of such information, the Administrator shall allocate such contribution as follows:

(1)Elective Deferrals. With respect to the Elective Deferrals made pursuant to Section 4.1(a), to each Participant’s Elective Deferral Account.

(2)ADP Test Safe Harbor contributions. With respect to the ADP Test Safe Harbor Contribution made pursuant to Section 4.1(b), to each Participant’s Qualified Matching Contribution Account (if a Basic or Enhanced Matching Contribution is made) or Qualified Nonelective Contribution Account (if a Nonelective Contribution is made).

(3)Qualified Nonelective Contributions. With respect to the Qualified Nonelective Contribution made pursuant to Section 4.1(c), to each Participant’s Qualified Nonelective Contribution Account in accordance with Section 4.1(c).

The Employer may limit such Qualified Nonelective Contributions only to Participants who are Nonhighly Compensated Employees and/or Non-Key Employees. In addition, the Employer may condition such Qualified Nonelective Contributions only to Participants who have completed a Period of Service (or portion

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thereof) during the Plan Year and/or who are employed on the last day of the Plan Year.

(4)Nonelective Contributions. With respect to the Nonelective Contribution made pursuant to Section 4.1(d), to each Participant’s Nonelective Contribution Account in the same proportion that each such Participant’s Compensation for the year bears to the total Compensation of all Participants for such year.

(5)Entitlement to Nonelective Contribution. Only Participants who are employed on the last day of the Plan Year shall be eligible to share in the discretionary contribution made pursuant to Section 4.1(d) for the year.

(6)Waiver of conditions to share in Nonelective Contributions. Notwithstanding the foregoing, Participants who are not employed on the last day of the Plan Year due to Retirement (Early, Normal or Late), Disability or death shall share in the allocation of Nonelective Contributions for that Plan Year.

(c)Usage of Forfeitures. On or before each Anniversary Date, any Forfeitures may be made available to reinstate previously forfeited Account balances of Participants, if any, in accordance with Section 3.5(d), and any remaining Forfeitures may be used to satisfy any contribution that may be required pursuant to Section 3.8 or 6.10, or be used to pay any administrative expenses of the Plan. The remaining Forfeitures, if any, shall be allocated in the following manner:

(1)Forfeitures attributable to employer Matching Contribution accounts and Nonelective Contribution accounts made pursuant to Section 4.1(d) shall be used to reduce the Employer’s contributions for the Plan Year or succeeding Plan Year.

(d)Minimum required allocation to those not otherwise eligible to share. For any Top-Heavy Plan Year, Non-Key Employees not otherwise eligible to share in the allocation of contributions as provided above, shall receive the minimum required allocation of Section 4.4(g) if eligible pursuant to the provisions of Section 4.4(j).

(e)Allocation of earnings. As of each Valuation Date, before the current valuation period allocation of Employer contributions, any earnings or losses (net appreciation or net depreciation) of the Trust Fund shall be allocated in the same proportion that each Participant’s nonsegregated accounts bear to the total of all Participants’ nonsegregated accounts as of such date. Earnings or losses with respect to a Participant’s Directed Account shall be allocated in accordance with Section 4.14.

(f)Incoming transfers and rollovers. Participants’ transfers from other qualified plans and rollovers deposited in the general Trust Fund shall share in any earnings and losses (net appreciation or net depreciation) of the Trust Fund in the same manner provided above. Each segregated account maintained on behalf of a Participant shall be credited or charged with its separate earnings and losses.

(g)Minimum required allocation for Top-Heavy Plan Years. Notwithstanding the foregoing, for any Top-Heavy Plan Year, the sum of the Employer contributions allocated to

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the Account of each Non-Key Employee shall be equal to at least three percent (3%) of such Non-Key Employee’s 415 Compensation (reduced by contributions and forfeitures, if any, allocated to each Non-Key Employee in any defined contribution plan included with this Plan in a required aggregation group). However, if (1) the sum of the Employer contributions allocated to the Participant’s Account of each Key Employee for such Top-Heavy Plan Year is less than three percent (3%) of each Key Employee’s 415 Compensation and (2) this Plan is not required to be included in an aggregation group to enable a defined benefit plan to meet the requirements of Code Section 401(a)(4) or 410, then the sum of the Employer contributions allocated to the Participant’s Account of each Non-Key Employee shall be equal to the largest percentage allocated to the Account of any Key Employee. However, in determining whether a Non-Key Employee has received the minimum required allocation, such Non-Key Employee’s Elective Deferrals shall not be taken into account. The minimum allocation required (to the extent required to be nonforfeitable under Code Section 416(b)) may not be forfeited under Code Section 411(a)(3)(B) or 411(a)(3)(D).

However, no minimum required allocation shall be required in this Plan for any Non-Key Employee who participates in another defined contribution plan subject to Code Section 412 included with this Plan in a required aggregation group, if the other defined contribution plan subject to Code Section 412 satisfies the minimum required allocation.

(h)Top-Heavy contribution allocation. For purposes of the minimum required allocation set forth above, the percentage allocated to the Account of any Key Employee who is a Participant shall be equal to the ratio of the sum of the Employer contributions (excluding any Catch-Up Contributions) allocated on behalf of such Key Employee for the Plan Year divided by the 415 Compensation for such Key Employee for the Plan Year.

(i)Matching contributions used to satisfy top-heavy contribution. Matching Contributions (including ADP Test Safe Harbor Matching Contributions within the meaning of Section 1.9) shall be taken into account for purposes of satisfying the minimum required allocation of Code Section 416(c)(2) and the Plan. The preceding sentence shall apply with respect to Matching Contributions under the Plan or, if the Plan provides that the minimum required allocation shall be met in another plan, such other plan. Matching Contributions that are used to satisfy the minimum required allocation shall be treated as Matching Contributions for purposes of the ACP Test and other requirements of Code Section 401(m).

(j)Participants eligible for top-heavy allocation. For any Top-Heavy Plan Year, the minimum required allocation set forth above shall be allocated to the Nonelective Contribution Account of all Non-Key Employees who are Participants and who are employed by the Employer on the last day of the Plan Year regardless of the Non-Key Employee’s level of Compensation, including Non-Key Employees who have (1) failed to complete a Period of Service; and (2) declined to make mandatory contributions (if required) or, in the case of a cash or deferred arrangement, Elective Deferrals to the Plan.

(k)415 Compensation for top-heavy purposes. For the purposes of this Section, 415 Compensation will be limited to the same dollar limitations set forth in Section 1.20, adjusted in such manner as permitted under Code Section 415(d).

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(l)Delay in processing transactions. Notwithstanding anything in this Section to the contrary, all information necessary to properly reflect a given transaction may not be available until after the date specified herein for processing such transaction, in which case the transaction will be reflected when such information is received and processed. Subject to express limits that may be imposed under the Code, the processing of any contribution, distribution or other transaction may be delayed for any legitimate business reason or force majeure (including, but not limited to, failure of systems or computer programs, failure of the means of the transmission of data, the failure of a service provider to timely receive values or prices, and the correction for errors or omissions or the errors or omissions of any service provider). The processing date of a transaction will be binding for all purposes of the Plan.

4.5ACTUAL DEFERRAL PERCENTAGE TEST

(a)ADP Test. The ADP for Highly Compensated Employees who are Participants for each Plan Year and the ADP for Nonhighly Compensated Employees who are Participants for each Plan Year (or for the preceding Plan Year if the prior year testing method is used) shall satisfy one of the following tests:

(1)The ADP for the group of Highly Compensated Employees who are Participants shall not exceed the ADP for the group of Nonhighly Compensated Employees who are Participants (for the preceding Plan Year if the prior year testing method is used to calculate the ADP for the group of Nonhighly Compensated Employees who are Participants) multiplied by 1.25, or

(2)The ADP for the group of Highly Compensated Employees who are Participants shall not exceed the ADP for the group of Nonhighly Compensated Employees who are Participants (for the preceding Plan Year, if the prior year testing method is used to calculate the ADP for the group of Nonhighly Compensated Employees who are Participants) by more than two percentage points. Furthermore, the ADP for the group of Highly Compensated Employees who are Participants shall not exceed the ADP for the group of Nonhighly Compensated Employees who are Participants (for the preceding Plan Year, if the prior year testing method is used to calculate the ADP for the group of Nonhighly Compensated Employees who are Participants) multiplied by 2.

(b)Prior Year test upon amendment. Notwithstanding the above, if the prior year test method is used to calculate the ADP for the group of Nonhighly Compensated Employees who are Participants for the first Plan Year of this amendment and restatement, then the ADP for the group of Nonhighly Compensated Employees who are Participants for the preceding Plan Year shall be calculated pursuant to the provisions of the Plan then in effect.

(c)Participant regardless of deferral election. For the purposes of Sections 4.5(a) and 4.6, a Participant shall be any Employee eligible to make a deferral election pursuant to Section 4.2 at any point during the Plan Year, whether or not such deferral election was made or suspended pursuant to Section 4.2.

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(d)Aggregation with other plans. In the event this Plan satisfies the requirements of Code Sections 401(a)(4), 401(k), or 410(b) only if aggregated with one or more other plans, or if one or more other plans satisfy the requirements of such Code Sections only if aggregated with this Plan, then this Section shall be applied by determining the ADP of Employees as if all such plans were a single plan. If more than ten percent (10%) of the Employees Nonhighly Compensated Employees are involved in a plan coverage change as defined in Regulation Section 1.401(k)-2(c)(4), then any adjustments to the Nonhighly Compensated Employees’ ADP for the prior year will be made in accordance with such Regulations, unless the Employer has elected to use the current year testing method. Plans may be aggregated in order to satisfy Code Section 401(k) only if they have the same Plan Year and use the same ADP Testing method.

(e)ADP of Highly Compensated Employee in multiple plans. For the purposes of this Section, the ADP for any Participant who is a Highly Compensated Employee for the Plan Year and who is eligible to have Elective Deferrals (and Qualified Nonelective Contributions and/or Qualified Matching Contributions, if treated as Elective Deferrals for purposes of the ADP Test) allocated to the Participant’s accounts under two or more cash or deferred arrangements described in Code Section 401(k) of the Employer or an Affiliated Employer, shall be determined as if such Elective Deferrals (and, if applicable, such Qualified Nonelective Contributions and/or Qualified Matching Contributions) were made under a single cash or deferred arrangement. If a Highly Compensated Employee participates in two or more cash or deferred arrangements of the Employer or an Affiliated Employer that have different plan years, then all Elective Deferrals made during the Plan Year under all such arrangements shall be aggregated. Notwithstanding the foregoing, certain plans shall be treated as separate if mandatorily disaggregated under the Regulations of Code Sections 401(k) or 410(b).

(f)Testing method. For the purpose of this Section, when calculating the ADP for the group of Nonhighly Compensated Employees who are Participants, the current year testing method shall be used. Once the current year testing method has been elected, then the Employer may elect to use the prior year testing method for a Plan Year only if the Plan has used the current year testing method for each of the preceding 5 Plan Years (or if lesser, the number of Plan Years that the Plan has been in existence) or if, as a result of a merger or acquisition described in Code Section 410(b)(6)(C)(i), the Employer maintains both a plan using prior year testing method and a plan using current year testing method and the change is made within the transition period described in Code Section 410(b)(6)(C)(ii).

(g)Otherwise excludable Employee and early participation rules. Notwithstanding anything in this Section to the contrary, the provisions of this Section and Section 4.6 may be applied separately (or will be applied separately to the extent required by Regulations) to each “plan” within the meaning of Regulation Section 1.401(k)-1(b)(4)(iv). For purposes of applying this provision, the Administrator may use any effective date of participation that is permitted under Code Section 410(b) provided such date is applied on a consistent and uniform basis to all Participants. Alternatively, the provisions of Code Section 401(k)(3)(F) may be used to exclude from consideration all Nonhighly Compensated Employees who have not satisfied the greatest minimum age and service requirements of Code Section 410(a)(1)(A).

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(h)ADP Test does not apply when ADP Test Safe Harbor applies. Notwithstanding the above, for any Plan Year in which the ADP Test Safe Harbor Contribution and Notice requirements of Section 4.1(b) are met, the provisions of this Section of the Plan shall not apply.

(i)Timing of allocations. For purposes of determining the ADP Test, only Elective Deferrals, Qualified Nonelective Contributions and Qualified Matching Contributions that are contributed to the Plan prior to the end of the twelve (12) month period immediately following the Plan Year to which the contributions relate shall be considered.

(j)Targeted Qualified Nonelective Contributions. Notwithstanding the preceding, Qualified Nonelective Contributions cannot be taken into account in determining the ADR for a Plan Year for a Nonhighly Compensated Employee to the extent such contributions exceed the product of that Nonhighly Compensated Employee’s 414(s) Compensation and the greater of five percent (5%) or two (2) times the Plan’s “representative contribution rate.” Any Qualified Nonelective Contribution taken into account under an ACP Test under Regulation Section 1.401(m)-2(a)(6) (including the determination of the representative contribution rate for purposes of Regulation Section 1.401(m)-2(a)(6)(v)(B)), is not permitted to be taken into account for purposes of this paragraph (including the determination of the representative contribution rate under this Section). For purposes of this subsection:

(1)The Plan’s “representative contribution rate” is the lowest applicable contribution rate of any eligible Nonhighly Compensated Employee among a group of eligible Nonhighly Compensated Employees that consists of half of all eligible Nonhighly Compensated Employees for the Plan Year (or, if greater, the lowest “applicable contribution rate” of any eligible Nonhighly Compensated Employee in the group of all eligible Nonhighly Compensated Employees for the Plan Year and who is employed by the Employer on the last day of the Plan Year), and

(2)The “applicable contribution rate” for an eligible Nonhighly Compensated Employee is the sum of the Qualified Matching Contributions taken into account for the eligible Nonhighly Compensated Employee for the Plan Year and the Qualified Contributions made for the eligible Nonhighly Compensated Employee for the Plan Year, divided by the eligible Nonhighly Compensated Employee’s 414(s) Compensation for the same period.

Restriction on Qualified Matching Contributions. Qualified Matching Contributions may only be used to calculate the ADP to the extent that such Qualified Matching Contributions are Matching Contributions that are not precluded from being taken into account for ACP Test purposes under the rules of Regulation Section 1.401(m)-2(a)(5)(ii).

Restrictions of Qualified Nonelective Contributions and Qualified Matching Contributions. Qualified Nonelective Contributions and Qualified Matching Contributions cannot be taken into account to determine the ADP to the extent such contributions are taken

42

into account for purposes of satisfying any other ADP Test, any ACP Test, or the requirements of Regulation Sections 1.401(k)-3, 1.401(m)-3 or 1.401(k)-4. Thus, for example, Matching Contributions that are made pursuant to Regulation Section 1.401(k)-3(c) cannot be taken into account under the ADP Test. Similarly, if a plan switches from the current year testing method to the prior year testing method pursuant to Regulation Section 1.401(k)-2(c), then Qualified Nonelective Contributions that are taken into account under the current year testing method for a year may not be taken into account under the prior year testing method for the next year.

(k)ADP when no Nonhighly Compensated Employees. If, for the applicable year for determining the ADP of the Nonhighly Compensated Employees for a Plan Year, there are no eligible Nonhighly Compensated Employees, then the Plan is deemed to satisfy the ADP Test for the Plan Year.

4.6ADJUSTMENT TO ACTUAL DEFERRAL PERCENTAGE TEST

(a)Authority to correct. In the event that the initial allocations of the Elective Deferrals made pursuant to Section 4.2 do not satisfy the ADP Test set forth in Section 4.5(a), the Administrator shall implement some or all of the provisions of this Section in order to correct such failure.

(b)Corrective action. The Participant who is the Highly Compensated Employee having the largest dollar amount of Elective Deferrals shall have a portion of such Participant’s Elective Deferrals first treated as Catch-Up Contributions and then distributed until the amount of such Participant’s remaining Elective Deferrals equals the Elective Deferrals (less Catch-Up Contributions) of the Participant who is the Highly Compensated Employee having the second largest dollar amount of Elective Deferrals (less Catch-Up Contributions). This process shall continue until the total amount of Excess Contributions has been eliminated. In determining the amount of Excess Contributions to be treated as Catch-Up Contributions and/or distributed with respect to an affected Participant who is a Highly Compensated Employee as determined herein, such amount shall be reduced pursuant to Section 4.2(g) by any Excess Deferrals previously distributed to such affected Participant who is a Highly Compensated Employee for such Participant’s taxable year ending with or within such Plan Year.

(1)Corrective distribution. With respect to the distribution of Excess Contributions pursuant to (a) above, such distribution:

(i)may be postponed but not later than the last day of the twelve-month period following the Plan Year to which they are allocable;

(ii)shall be adjusted for Income; and

(iii)shall be designated by the Employer as a distribution of Excess Contributions (and Income).

Matching contributions which relate to Excess Contributions that are distributed pursuant to this subsection shall be treated as a Forfeiture to

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the extent required pursuant to Code Section 401(a)(4) and the Regulations thereunder, unless the related Matching Contribution is distributed as an Excess Contribution or as an Excess Aggregate Contribution.

(2)Income and principal. Any distribution of less than the entire amount of Excess Contributions shall be treated as a pro rata distribution of Excess Contributions and Income.

(c)Corrective contributions. Notwithstanding the above, if the current year testing method is used, within twelve (12) months after the end of the Plan Year, the Employer may make a Qualified Nonelective Contribution or Qualified Matching Contribution in accordance with one of the following provisions which contribution shall be allocated either to the Qualified Nonelective Contribution Account or Qualified Matching Contribution Account of each Participant who is a Nonhighly Compensated Employee eligible to share in the allocation in accordance with such provision. If the prior year testing method is used, then neither a Qualified Nonelective Contribution nor a Qualified Matching Contribution may be made to correct a failed ADP test. The Employer shall provide the Administrator with written notification of the amount of the contribution being made and for which provision it is being made pursuant to:

(1)A Qualified Nonelective Contribution may be made on behalf of Nonhighly Compensated Participants in an amount sufficient to satisfy one of the tests set forth in Section 4.5(a). Such contribution shall be allocated in the same proportion that each Nonhighly Compensated Employee’s 414(s) Compensation for the year bears to the total 414(s) Compensation of all Nonhighly Compensated Employees for such year.

(2)A Qualified Nonelective Contribution may be made on behalf of Nonhighly Compensated Employees in an amount sufficient to satisfy one of the tests set forth in Section 4.5(a). Such contribution shall be allocated in the same proportion that each Nonhighly Compensated Employee’s 414(s) Compensation for the year bears to the total 414(s) Compensation of all Nonhighly Compensated Employees for such year. However, for purposes of this contribution, Nonhighly Compensated Employees who are not employed at the end of the Plan Year shall not be eligible to share in the allocation and shall be disregarded.

(3)A Qualified Nonelective Contribution may be made on behalf of Nonhighly Compensated Employees in an amount sufficient to satisfy one of the tests set forth in Section 4.5(a). Such contribution shall be allocated in equal amounts (per capita).

(4)A Qualified Nonelective Contribution may be made on behalf of Nonhighly Compensated Employees in an amount sufficient to satisfy one of the tests set forth in Section 4.5(a). Such contribution shall be allocated in equal amounts (per capita). However, for purposes of this contribution, Nonhighly Compensated Employees who

44

are not employed at the end of the Plan Year shall not be eligible to share in the allocation and shall be disregarded.

(5)A Qualified Nonelective Contribution may be made on behalf of Nonhighly Compensated Employees in an amount sufficient to satisfy one of the tests set forth in Section 4.5(a). Such contribution shall be allocated to the Qualified Nonelective Contribution Account of the Nonhighly Compensated Employee having the lowest 414(s) Compensation, until one of the tests set forth in Section 4.5(a) is satisfied, or until such Nonhighly Compensated Employee has received the maximum permissible amount pursuant to Section 4.9 or the maximum that may be taken into account in the ADP Test pursuant to Section 4.5(j) (Targeted Qualified Nonelective Contributions). This process shall continue until one of the tests set forth in Section 4.5(a) is satisfied.

(6)A Qualified Nonelective Contribution may be made on behalf of Nonhighly Compensated Employees in an amount sufficient to satisfy one of the tests set forth in Section 4.5(a). Such contribution shall be allocated to the Qualified Nonelective Contribution Account of the Nonhighly Compensated Employee having the lowest 414(s) Compensation, until one of the tests set forth in Section 4.5(a) is satisfied, or until such Nonhighly Compensated Employee has received the maximum permissible amount pursuant to Section 4.9 or the maximum that may be taken into account in the ADP Test pursuant to Section 4.5(j) (Targeted Qualified Nonelective Contributions). This process shall continue until one of the tests set forth in Section 4.5(a) is satisfied. However, for purposes of this contribution, Nonhighly Compensated Employees who are not employed at the end of the Plan Year shall not be eligible to share in the allocation and shall be disregarded.

(7)A Qualified Matching Contribution may be made on behalf of Nonhighly Compensated Employees in an amount sufficient to satisfy one of the tests set forth in Section 4.5(a). Such contribution shall be allocated to the Qualified Matching Contribution Account of each Nonhighly Compensated Employee in the same proportion that each Nonhighly Compensated Employee’s Elective Deferrals for the year bears to the total Elective Deferrals of all Nonhighly Compensated Employees.

(8)A Qualified Matching Contribution may be made on behalf of Nonhighly Compensated Employees in an amount sufficient to satisfy one of the tests set forth in Section 4.5(a). Such contribution shall be allocated to the Qualified Matching Contribution Account of each Nonhighly Compensated Employee in the same proportion that each Nonhighly Compensated Employee’s Elective Deferrals for the year bears to the total Elective Deferrals of all Nonhighly Compensated Employees. However, for purposes of this contribution, Nonhighly Compensated Employees who are not employed at the end of the Plan Year shall not be eligible to share in the allocation and shall be disregarded.

(9)A Qualified Matching Contribution may be made on behalf of Nonhighly Compensated Employees in an amount sufficient to satisfy one of the tests set forth in Section 4.5(a). Such contribution shall be allocated to the Qualified Matching Contribution Account of the Nonhighly Compensated Employee having the lowest

45

Elective Deferrals until one of the tests set forth in Section 4.5(a) is satisfied, or until such Nonhighly Compensated Employee has received the maximum permissible amount pursuant to Section 4.9, subject to the restriction on Qualified Matching Contributions imposed by the provisions of Section 4.7(h). This process shall continue until one of the tests set forth in Section 4.5(a) is satisfied.

(10)A Qualified Matching Contribution may be made on behalf of Nonhighly Compensated Employees in an amount sufficient to satisfy one of the tests set forth in Section 4.5(a). Such contribution shall be allocated to the Qualified Matching Contribution Account of the Nonhighly Compensated Employee having the lowest Elective Deferrals until one of the tests set forth in Section 4.5(a) is satisfied, or until such Nonhighly Compensated Employee has received the maximum permissible amount pursuant to Section 4.9, subject to the restriction on Qualified Matching Contributions imposed by the provisions of Section 4.7(h). This process shall continue until one of the tests set forth in Section 4.5(a) is satisfied). However, for purposes of this contribution, Nonhighly Compensated Employees who are not employed at the end of the Plan Year shall not be eligible to share in the allocation and shall be disregarded.

Notwithstanding the above, if the testing method changes from the current year testing method to the prior year testing method, then for purposes of preventing the double counting of Qualified Nonelective Contributions for the first testing year for which the change is effective, any special Qualified Nonelective Contribution on behalf of Nonhighly Compensated Participants used to satisfy the ADP Test or the ACP Test under the current year testing method for the prior year testing year shall be disregarded.

(d)Administrator may prevent projected failure. If during a Plan Year, it is projected that the aggregate amount of Elective Deferrals to be allocated to all Highly Compensated Participants under this Plan would cause the Plan to fail the tests set forth in Section 4.5(a), then the Administrator may automatically reduce the deferral amount of affected Highly Compensated Participants, beginning with the Highly Compensated Participant who has the highest ADR until it is anticipated the Plan will pass the tests or until such Participant’s ADR equals the ADR of the Highly Compensated Participant having the next highest ADR. This process may continue until it is anticipated that the Plan will satisfy one of the tests set forth in Section 4.5(a). Alternatively, the Employer may specify a maximum percentage of Compensation that may be deferred.

(e)Excise tax after 2 1/2 months. Any Excess Contributions (and Income) which are distributed on or after 2 1/2 months after the end of the Plan Year shall be subject to the ten percent (10%) Employer excise tax imposed by Code Section 4979.

4.7ACTUAL CONTRIBUTION PERCENTAGE TEST

(a)ACP Test. The ACP for Highly Compensated Employees who are Participants for each Plan Year and the ACP for Nonhighly Compensated Employees who are Participants for each Plan Year (or for the preceding Plan Year if the prior year testing method is used) shall satisfy one of the following tests:

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(1)The ACP for the group of Highly Compensated Employees who are Participants shall not exceed the ACP for the group of Nonhighly Compensated Employees who are Participants (for the preceding Plan Year if the prior year testing method is used to calculate the ACP for the group of Nonhighly Compensated Employees who are Participants) multiplied by 1.25; or

(2)The ACP for the group of Highly Compensated Employees who are Participants shall not exceed the ACP for the group of Nonhighly Compensated Employees who are Participants (for the preceding Plan Year, if the prior year testing method is used to calculate the ACP for the group of Nonhighly Compensated Employees who are Participants) by more than two percentage points. Furthermore, the ACP for the group of Highly Compensated Employees who are Participants shall not exceed the ACP for the group of Nonhighly Compensated Employees who are Participants (for the preceding Plan Year, if the prior year testing method is used to calculate the ACP for the group of Nonhighly Compensated Employees who are Participants) multiplied by 2.

(b)Prior-year test upon amendment. Notwithstanding the above, if the prior year test method is used to calculate the ACP for the group of Nonhighly Compensated Employees who are Participants for the first Plan Year of this amendment and restatement, then the ACP for the group of Nonhighly Compensated Employees who are Participants for the preceding Plan Year shall be calculated pursuant to the provisions of the Plan then in effect.

(c)Aggregation with other plans. In the event that this Plan satisfies the requirements of Code Sections 401(a)(4), 401(m), or 410(b) only if aggregated with one or more other plans, or if one or more other plans satisfy the requirements of such sections of the Code only if aggregated with this Plan (other than the average benefits test under Code Section 410(b)(2)(A)(ii)), then this Section shall be applied by determining the ACP of Employees as if all such plans were a single plan. If more than ten percent (10%) of the Employer’s Nonhighly Compensated Employees are involved in a plan coverage change as defined in Regulation Section 1.401(m)-2(c)(4), then any adjustments to the Nonhighly Compensated Employees ACP for the prior year will be made in accordance with such Regulations, unless the Employer has elected to use the current year testing method. Plans may be aggregated in order to satisfy Code Section 401(m) only if they have the same Plan Year and use the same ACP testing method.

(d)ACP of Highly Compensated Employee in multiple plans. For the purposes of this Section, if a Highly Compensated Employee is a Participant under two (2) or more plans which are maintained by the Employer or an Affiliated Employer to which Matching Contributions, nondeductible Employee contributions, or both, are made, then all such contributions on behalf of such Highly Compensated Employee shall be aggregated for purposes of determining such Highly Compensated Employee’s ACR. If the plans have different plan years, then all such contributions made during the Plan Year under all such arrangements shall be aggregated. Notwithstanding the foregoing, certain plans shall be treated as separate if mandatorily disaggregated under Regulations under Code Section 401(m).

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(e)Current year testing method. For the purpose of this Section, when calculating the ACP for the group of Nonhighly Compensated Employees who are Participants, the current year testing method shall be used. Once the current year testing method has been elected, then the Employer may elect to use the prior year testing method for a Plan Year only if the Plan has used the current year testing method for each of the preceding 5 Plan Years (or if lesser, the number of Plan Years that the Plan has been in existence) or if, as a result of a merger or acquisition described in Code Section 410(b)(6)(C)(i), the Employer maintains both a plan using prior year testing method and a plan using current year testing method and the change is made within the transition period described in Code Section 410(b)(6)(C)(ii).

(f)Otherwise excludable Employee and early participation rules. Notwithstanding anything in this Section to the contrary, the provisions of this Section and Section 4.8 may be applied separately (or will be applied separately to the extent required by Regulations) to each plan within the meaning of Regulation Section 1.401(m)-1(b)(4). For purposes of applying this provision, the Administrator may use any effective date of participation that is permitted under Code Section 410(b) provided such date is applied on a consistent and uniform basis to all Participants. Alternatively, the provisions of Code Section 401(m)(5)(C) may be used to exclude from consideration all Nonhighly Compensated Employees who have not satisfied the greatest minimum age and service requirements of Code Section 410(a)(1)(A).

(g)ACP Test does not apply when ACP Test Safe Harbor Contributions made. Notwithstanding the above, if all Matching Contributions made for a specific Plan Year satisfy the provisions of Code Section 401(m)(11), the provisions of this Section of the Plan shall not apply to those Matching Contributions.

(h)Targeted Matching Contributions. Notwithstanding the preceding, a Matching Contribution (and a Qualified Matching Contribution not used in the ADP Test) with respect to an Elective Deferral for a year is not taken into account in determining the ACP for Nonhighly Compensated Employees to the extent it exceeds the greatest of:

(1)five percent (5%) of the Participant’s 414(s) Compensation for the year;

(2)the Employee’s Elective Deferrals for the year; and

(3)the product of two (2) times the Plan’s “representative matching rate” and the Participant’s Elective Deferrals for the year.

For purposes of this subsection, the Plan’s “representative matching rate” is the lowest “matching rate” for any eligible Nonhighly Compensated Employee among a group of Nonhighly Compensated Employees that consists of half of all eligible Nonhighly Compensated Employees in the Plan for the Plan Year who make Elective Deferrals for the Plan Year (or, if greater, the lowest “matching rate” for all eligible Nonhighly Compensated Employees in the Plan who are employed by the Employer on the last day of the Plan Year and who make Elective Deferrals for the Plan Year).

For purposes of this subsection, the “matching rate” for an Employee generally is the Matching Contributions (and Qualified Matching Contributions not used in the ADP

48

Test) made for such Employee divided by the Employee’s Elective Deferrals for the year. If the matching rate is not the same for all levels of Elective Deferrals for an Employee, then the Employee’s “matching rate” is determined assuming that an Employee’s Elective Deferrals are equal to six percent (6%) of 414(s) Compensation.

(i)Targeted Qualified Nonelective Contributions. Notwithstanding the preceding, Qualified Nonelective Contributions cannot be taken into account in determining the ACR for a Plan Year for a Nonhighly Compensated Employee to the extent such contributions exceed the product of that Nonhighly Compensated Employee’s 414(s) Compensation and the greater of five percent (5%) or two times the Plan’s “representative contribution rate.” Any Qualified Nonelective Contribution taken into account in the ADP test under Regulation Section 1.401(k)-2(a)(6) (including determination of the representative contribution rate for purposes of Regulation Section 1.401(k)-2(a)(6)(iv)(B)), is not permitted to be taken into account for purposes of this paragraph (including the determination of the representative contribution rate under this Section). For purposes of this subsection:

(1)The Plan’s “representative contribution rate” is the lowest applicable contribution rate of any eligible Nonhighly Compensated Employee among a group of eligible Nonhighly Compensated Employees that consists of half of all eligible Nonhighly Compensated Employees for the Plan Year (or, if greater, the lowest “applicable contribution rate” of any eligible Nonhighly Compensated Employee in the group of all eligible Nonhighly Compensated Employees for the Plan Year and who is employed by the Employer on the last day of the Plan Year), and

(2)The “applicable contribution rate” for an eligible Nonhighly Compensated Employee is the sum of the Matching Contributions taken into account under this Section for the eligible Nonhighly Compensated Employee for the Plan Year and the Qualified Nonelective Contributions taken into account under this Section made for the eligible Nonhighly Compensated Employee for the Plan Year, divided by the eligible Nonhighly Compensated Employee’s 414(s) Compensation for the same period.

Restrictions of Qualified Nonelective Contributions and Qualified Matching Contributions. Qualified Nonelective Contributions and Qualified Matching Contributions cannot be taken into account to determine the ACP to the extent such contributions are taken into account for purposes of satisfying any other ACP Test, any ADP Test, or the requirements of Regulation Sections 1.401(k)-3, 1.401(m)-3 or 1.401(k)-4. Thus, for example, Qualified Nonelective Contributions that are made pursuant to Regulation Section 1.401(k)-3(b) cannot be taken into account under the ACP Test. Similarly, if a plan switches from the current year testing method to the prior year testing method pursuant to Regulation Section 1.401(m)-2(c)(1), then Qualified Nonelective Contributions that are taken into account under the current year testing method for a year may not be taken into account under the prior year testing method for the next year.

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(j)ACP when no Nonhighly Compensated Employees. If, for the applicable year for determining the ACP of the Nonhighly Compensated Employees for a Plan Year, there are no eligible Nonhighly Compensated Employees, then the Plan is deemed to satisfy the ACP Test for the Plan Year.

4.8ADJUSTMENT TO ACTUAL CONTRIBUTION PERCENTAGE TEST

(a)Authority to correct. In the event that the ACP Test set forth in Section 4.7(a) is not satisfied, the Administrator shall implement some or all of the provisions of this Section in order to correct such failure.

(b)Corrective distribution or Forfeiture. On or before the close of the following Plan Year, the Participant who is the Highly Compensated Employee having the largest dollar amount of Contribution Percentage Amounts shall have a portion of such Contribution Percentage Amounts (and Income allocable to such amounts) distributed or, if non-Vested, treated as a Forfeiture (including Income allocable to such Forfeitures) until the total amount of Excess Aggregate Contributions has been distributed, or until the amount of the Participant’s Contribution Percentage Amounts equals the Contribution Percentage Amounts of the Participant who is a Highly Compensated Employee having the next largest amount of Contribution Percentage Amounts. This process shall continue until the total amount of Excess Aggregate Contributions has been distributed or forfeited. Any distribution and/or Forfeiture of Contribution Percentage Amounts shall be made in the following order:

(1)Matching Contributions distributed and/or forfeited pursuant to Section 4.6(b);

(2)Any remaining Matching Contributions.

If the distribution of Excess Aggregate Contributions attributable to Matching Contributions is not in proportion to the Vested and non-Vested portion of such Matching Contributions, then the Vested portion of the Participant’s Matching Contribution Account after the distribution shall be subject to Section 6.5(e).

(c)Source of corrective distribution or Forfeiture. Any distribution and/or Forfeiture of less than the entire amount of Excess Aggregate Contributions (and Income) shall be treated as a pro rata distribution and/or Forfeiture of Excess Aggregate Contributions (and Income). Distribution of Excess Aggregate Contributions shall be designated by the Employer as a distribution of Excess Aggregate Contributions (and Income). Forfeitures of Excess Aggregate Contributions shall be treated in accordance with Section 4.4.

(d)Treatment of Excess Aggregate Contributions. Excess Aggregate Contributions shall be treated as Employer contributions for purposes of Code Sections 404 and 415 even if distributed from the Plan.

(e)Ordering of tests. The determination of the amount of Excess Aggregate Contributions with respect to any Plan Year shall be made after first determining the Excess Contributions, if any, to be treated as After-Tax Voluntary Contributions due to

50

recharacterization for the Plan Year of any other qualified cash or deferred arrangement (as defined in Code Section 401(k)) maintained by the Employer that ends with or within the Plan Year.

(f)Administrator may prevent projected failure. If during a Plan Year the projected aggregate Contribution Percentage Amounts to be allocated to all Participants who are Highly Compensated Employees under this Plan would, by virtue of the ACP Test of Section 4.7(a), cause the Plan to fail the ACP Test, then the Administrator may automatically reduce proportionately or in the order provided in Section 4.8(b) the projected share each affected Participant who is a Highly Compensated Employee of such contributions by an amount necessary to satisfy the ACP Test of Section 4.7(a).

(g)Corrective contributions. Notwithstanding the above, if the current year testing method is used, within twelve (12) months after the end of the Plan Year, the Employer may make a Qualified Nonelective Contribution, Qualified Matching Contribution, or Matching Contribution in accordance with one of the following provisions, which contribution shall be allocated to the Qualified Nonelective Contribution Account, Qualified Matching Contribution Account, or Matching Account of each Participant who is a Nonhighly Compensated Employee eligible to share in the allocation in accordance with such provision. If the prior year testing method is used, then neither a Qualified Nonelective Contribution nor Qualified Matching Contribution may be made to correct a failed ACP test. The Employer shall provide the Administrator with written notification of the amount of the contribution being made and for which provision it is being made pursuant to:

(1)A Qualified Nonelective Contribution may be made on behalf of Nonhighly Compensated Participants in an amount sufficient to satisfy one of the tests set forth in Section 4.7(a). Such contribution shall be allocated in the same proportion that each Nonhighly Compensated Employee’s 414(s) Compensation for the year bears to the total 414(s) Compensation of all Nonhighly Compensated Employees for such year.

(2)A Qualified Nonelective Contribution may be made on behalf of Nonhighly Compensated Employees in an amount sufficient to satisfy one of the tests set forth in Section 4.7(a). Such contribution shall be allocated in the same proportion that each Nonhighly Compensated Employee’s 414(s) Compensation for the year bears to the total 414(s) Compensation of all Nonhighly Compensated Employees for such year. However, for purposes of this contribution, Nonhighly Compensated Employees who are not employed at the end of the Plan Year shall not be eligible to share in the allocation and shall be disregarded.

(3)A Qualified Nonelective Contribution may be made on behalf of Nonhighly Compensated Employees in an amount sufficient to satisfy one of the tests set forth in Section 4.7(a). Such contribution shall be allocated in equal amounts (per capita).

(4)A Qualified Nonelective Contribution may be made on behalf of Nonhighly Compensated Employees in an amount sufficient to satisfy one of the tests set forth in

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Section 4.7(a). Such contribution shall be allocated in equal amounts (per capita). However, for purposes of this contribution, Nonhighly Compensated Employees who are not employed at the end of the Plan Year shall not be eligible to share in the allocation and shall be disregarded.

(5)A Qualified Nonelective Contribution may be made on behalf of Nonhighly Compensated Employees in an amount sufficient to satisfy one of the tests set forth in Section 4.7(a). Such contribution shall be allocated to the Qualified Nonelective Contribution Account of the Nonhighly Compensated Employee having the lowest 414(s) Compensation, until one of the tests set forth in Section 4.7(a) is satisfied, or until such Nonhighly Compensated Employee has received the maximum permissible amount pursuant to Section 4.9, or the maximum that may be taken into account in the ACP Test pursuant to Section 4.7(i) (Targeted Qualified Nonelective Contributions). This process shall continue until one of the tests set forth in Section 4.7(a) is satisfied.

(6)A Qualified Nonelective Contribution may be made on behalf of Nonhighly Compensated Employees in an amount sufficient to satisfy one of the tests set forth in Section 4.7(a). Such contribution shall be allocated to the Qualified Nonelective Contribution Account of the Nonhighly Compensated Employee having the lowest 414(s) Compensation, until one of the tests set forth in Section 4.7(a) is satisfied, or until such Nonhighly Compensated Employee has received the maximum permissible amount pursuant to Section 4.9, or the maximum that may be taken into account in the ACP Test pursuant to Section 4.7(i) (Targeted Qualified Nonelective Contributions). This process shall continue until one of the tests set forth in Section 4.7(a) is satisfied. However, for purposes of this contribution, Nonhighly Compensated Employees who are not employed at the end of the Plan Year shall not be eligible to share in the allocation and shall be disregarded.

(7)A Qualified Matching Contribution may be made on behalf of Nonhighly Compensated Employees in an amount sufficient to satisfy one of the tests set forth in Section 4.7(a). Such contribution shall be allocated to the Qualified Matching Contribution Account of each Nonhighly Compensated Employee in the same proportion that each Nonhighly Compensated Employee’s Elective Deferrals for the year bears to the total Elective Deferrals of all Nonhighly Compensated Employees.

(8)A Qualified Matching Contribution may be made on behalf of Nonhighly Compensated Employees in an amount sufficient to satisfy one of the tests set forth in Section 4.7(a). Such contribution shall be allocated to the Qualified Matching Contribution Account of each Nonhighly Compensated Employee in the same proportion that each Nonhighly Compensated Employee’s Elective Deferrals for the year bears to the total Elective Deferrals of all Nonhighly Compensated Employees. However, for purposes of this contribution, Nonhighly Compensated Employees who are not employed at the end of the Plan Year shall not be eligible to share in the allocation and shall be disregarded.

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(9)A Qualified Matching Contribution may be made on behalf of Nonhighly Compensated Employees in an amount sufficient to satisfy one of the tests set forth in Section 4.7(a). Such contribution shall be allocated to the Qualified Matching Contribution Account of the Nonhighly Compensated Employee having the lowest Elective Deferrals until one of the tests set forth in Section 4.7(a) is satisfied, or until such Nonhighly Compensated Employee has received the maximum permissible amount pursuant to Section 4.9, subject to the restriction on Targeted Matching Contributions imposed by the provisions of Section 4.7(h). This process shall continue until one of the tests set forth in Section 4.7(a) is satisfied.

(10)A Qualified Matching Contribution may be made on behalf of Nonhighly Compensated Employees in an amount sufficient to satisfy one of the tests set forth in Section 4.7(a). Such contribution shall be allocated to the Qualified Matching Contribution Account of the Nonhighly Compensated Employee having the lowest Elective Deferrals until one of the tests set forth in Section 4.7(a) is satisfied, or until such Nonhighly Compensated Employee has received the maximum permissible amount pursuant to Section 4.9, subject to the restriction on Targeted Matching Contributions imposed by the provisions of Section 4.7(h). This process shall continue until one of the tests set forth in Section 4.7(a) is satisfied. However, for purposes of this contribution, Nonhighly Compensated Employees who are not employed at the end of the Plan Year shall not be eligible to share in the allocation and shall be disregarded.

(h)Excise tax. Any Excess Aggregate Contributions (and Income) which are distributed on or after 2 1/2 months after the end of the Plan Year shall be subject to the ten percent (10%) Employer excise tax imposed by Code Section 4979.

4.9MAXIMUM ANNUAL ADDITIONS

(a)Maximum permissible amount. Notwithstanding the foregoing, the maximum Annual Additions credited to a Participant’s Accounts for any Limitation Year shall equal the lesser of:

(1)$40,000 adjusted annually as provided in Code Section 415(d) pursuant to the Regulations, or

(2)one-hundred percent (100%) of the Participant’s 415 Compensation for such Limitation Year.

The percentage limitation in paragraph (2) above shall not apply to: (1) any contribution for medical benefits (within the meaning of Code Section 419A(f)(2)) after separation from service which is otherwise treated as an annual addition, or (2) any amount otherwise treated as an annual addition under Code Section 415(l)(1).

For any short Limitation Year, the dollar limitation in paragraph (1) above shall be reduced by a fraction, the numerator of which is the number of full months in the short Limitation Year and the denominator of which is twelve (12).

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(b)Reasonable estimate permissible. Prior to determining the Participant’s actual 415 Compensation for the Limitation Year, the Employer may determine the maximum permissible amount for a Participant on the basis of a reasonable estimation of the Participant’s 415 Compensation for the Limitation Year, uniformly determined for all Participants similarly situated. As soon as is administratively feasible after the end of the Limitation Year, the maximum permissible amount for the Limitation Year will be determined on the basis of the Participant’s actual 415 Compensation for the Limitation Year.

(c)Excess Annual Additions defined. For purposes of this Article, the term “Excess Annual Additions” for any Participant for a Limitation Year means a Participant’s Annual Additions under this Plan and such other plans of the Employer or Affiliated Employer that are in excess of the maximum permissible amount of Section 4.9 for a Limitation Year. The Excess Annual Additions will be deemed to consist of the Annual Additions last allocated, except that Annual Additions attributable to a simplified employee pension will be deemed to have been allocated first, followed by Annual Additions to a welfare benefit fund or individual medical account, and then by Annual Additions to a plan subject to Code Section 412, regardless of the actual allocation date.

(d) Annual Additions can cease when maximum permissible amount reached. If the Employer contribution that would otherwise be contributed or allocated to the Participant’s Accounts would cause the Annual Additions for the Limitation Year to exceed the maximum permissible amount, then the amount that would otherwise be contributed or allocated will be reduced so that the Annual Additions for the Limitation Year will equal the maximum permissible amount, and any such amounts which would have been allocated to such Participant may be allocated to other Participants.

(e)All DC plans treated as one plan. For the purpose of this Section, all qualified defined contribution plans (regardless of whether such plan has terminated) maintained by the Employer during a Limitation Year shall be treated as one defined contribution plan.

(f)All Employees of Related Employers treated as employed by one Employer. For the purpose of this Section, if the Employer is a member of a controlled group of corporations, trades or businesses under common control (as defined by Code Section 1563(a) or Code Section 414(b) and (c) as modified by Code Section 415(h)), is a member of an affiliated service group (as defined by Code Section 414(m)), or is a member of a group of entities required to be aggregated pursuant to Regulations under Code Section 414(o), then all Employees of such Employers shall be considered to be employed by a single Employer.

(g)413(c) Plan. If this is a plan described in Code Section 413(c) (other than a plan described in Code Section 414(f)), then all of the benefits or contributions attributable to a Participant from all of the Employers maintaining this Plan shall be taken into account in applying the limits of this Section with respect to such Participant. Furthermore, in applying the limitations of this Section with respect to such a Participant, the total 415 Compensation received by the Participant from all of the Employers maintaining the Plan shall be taken into account.

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(h)(1) DC Plans with same/different Anniversary Dates. If a Participant participates in more than one defined contribution plan maintained by the Employer that have different Anniversary Dates, then the maximum permissible amount under this Plan shall equal the maximum permissible amount for the Limitation Year minus any Annual Additions previously credited to such Participant’s Accounts during the Limitation Year.

(2)If a Participant participates in both a defined contribution plan subject to Code Section 412 and a defined contribution plan not subject to Code Section 412 maintained by the Employer which have the same Anniversary Date, then Annual Additions will be credited to the Participant’s Accounts under the defined contribution plan subject to Code Section 412 prior to crediting Annual Additions to the Participant’s Accounts under the defined contribution plan not subject to Code Section 412.

(3)If a Participant participates in more than one defined contribution plan not subject to Code Section 412 maintained by the Employer which have the same Anniversary Date, then the maximum permissible amount under this Plan shall equal the product of (A) the maximum permissible amount for the Limitation Year minus any Annual Additions previously credited under subparagraphs (1) or (2) above, multiplied by (B) a fraction (i) the numerator of which is the Annual Additions which would be credited to such Participant’s Accounts under this Plan without regard to the limitations of Code Section 415 and (ii) the denominator of which is such Annual Additions for all plans described in this subparagraph.

4.10ADJUSTMENT FOR EXCESS ANNUAL ADDITIONS

(a)Disposal of Excess Annual Additions. Allocation of Annual Additions to a Participant’s Account for a Limitation Year generally will cease in accordance with Section 4.9(d) once the maximum permissible amount of Section 4.9 has been reached for such Limitation Year. However, if, as a result of a reasonable error in estimating a Participant’s Compensation, a reasonable error in determining the amount of Elective Deferrals (within the meaning of Code Section 402(g)(3)) that may be made with respect to any Participant with respect to the maximum permissible amount of Section 4.9 or other facts and circumstances to which Regulation 1.415-6(b)(6) shall be applicable, the Annual Additions under this Plan would cause Excess Annual Additions for any Participant, then the Excess Annual Additions will be disposed of in one of the following ways, as uniformly determined by the Administrator for all Participants similarly situated.

(1)If the Participant is covered by the Plan at the end of the Limitation Year, then the Excess Annual Additions will be used to reduce the Employer contribution for such Participant in the next Limitation Year, and each succeeding Limitation Year if necessary;

(2)If the Participant is not covered by the Plan at the end of the Limitation Year, then the Excess Annual Additions will be held unallocated in a “Section 415 suspense account” The “Section 415 suspense account’ will be applied to

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reduce future Employer contributions for all remaining Participants in the next Limitation Year, and each succeeding Limitation Year if necessary;

(3)If a “Section 415 suspense account” is in existence at any time during the Limitation Year pursuant to this Section, then the “Section 415 suspense account” will not participate in the allocation of investment gains and losses of the Trust Fund. If a “Section 415 suspense account” is in existence at any time during a particular Limitation Year, then all amounts in the “Section 415 suspense account” must be allocated and reallocated to Participants’ Accounts before any Employer contributions or any Employee contributions may be made to the Plan for that Limitation Year. Except as provided above, Excess Annual Additions may not be distributed to Participants.

(b)Section 415 suspense account defined. For purposes of this Section, the term “Section 415 suspense account” means an unallocated account equal to the sum of Excess Annual Additions for all Participants in the Plan during the Limitation Year.

4.11PLAN-TO-PLAN TRANSFERS (OTHER THAN ROLLOVERS) FROM QUALIFIED PLANS

(a)Transfers into this Plan. With the consent of the Administrator (such consent must be exercised in a nondiscriminatory manner and applied uniformly to all Participants), amounts may be transferred (within the meaning of Code Section 414(l)) to this Plan from other tax qualified plans under Code Section 401(a), provided that the plan from which such funds are transferred permits the transfer to be made, the funds are not subject to the notice and consent requirements of Code Section 417 (i.e., qualified joint and survivor annuity requirements), and the transfer will not jeopardize the tax exempt status of the Plan or Trust or create adverse tax consequences for the Employer. Prior to accepting any transfers to which this Section applies, the Administrator may require satisfactory evidence that the amounts to be transferred meet the requirements of this Section. The transferred amounts shall be allocated to the Transfer Account of the Participant.

At the time of the transfer, the nonforfeitable percentage of the funds under the transferor plan shall apply, but thereafter shall increase (if applicable) for each Period of Service that the Participant completes after such transfer in accordance with the Vesting provisions of this Plan applicable to the type of Account represented by the transferred funds (e.g., transferred nonelective funds will be subject to the vesting schedule applicable to Nonelective Contributions under this Plan). If the vesting schedule applicable to a Transferred Account changes as a result of this paragraph, such change will be treated as an amendment to the vesting schedule for each affected Participant.

(b)Accounting of transfers. The Transfer Account of a Participant shall be held by the Trustee pursuant to the provisions of this Plan and may not be withdrawn by, or distributed to the Participant, in whole or in part, except as provided in paragraph (d) of this Section. The Trustee shall have no duty or responsibility to inquire as to the propriety of the amount, value or type of assets transferred, nor to conduct any due diligence with respect to such assets;

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provided, however, that such assets are otherwise eligible to be held by the Trustee under the terms of this Plan.

(c)Restrictions on elective deferrals. Except as permitted by Regulations (including Regulation Section 1.411(d)-4), amounts attributable to elective deferrals (as defined in Regulation Section 1.401(k)-6), including amounts treated as elective deferrals, which are transferred from another qualified plan in a plan-to-plan transfer (other than a direct rollover) shall be subject to the distribution limitations provided for in Code Section 401(k)(2) and the Regulations.

(d)Distribution of Transfer Account. At Normal Retirement Date, or such other date when the Participant or the Participant’s Beneficiary shall be entitled to receive benefits, the Transfer Account of a Participant shall be used to provide additional benefits to the Participant or the Participant’s Beneficiary. Any distributions of amounts held in the Transfer Account shall be made in a manner which is consistent with and satisfies the provisions of Sections 6.5 and 6.6, including, but not limited to, all notice and consent requirements of Code Section 411(a)(11) and the Regulations thereunder. Furthermore, the Transfer Account shall be considered as part of a Participant’s benefit in determining whether an involuntary cash-out of benefits may be made without Participant consent.

(e)Segregation. The Administrator may direct that Employee transfers made after a Valuation Date be segregated into a separate account for each Participant until such time as the allocations pursuant to this Plan have been made, at which time they may remain segregated or be invested as part of the general Trust Fund or be directed by the Participant pursuant to Section 4.13.

(f)Protected benefits. Notwithstanding anything herein to the contrary, a transfer directly to this Plan from another qualified plan (or a transaction having the effect of such a transfer) shall only be permitted if it will not result in the elimination or reduction of any “Section 411(d)(6) protected benefit” as described in Section 7.1(e).

(g)Separate Accounts. With respect to each Participant’s Transfer Account, separate sub-accounts shall be maintained to the extent necessary to carry out the provisions of this Plan.

4.12ROLLOVERS FROM OTHER PLANS

(a)Acceptance of rollovers into the Plan. With the consent of the Administrator (such consent must be exercised in a nondiscriminatory manner and applied uniformly to all Participants), the Plan may accept a rollover by Participants, excluding Participants who are no longer employed as an Employee and including Eligible Employees, provided the rollover will not jeopardize the tax-exempt status of the Plan or create adverse tax consequences for the Employer. The rollover amounts shall be allocated to the Rollover Account of the Participant. Furthermore, for a rollover from an eligible retirement plan into this Plan made on or after January 1, 2006, any Roth Elective Deferrals that are accepted as rollovers in this Plan shall be accounted for separately, and must be directly rolled over from a Roth elective deferral account under an applicable retirement plan described in Code Section 402A(e)(1) and only to

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the extent that the rollover is permitted under the rules of Code Section 402(c). The Rollover Account of a Participant shall be 100% Vested at all times and shall not be subject to Forfeiture for any reason.

(b)Treatment of Rollover Account in the Plan. The Rollover Account shall be held by the Trustee pursuant to the provisions of this Plan and may not be withdrawn by, or distributed to the Participant, in whole or in part, except as provided in paragraph (c) of this Section. The Trustee shall have no duty or responsibility to inquire as to the propriety of the amount, value or type of assets transferred, nor to conduct any due diligence with respect to such assets; provided, however, that such assets are otherwise eligible to be held by the Trustee under the terms of this Plan.

(c)Distribution of rollovers. The Administrator, at the election of the Participant, shall direct the Trustee to distribute all or a portion of the amount credited to the Participant’s Rollover Account at any time. Furthermore, amounts in the Participant’s Rollover Account shall not be considered as part of a Participant’s benefit in determining whether the $5,000 threshold has been exceeded for purposes of the timing or form of payments under the Plan as well as for the Participant consent requirements. Any distributions of amounts that are held in the Rollover Account shall be made in a manner which is consistent with and satisfies the provisions of Sections 6.5 and 6.6, including, but not limited to, all notice and consent requirements of Code Section 411(a)(11) and the Regulations thereunder.

(d)Limits on accepting rollovers. Prior to accepting any rollovers to which this Section applies, the Administrator may require the Employee to provide evidence that the amounts to be rolled over to this Plan meet the requirements of this Section. The Employer may instruct the Administrator, operationally and on a nondiscriminatory basis, to limit the source of rollovers that may be accepted by the Plan.

(e)Rollovers maintained in a separate account. The Administrator may direct that rollovers received after a Valuation Date be segregated into a separate account for each Participant until such time as the allocations pursuant to this Plan have been made, at which time they may remain segregated or be invested as part of the general Trust Fund or be directed by the Participant pursuant to Section 4.14.

Definitions. For purposes of this Section, the following definitions shall apply:

(1)The term “rollover” means: (i) amounts transferred to this Plan directly from another “eligible retirement plan;” (ii) distributions received by an Employee from other “eligible retirement plans” which are eligible for tax-free rollover to an “eligible retirement plan” and which are transferred by the Employee to this Plan within sixty (60) days following receipt thereof; and (iii) any other amounts which are eligible to be rolled over to this Plan pursuant to the Code.

(2)The term “eligible retirement plan” means an individual retirement account described in Code Section 408(a), an individual retirement annuity described in Code Section 408(b) (other than an endowment contract), a qualified trust (an employees’ trust described in Code Section 401(a) which is exempt from

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tax under Code Section 501(a)), an annuity plan described in Code Section 403(a), an eligible deferred compensation plan described in Code Section 457(b) which is maintained by an eligible employer described in Code Section 457(e)(1)(A), and an annuity contract described in Code Section 403(b).

4.13AFTER-TAX VOLUNTARY CONTRIBUTIONS

(a)After-Tax Voluntary Contributions previously allowed. Any After-Tax Voluntary Contributions shall be maintained in each Participant’s Voluntary Contribution Account.

(b)100% Vesting. The balance in each Participant’s After-Tax Voluntary Contribution Account shall be 100% Vested at all times and shall not be subject to Forfeiture for any reason.

(c)Distribution at any time. A Participant may elect to receive a distribution at any time of After-Tax Voluntary Contributions from such Participant’s After-Tax Voluntary Contribution Account and the actual earnings thereon in a manner which is consistent with and satisfies the provisions of Section 6.5, including, but not limited to, all notice and consent requirements of Code Section 411(a)(11) and the Regulations thereunder. If the Administrator maintains sub-accounts with respect to After-Tax Voluntary Contributions (and earnings thereon) that were made on or before a specified date, then a Participant shall be permitted to designate which sub-account shall be the source for withdrawal. Forfeitures of any Employer contributions shall not occur solely as a result of an Employee’s withdrawal of After-Tax Voluntary Contributions.

(d)After-Tax Voluntary Contribution Account used for additional benefits. At Normal Retirement Date, or such other date when the Participant or the Participant’s Beneficiary is entitled to receive benefits, the Participant’s After-Tax Voluntary Contribution Account shall be used to provide additional benefits to the Participant or the Participant’s Beneficiary.

4.14PARTICIPANT DIRECTED INVESTMENTS

(a)Directed Investments allowed. Participants may, subject to a procedure established by the Administrator (the Participant Direction Procedures) and applied in a uniform nondiscriminatory manner, direct the Trustee, in writing (or in such other form which is acceptable to the Trustee), to invest their entire Accounts in specific assets, specific funds or other investments permitted under the Plan and the Participant Direction Procedures. That portion of the interest of any Participant so directing will thereupon be considered a Participant’s Directed Account.

(b)Establishment of Participant Direction Procedures. The Administrator will establish Participant Direction Procedures, to be applied in a uniform and nondiscriminatory manner, setting forth the permissible investment options under this Section, how often changes between investments may be made, and any other limitations and provisions that the Administrator may impose on a Participant’s right to direct investments.

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(c)Administrative discretion. The Administrator may, in its discretion, include or exclude by amendment or other action from the Participant Direction Procedures such instructions, guidelines or policies as it deems necessary or appropriate to ensure proper administration of the Plan, and may interpret the same accordingly.

(d)Allocation of earnings. As of each Valuation Date, all Participant Directed Accounts shall be charged or credited with the net earnings, gains, losses and expenses as well as any appreciation or depreciation in the market value using publicly listed fair market values when available or appropriate as follows:

(1)to the extent that the assets in a Participant’s Directed Account are accounted for as pooled assets or investments, the allocation of earnings, gains and losses of each Participant’s Directed Account shall be based upon the total amount of funds so invested in a manner proportionate to the Participant’s share of such pooled investment; and

(2)to the extent that the assets in the Participant’s Directed Account are accounted for as segregated assets, the allocation of earnings, gains and losses from such assets shall be made on a separate and distinct basis.

(e)Plan will follow investment directions. Investment directions will be processed as soon as administratively practicable after proper investment directions are received from the Participant. No guarantee is made by the Plan, Employer, Administrator or Trustee that investment directions will be processed on a daily basis, and no guarantee is made in any respect regarding the processing time of an investment direction. Notwithstanding any other provision of the Plan, the Employer, Administrator or Trustee reserves the right to not value an investment option on any given Valuation Date for any reason deemed appropriate by the Employer, Administrator or Trustee. Furthermore, the processing of any investment transaction may be delayed for any legitimate business reason or force majeure (including, but not limited to, failure of systems or computer programs, failure of the means of the transmission of data, the failure of a service provider to timely receive values or prices, and correction for errors or omissions or the errors or omissions of any service provider). The processing date of a transaction will be binding for all purposes of the Plan and considered the applicable Valuation Date for an investment transaction.

(f)Section 404(c) provisions. The Participant Direction Procedures shall provide an explanation of the circumstances under which Participants and their Beneficiaries may give investment instructions, including, but not limited to, the following to the extent required under the Department of Labor regulations or guidance:

(1)the conveyance of instructions by the Participants and their Beneficiaries to invest Participant Directed Accounts in Directed Investment Options;

(2)the name, address and phone number of the Fiduciary (and, if applicable, the person or persons designated by the Fiduciary to act on its behalf) responsible for providing information to the Participant or a Beneficiary upon request relating to the Directed Investment Options;

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(3)applicable restrictions on transfers to and from any Designated Investment Alternative;

(4)any restrictions on the exercise of voting, tender and similar rights related to a Directed Investment Option by the Participants or their Beneficiaries;

(5)a description of any transaction fees and expenses which affect the balances in Participant Directed Accounts in connection with the purchase or sale of Directed Investment Options; and

(6)general procedures for the dissemination of investment and other information relating to the Designated Investment Alternatives as deemed necessary or appropriate, including but not limited to a description of the following:

(i)the investment vehicles available under the Plan, including specific information regarding any Designated Investment Alternative;

(ii)any designated Investment Managers; and

(iii)a description of the additional information which may be obtained upon request from the Fiduciary designated to provide such information.

(g)Other documents. Any information regarding investments available under the Plan, to the extent not required to be described in the Participant Direction Procedures, may be provided to the Participant in one or more written documents (or in any other form including, but not limited to, electronic media) which are separate from the Participant Direction Procedures and are not thereby incorporated by reference into this Plan.

(h)Instructions, guidelines or policies. The Administrator may, in its discretion, include or exclude by amendment or other action from the Participant Direction Procedures such instructions, guidelines or policies as it deems necessary or appropriate to ensure proper administration of the Plan, and may interpret the same accordingly.

4.15QUALIFIED MILITARY SERVICE

Notwithstanding any provision of this Plan to the contrary, contributions, benefits and service will be provided in accordance with Code Section 414(u). Furthermore, loan repayments may be suspended under this Plan as permitted under Code Section 414(u)(4).

ARTICLE V
VALUATIONS

5.1VALUATION OF THE TRUST FUND

The Administrator shall direct the Trustee, as of each Valuation Date, to determine the net worth of the assets comprising the Trust Fund as it exists on the Valuation Date. In determining such net worth, the Trustee shall value the assets comprising the Trust Fund at their fair market value as of

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the Valuation Date and shall deduct all expenses for which the Trustee has not yet obtained reimbursement from the Employer or the Trust Fund. The Trustee may update the value of any shares held in the Participant Directed Account by reference to the number of shares held by that Participant, priced at the market value as of the Valuation Date.

5.2METHOD OF VALUATION

In determining the fair market value of securities held in the Trust Fund which are listed on a registered stock exchange, the Administrator shall direct the Trustee to value the same at the prices they were last traded on such exchange preceding the close of business on the Valuation Date. If such securities were not traded on the Valuation Date, or if the exchange on which they are traded was not open for business on the Valuation Date, then the securities shall be valued at the prices at which they were last traded prior to the Valuation Date. Any unlisted security held in the Trust Fund shall be valued at its bid price next preceding the close of business on the Valuation Date, which bid price shall be obtained from a registered broker or an investment banker. In determining the fair market value of assets other than securities for which trading or bid prices can be obtained, the Trustee may appraise such assets itself, or in its discretion, employ one or more appraisers for that purpose and rely on the values established by such appraiser or appraisers.

ARTICLE VI
DETERMINATION AND DISTRIBUTION OF BENEFITS

6.1DETERMINATION OF BENEFITS UPON RETIREMENT

Every Participant may terminate employment with the Employer and retire for the purposes hereof on the Participant’s Normal Retirement Date or Early Retirement Date. However, a Participant may postpone the termination of employment with the Employer to a later date, in which event the participation of such Participant in the Plan, including the right to receive allocations pursuant to Section 4.4, shall continue until such Participant’s Late Retirement Date. Upon a Participant’s Retirement Date, or as soon thereafter as is practicable, the Administrator shall direct the distribution, at the election of the Participant, of the Participant’s entire Vested interest in the Plan (or any portion thereof), in accordance with Section 6.5.

6.2DETERMINATION OF BENEFITS UPON DEATH

(a) 100% Vesting on death. Upon the death of a Participant before the Participant’s Retirement Date or other termination of employment, all amounts credited to such Participant’s Account shall become fully Vested.

(b) Distribution upon death. Upon the death of a Participant, the Administrator shall direct, in accordance with the provisions of Sections 6.6 and 6.7, the distribution of any remaining amounts credited to the accounts of the deceased Participant to such Participant’s Beneficiary.

(c) Security for loans. Any security interest held by the Plan by reason of an outstanding loan to the Participant shall be taken into account in determining the amount of the death benefit.

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(d) Determination of death benefit by Administrator. The Administrator may require such proper proof of death and such evidence of the right of any person to receive payment of the value of the account of a deceased Participant as the Administrator may deem desirable. The Administrator’s determination of death and of the right of any person to receive payment shall be conclusive.

(e) Beneficiary designation. The Beneficiary of the death benefit payable pursuant to this Section shall be the Participant’s surviving spouse. Except, however, the Participant may designate a Beneficiary other than the spouse if:

(1)the spouse has waived the right to be the Participant’s Beneficiary, or

(2)the Participant is legally separated or has been abandoned (within the meaning of local law) and the Participant has a court order to such effect (and there is no qualified domestic relations order as defined in Code Section 414(p) which provides otherwise), or

(3)the Participant has no spouse, or

(4)the spouse cannot be located.

In such event, the designation of a Beneficiary shall be made on a form satisfactory to the Administrator. A Participant may at any time revoke a designation of a Beneficiary or change a Beneficiary by filing written notice (or in such other form as permitted by the Internal Revenue Service) of such revocation or change with the Administrator. However, the Participant’s spouse must again consent in writing (or in such other form as permitted by the Internal Revenue Service) to any change in Beneficiary unless the original consent acknowledged that the spouse had the right to limit consent only to a specific Beneficiary and that the spouse voluntarily elected to relinquish such right.

(f)Beneficiary if no beneficiary elected by Participant. In the event no valid designation of Beneficiary exists with respect to all or a portion of the death benefit, or if the Beneficiary of such death benefit is not alive at the time of the Participant’s death and no contingent Beneficiary has been designated, then such death benefit will be paid in the following order of priority to:

(1)the Participant’s surviving spouse;

(2)the Participant’s children, including adopted children, per stirpes;

(3)the Participant’s surviving parents, in equal shares; or

(4)the Participant’s estate.

If the Beneficiary does not predecease the Participant, but dies prior to distribution of the death benefit, the death benefit will be paid to the Beneficiary’s designated Beneficiary (or there is no designated Beneficiary, to the Beneficiary’s estate).

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(g)Divorce revokes spousal beneficiary designation. Notwithstanding anything in this Section to the contrary, if a Participant has designated the spouse as a Beneficiary, then a divorce decree or a legal separation that relates to such spouse shall revoke the Participant’s designation of the spouse as a Beneficiary unless the decree or a qualified domestic relations order (within the meaning of Code Section 414(p)) provides otherwise or a subsequent beneficiary designation is made.

(h)Spousal consent. Any consent by the Participants spouse to waive any rights to the death benefit must be in writing (or in such other form as permitted by the Internal Revenue Service), must acknowledge the effect of such waiver, and be witnessed by a Plan representative or a notary public. Further, the spouse’s consent must be irrevocable and must acknowledge the specific nonspouse Beneficiary.

6.3DISABILITY RETIREMENT BENEFITS

In the event of a Participant’s Disability prior to the Participant’s Retirement Date or other termination of employment, all amounts credited to such Participant’s Account shall become fully Vested. In the event of a Participant’s Disability, the Administrator, in accordance with the provisions of Sections 6.5 and 6.7, shall direct the distribution to such Participant of all Vested amounts credited to such Participant’s Account.

6.4DETERMINATION OF BENEFITS UPON TERMINATION

(a)Payment on termination of employment. If a Participant’s employment with the Employer is terminated for any reason other than death, Disability or retirement, then such Participant shall be entitled to such benefits as are provided hereinafter pursuant to this Section 6.4.

Distribution of the funds due to a Terminated Participant shall be made on the occurrence of an event which would result in a distributable event had the Terminated Participant remained in the employ of the Employer (upon the Participant’s death, Disability, Early or Normal Retirement). However, at the election of the Participant, the Administrator shall direct the distribution of the entire Vested portion of the Terminated Participant’s Account be payable to such Terminated Participant as soon as administratively feasible after termination of employment. Any distribution under this paragraph shall be made in a manner which is consistent with and satisfies the provisions of Section 6.5, including, but not limited to, all notice and consent requirements of Code Section 411(a)(11) and the Regulations thereunder.

For purposes of this Section 6.4, if the value of a Terminated Participant’s Vested benefit is zero, the Terminated Participant shall be deemed to have received a distribution of such Vested benefit.

(b)Vesting schedule. The Vested portion of the Account of any Participant attributable to Employer contributions shall be a percentage of the total amount credited to the Participant’s Accounts determined on the basis of the Participant’s number of whole year Periods of Service according to the following schedule(s):

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(1)A Participant shall be fully Vested in Elective Deferrals Accounts and Rollover Accounts immediately upon entry into the Plan. In addition, Employer Matching Contribution Accounts attributable to the Advance Brands 401(k) Retirement Savings Plan and safe harbor matching contributions accounts attributable to the Advance Food Company, Inc. 401(k) Salary Reduction Plan & Trust shall be fully vested. Both Employer Matching Contribution Accounts and Nonelective Contribution Accounts attributable to this Plan for contributions made prior to January 1, 2010 shall be fully vested.

The Account of any Participant attributable to the Barber Foods Retirement Savings Plan shall be fully vested once the Participant meets the Early Retirement Date pursuant to this paragraph. For purposes of the paragraph, the “Early Retirement Date” means the first day of the month (prior to the Normal Retirement Date) coinciding with or next following the date on which a Participant attains age 55, and has completed at least 7 Periods of Service for vesting with the Employer (“early retirement age”). A Participant shall become fully Vested only in the plan accounts that were merged from the Barber Foods Retirement Savings Plan upon satisfying this requirement if still employed at “early retirement age.”

(2)The Vested portion of the ADP Safe Harbor Contribution (intended as a QACA matching contribution), as well as Nonelective Contribution Accounts attributable to this Plan for contributions made after December 31, 2009, shall be determined in accordance with the following vesting schedule:

Vesting Schedule
Periods of Service	Percentage
Less than 1	0	%
1	50	%
2	100	%

(3) The Vested portion of the Matching Contribution Accounts attributable to the Barber Foods Retirement Savings Plan shall be determined in accordance with the following vesting schedule:

Vesting Schedule
Periods of Service	Percentage
Less than 1	0	%
1	20	%
2	40	%
3	60	%
4	80	%
5	100	%

(4) The Vested portion of the Nonelective Contribution Account attributable to the Advance Brands 401(k) Retirement Savings Plan shall be determined in accordance with the following vesting schedule:

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Vesting Schedule
Periods of Service	Percentage
Less than 1	0	%
1	0	%
2	0	%
3	100	%

(c)No reduction in Vested percentage due to change in vesting schedule. Notwithstanding the vesting schedule above, the Vested percentage of a Participant’s Account shall not be less than the Vested percentage attained as of the later of the effective date or adoption date of this amendment and restatement.

(d)Time of application of vesting schedule liberalization. In the absence of any provision to the contrary, any direct or indirect increase to a Participant’s Vested percentage (at any point on a vesting schedule) will not apply to a Participant unless and until such Participant completes an Hour of Service after the effective date of such amendment.

(e)100% Vesting on partial or full Plan termination. Notwithstanding the vesting schedule above, upon the complete discontinuance of the Employer contributions to the Plan or upon any full or partial termination of the Plan, all amounts then credited to the account of any affected Participant shall become 100% Vested and shall not thereafter be subject to Forfeiture.

(f)Continuation of old schedule upon subsequent amendment if 3 years of service. The computation of a Participant’s nonforfeitable percentage of such Participant’s interest in the Plan shall not be reduced as the result of any direct or indirect amendment to this Plan. In the event that the Plan is amended to change or modify any vesting schedule, or if the Plan is amended in any way that directly or indirectly affects the computation of the Participant’s nonforfeitable percentage, or if the Plan is deemed amended by an automatic change to or from a top-heavy vesting schedule, then each Participant with an Hour of Service after such change and who has at least three (3) whole year Periods of Service as of the expiration date of the election period may elect to have such Participant’s nonforfeitable percentage computed under the Plan without regard to such amendment or change. If such a Participant fails to make such election, then such Participant shall be subject to the new vesting schedule. The Participant’s election period shall commence on the date the amendment is adopted or deemed to be made and shall end sixty (60) days after the latest of:

(1)the adoption date of the amendment,

(2)the effective date of the amendment, or

(3)the date the Participant receives written notice of the amendment from the Employer or Administrator.

6.5DISTRIBUTION OF BENEFITS

(a)The Administrator, pursuant to the election of the Participant, shall direct the Trustee to distribute to a Participant or such Participant’s Beneficiary the amount (if any)

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to which the Participant (or Beneficiary) has become entitled under the Plan in one lump-sum payment in cash.

(b)Any distribution to a Participant who has a Total Vested Benefit which exceeds $5,000 shall require such Participant’s written consent (or in such other form as permitted by the Internal Revenue Service) if such distribution occurs during the time the benefit is “immediately distributable.” A benefit is “immediately distributable” if any part of the benefit could be distributed to the Participant (or surviving spouse) before the Participant attains (or would have attained if not deceased) the later of the Participant’s Normal Retirement Age or age 62.

Any such distribution may be made less than thirty (30) days after the notice required under Regulation 1.411(a)-11(c) is given, provided that: (1) the Administrator clearly informs the Participant that the Participant has a right to a period of at least thirty (30) days after receiving the notice to consider the decision of whether or not to elect a distribution (and, if applicable, a particular distribution option), and (2) the Participant, after receiving the notice, affirmatively elects a distribution.

(c)If a mandatory distribution greater than $1,000 is made in accordance with the provisions of the Plan providing for an automatic distribution to a Participant without the Participant’s consent, and the Participant does not elect to have such distribution paid directly to an eligible retirement plan specified by the Participant in a direct rollover (in accordance with the direct rollover provisions of the Plan) or to receive the distribution directly, then the Administrator shall direct that the distribution be made in a direct rollover to an Individual Retirement Account described in Code Section 408(a) or an Individual Retirement Annuity described in Code Section 408(b), as designated by the Administrator. The Administrator may operationally implement this provision with respect to distributions that are $1,000 or less.

(d)All annuity Contracts under this Plan shall be non-transferable when distributed. Furthermore, the terms of any annuity Contract purchased and distributed to a Participant or spouse shall comply with all of the requirements of the Plan.

(e)If a distribution is made to a Participant who has not severed employment and who is not fully Vested in the Participant’s Account and the Participant may increase the Vested percentage in such account, then, at any relevant time the Participant’s Vested portion of the account will be equal to an amount (“X”) determined by the formula:

X equals P(AB plus D) - D

For purposes of applying the formula: P is the Vested percentage at the relevant time, AB is the account balance at the relevant time, and D is the amount of distribution, and the relevant time is the time at which, under the Plan, the Vested percentage in the account cannot increase.

(f)Required minimum distributions (Code Section 401(a)(9)). Notwithstanding any provision in the Plan to the contrary, the distribution of a Participant’s benefits shall be made in accordance with the requirements of Section 6.8.

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6.6DISTRIBUTION OF BENEFITS UPON DEATH

(a)The death benefit payable pursuant to Section 6.2 shall be paid to the Participant’s Beneficiary in one lump-sum payment in cash subject to the rules of Section 6.8.

(b)Notwithstanding any provision in the Plan to the contrary, distributions upon the death of a Participant shall comply with the requirements of Section 6.8.

(c)In the event that less than 100% of a Participant’s interest in the Plan is distributed to such Participants spouse, the portion of the distribution attributable to the Participants Voluntary Contribution Account shall be in the same proportion that the Participants Voluntary Contribution Account bears to the Participant’s total interest in the Plan.

6.7TIME OF DISTRIBUTION

Except as limited by Section 6.8, whenever a distribution is to be made, or a series of payments are to commence, the distribution or series of payments may be made or begun as soon as practicable. However, unless a Participant elects in writing to defer the receipt of benefits (such election may not result in a death benefit that is more than incidental), the payment of benefits shall begin not later than the sixtieth (60th) day after the close of the Plan Year in which the latest of the following events occurs: (a) the date on which the Participant attains the earlier of age 65 or the Normal Retirement Age specified herein; (b) the tenth (10th) anniversary of the year in which the Participant commenced participation in the Plan; or (c) the date the Participant terminates service with the Employer.

Notwithstanding the foregoing, the failure of a Participant and, if applicable, the Participant’s spouse, to consent to a distribution that is immediately distributable (within the meaning of Section 6.5), shall be deemed to be an election to defer the commencement of payment of any benefit sufficient to satisfy this Section.

6.8REQUIRED MINIMUM DISTRIBUTIONS

(a)General Rules

(1)Precedence. The requirements of this Section shall apply to any distribution of a Participant’s interest in the Plan and take precedence over any inconsistent provisions of the Plan.

(2)Requirements of Treasury Regulations Incorporated. All distributions required under this Section will be determined and made in accordance with the Regulations under Code Section 401(a)(9) and the minimum distribution incidental benefit requirement of Code Section 401(a)(9)(G).

(b)Time and manner of distribution

(1)Required beginning date. The Participant’s entire interest will be distributed, or begin to be distributed, to the Participant no later than the Participant’s required beginning date.

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(2)Death of Participant before distributions begin. If the Participant dies before distributions begin, the Participant’s entire death benefit will be distributed, or begin to be distributed, as follows:

(i)Distributions of the required minimum distributions will begin by December 31 of the calendar year immediately following the calendar year in which the Participant died, or, if the Participant’s surviving spouse is the Participant’s designated beneficiary, by December 31 of the calendar year in which the Participant would have attained age 70 1/2, if later.

(ii)If there is no beneficiary as of September 30 of the year following the year of the Participant’s death, the distribution of the Participant’s death benefit will be completed by December 31 of the calendar year containing the fifth anniversary of the Participant’s death.

(iii)If the Participant’s surviving spouse is the Participant’s sole designated beneficiary and the surviving spouse dies after the Participant but before distributions to the surviving spouse begin, this Section 6.8(b), other than this paragraph, will apply as if the surviving spouse were the Participant. Thus, in all such cases, the time at which distributions must commence (or be completed by) shall be determined solely by reference to the year that the Participant died, and not the year in which the Participant would have attained age 70 1/2.

For purposes of this Section 6.8(b), unless a surviving spouse is electing to commence benefits based upon the date that the Participant would have attained age 70 1/2, distributions are considered to begin on the Participant’s required beginning date. If the surviving-spouse election applies, distributions are considered to begin on the date distributions are required to begin to the surviving spouse under Section 6.8(b).

(3)Forms of distribution. Unless the Participant’s interest is distributed in a single sum on or before the required beginning date, as of the first distribution calendar year distributions will be made in accordance with Sections 6.8(c) and 6.8(d). All distributions under this Section shall be made in a manner which is consistent with and satisfies the provisions of Section 6.5, including, but not limited to, all notice and consent requirements of Code Section 411(a)(11) and the Regulations thereunder.

(c)Required minimum distributions during Participant’s lifetime

(1)Amount of required minimum distribution for each distribution calendar year. During the Participant’s lifetime, the minimum amount that will be distributed for each distribution calendar year is the lesser of:

(i)the quotient obtained by dividing the Participant’s Account balance by the distribution period in the Uniform Lifetime Table set forth in

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Regulation Section 1.401(a)(9)-9, using the Participant’s age as of the Participant’s birthday in the distribution calendar year; or

(ii)if the Participant’s sole designated beneficiary for the distribution calendar year is the Participant’s spouse and the spouse is more than 10 years younger than the Participant, the quotient obtained by dividing the Participant’s Account balance by the number in the Joint and Last Survivor Table set forth in Regulation Section 1.401(a)(9)-9, using the Participant’s and spouse’s attained ages as of the Participant’s and spouse’s birthdays in the distribution calendar year.

(2)Lifetime required minimum distributions continue through year of Participant’s death. Required minimum distributions will be determined under this Section 6.8(c) beginning with the first distribution calendar year and up to and including the distribution calendar year that includes the Participant’s date of death.

(d)Required minimum distributions after Participant’s death

(1)Death on or after date distributions begin.

(i)Participant survived by designated beneficiary. If the Participant dies on or after the date distributions begin and there is a designated beneficiary, the minimum amount that will be distributed for each distribution calendar year after the year of the Participant’s death is the quotient obtained by dividing the Participant’s Account balance by the longer of the remaining life expectancy of the Participant or the remaining life expectancy of the Participant’s designated beneficiary, determined as follows:

(A)The Participant’s remaining life expectancy is calculated using the age of the Participant in the year of death, reduced by one for each subsequent year.

(B)If the Participant’s surviving spouse is the Participant’s sole designated beneficiary, the remaining life expectancy of the surviving spouse is calculated for each distribution calendar year after the year of the Participant’s death using the surviving spouse’s age as of the spouse’s birthday in that year. For distribution calendar years after the year of the surviving spouse’s death, the remaining life expectancy of the surviving spouse is calculated using the age of the surviving spouse as of the spouse’s birthday in the calendar year of the spouse’s death, reduced by one for each subsequent calendar year.

(C)If the Participant’s surviving spouse is not the Participant’s sole designated beneficiary, the designated beneficiary’s remaining life expectancy is calculated using the age of the beneficiary in the

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year following the year of the Participant’s death, reduced by one for each subsequent year.

(ii)No designated beneficiary. If the Participant dies on or after the date distributions begin and there is no designated beneficiary as of September 30 of the year after the year of the Participant’s death, the minimum amount that will be distributed for each distribution calendar year after the year of the Participant’s death is the quotient obtained by dividing the Participant’s Account balance by the Participant’s remaining life expectancy calculated using the age of the Participant in the year of death, reduced by one for each subsequent year.

(2)Death before date distributions begin.

(i)Participant survived by designated beneficiary. Except as provided in Section 6.8(b)(3), if the Participant dies before the date distributions begin and there is a designated beneficiary, the minimum amount that will be distributed for each distribution calendar year after the year of the Participant’s death is the quotient obtained by dividing the Participant’s Account balance by the remaining life expectancy of the Participant’s designated beneficiary, determined as provided in Section 6.8(d)(1).

(ii)No designated beneficiary. If the Participant dies before the date distributions begin and there is no designated beneficiary as of September 30 of the year following the year of the Participant’s death, distribution of the Participant’s entire interest will be completed by December 31 of the calendar year containing the fifth anniversary of the Participant’s death.

(iii)Death of surviving spouse before distributions to surviving spouse are required to begin. If the Participant dies before the date distributions begin, the Participant’s surviving spouse is the Participant’s sole designated beneficiary, and the surviving spouse dies before distributions are required to begin to the surviving spouse under Section 6.8(b), this Section 6.8(d)(2) will apply as if the surviving spouse were the Participant.

(e)Definitions. For purposes of this Section, the following definitions apply:

(1)“Designated beneficiary” means the individual who is designated as the Beneficiary under the Plan and is the designated beneficiary under Code Section 401(a)(9) and Regulation Section 1.401(a)(9)-4, Q&A-4.

(2)“Distribution calendar year” means a calendar year for which a minimum distribution is required. For distributions beginning before the Participant’s death, the first distribution calendar year is the calendar year immediately preceding the calendar year which contains the Participant’s “required beginning date.” For distributions beginning after the Participant’s death, the first distribution calendar year is the calendar year in which distributions are required to begin under Section 6.8(b).

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The required minimum distribution for the Participant’s first distribution calendar year will be made on or before the Participant’s “required beginning date.” The required minimum distribution for other distribution calendar years, including the required minimum distribution for the distribution calendar year in which the Participant’s “required beginning date” occurs, will be made on or before December 31 of that distribution calendar year.

(3)“Life expectancy” means the life expectancy as computed by use of the Single Life Table in Regulation Section 1.401(a)(9)-9, Q&A-1.

(4)“Participant’s account balance” means the “Participant’s account balance” as of the last Valuation Date in the calendar year immediately preceding the Distribution calendar year (valuation calendar year) increased by the amount of any contributions made and allocated or Forfeitures allocated to the account balance as of dates in the valuation calendar year after the Valuation Date and decreased by distributions made in the valuation calendar year after the Valuation Date. For this purpose, the Administrator may exclude contributions that are allocated to the account balance as of dates in the valuation calendar year after the Valuation Date, but that are not actually made during the valuation calendar year. The account balance for the valuation calendar year includes any amounts rolled over or transferred to the Plan either in the valuation calendar year or in the Distribution calendar year if distributed or transferred in the valuation calendar year.

(5)“Required beginning date” means, with respect to any Participant, April 1 of the calendar year following the later of the calendar year in which the Participant attains age 70 1/2 or the calendar year in which the Participant retires, except that benefit distributions to a 5-percent owner must commence by April 1 of the calendar year following the calendar year in which the Participant attains age 70 1/2.

(6)“5-percent owner” means a Participant who is a 5-percent owner as defined in Code Section 416 at any time during the Plan Year ending with or within the calendar year in which such owner attains age 70 1/2. Once distributions have begun to a 5-percent owner under this Section they must continue to be distributed, even if the Participant ceases to be a 5-percent owner in a subsequent year.

(f)Statutory (TEFRA) Transition Rules

(1)Notwithstanding the other provisions of this Section, other than the spouse’s right of consent afforded under the Plan, distributions may be made on behalf of any Participant, including a five percent (5%) owner, who has made a designation in accordance with Section 242(b)(2) of the Tax Equity and Fiscal Responsibility Act (TEFRA) and in accordance with all of the following requirements (regardless of when such distribution commences):

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(i)The distribution by the Plan is one which would not have disqualified such plan under Code Section 401(a)(9) as in effect prior to amendment by the Deficit Reduction Act of 1984.

(ii)The distribution is in accordance with a method of distribution designated by the Participant whose interest in the plan is being distributed or, if the Participant is deceased, by a Beneficiary of such Participant.

(iii)Such designation was in writing, was signed by the Participant or the Beneficiary, and was made before January 1, 1984.

(iv)The Participant had accrued a benefit under the Plan as of December 31, 1983.

(v)The method of distribution designated by the Participant or the Beneficiary specifies the time at which distribution will commence, the period over which distributions will be made, and in the case of any distribution upon the Participant’s death, the Beneficiaries of the Participant listed in order of priority.

(2)A distribution upon death will not be covered by the transitional rule of this subsection unless the information in the designation contains the required information described above with respect to the distributions to be made upon the death of the Participant.

(3)For any distribution which commences before January 1, 1984, but continues after December 31, 1983, the Participant, or the Beneficiary, to whom such distribution is being made, will be presumed to have designated the method of distribution under which the distribution is being made if the method of distribution was specified in writing and the distribution satisfies the requirements in (1)(i) and (1)(v) of this subsection.

(4)If a designation is revoked, any subsequent distribution must satisfy the requirements of Code Section 401(a)(9) and the Regulations thereunder. If a designation is revoked subsequent to the date distributions are required to begin, the Plan must distribute by the end of the calendar year following the calendar year in which the revocation occurs the total amount not yet distributed which would have been required to have been distributed to satisfy Code Section 401(a)(9) and the Regulations thereunder, but for the Section 242(b)(2) election. For calendar years beginning after December 31, 1988, such distributions must meet the minimum distribution incidental benefit requirements. Any changes in the designation will be considered to be a revocation of the designation. However, the mere substitution or addition of another Beneficiary (one not named in the designation) under the designation will not be considered to be a revocation of the designation, so long as such substitution or addition does not alter the period over which distributions are to be made under the designation, directly or indirectly (for example, by altering the relevant measuring life).

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(5)In the case in which an amount is transferred or rolled over from one plan to another plan, the rules in Regulation Section 1.401(a)(9)-8, Q&A-14 and Q&A-15, shall apply.

6.9DISTRIBUTION FOR MINOR OR INCOMPETENT INDIVIDUAL

In the event a distribution is to be made to a minor or incompetent individual, then the Administrator may direct that such distribution be paid to the court-appointed legal guardian or any other person authorized under state law to receive such distribution, or if none, then in the case of a minor Beneficiary, to a parent of such Beneficiary, or to the custodian for such Beneficiary under the Uniform Gift to Minors Act or Gift to Minors Act, if such is permitted by the laws of the state in which said Beneficiary resides. Such a payment to the guardian, custodian or parent of a minor or incompetent individual shall fully discharge the Trustee, Employer, and Plan from further liability on account thereof.

6.10LOCATION OF PARTICIPANT OR BENEFICIARY UNKNOWN

In the event that all, or any portion, of the distribution payable to a Participant or Beneficiary hereunder shall, at the later of the Participant’s attainment of age 62 or Normal Retirement Age, remain unpaid solely by reason of the inability of the Administrator, after sending a registered letter, return receipt requested, to the last known address, and after further diligent effort, to ascertain the whereabouts of such Participant or Beneficiary, the amount so distributable shall be treated as a Forfeiture pursuant to the Plan. Notwithstanding the foregoing, effective with respect to distributions made after March 28, 2005, if the Plan provides for mandatory distributions and the amount to be distributed to a Participant or Beneficiary does not exceed $1,000, then the amount distributable may, in the sole discretion of the Administrator, either be treated as a Forfeiture, or be paid directly to an individual retirement account described in Code Section 408(a) or an individual retirement annuity described in Code Section 408(b) at the time it is determined that the whereabouts of the Participant or the Participant’s Beneficiary cannot be ascertained. In the event a Participant or Beneficiary is located subsequent to the Forfeiture, such benefit shall be restored, first from Forfeitures, if any, and then from an additional Employer contribution if necessary. Upon Plan termination, the portion of the distributable amount that is an eligible rollover distribution as defined in Plan Section 6.14 may be paid directly to an individual retirement account described in Code Section 408(a) or an individual retirement annuity described in Code Section 408(b). However, regardless of the preceding, a benefit that is lost by reason of escheat under applicable state law is not treated as a Forfeiture for purposes of this Section nor as an impermissible forfeiture under the Code.

6.11PRE-RETIREMENT DISTRIBUTION OF EMPLOYER CONTRIBUTIONS

At such time as a Participant shall have attained age 59 1/2, the Administrator, at the election of the Participant who has not severed employment with the Employer, shall direct the Trustee to distribute all or a portion of the Vested amount then credited to all accounts maintained on behalf of the Participant.

In the event that the Administrator makes such a distribution, the Participant shall continue to be eligible to participate in the Plan on the same basis as any other Employee. Any distribution made pursuant to this Section shall be made in a manner consistent with Section 6.5,

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including, but not limited to, all notice and consent requirements of Code Section 411(a)(11) and the Regulations thereunder.

Notwithstanding anything in this Section to the contrary, pre-retirement distributions from a Participant’s Elective Deferral Account, Qualified Nonelective Contribution Account, or Qualified Matching Contribution Account shall not be permitted prior to the Participant attaining age 59 1/2 or one of the other events described in Section 4.2(d).

The following provision(s) also apply:

(a)The Roth Elective Deferral Account shall be distributed last.

6.12ADVANCE DISTRIBUTION FOR HARDSHIP

(a)The Administrator, at the election of the Participant whether or not currently employed as an Employee, shall direct the Trustee to distribute to any Participant from the Vested portion of the Participant’s Account the amount necessary to satisfy the immediate and heavy financial need of the Participant, subject to the limitations of this Section. Any distribution made pursuant to this Section shall be deemed to be made as of the first day of the Plan Year or, if later, the Valuation Date immediately preceding the date of distribution. Any withdrawal made pursuant to this Section shall be deemed to be on account of an immediate and heavy financial need of the Participant if the withdrawal is for:

(1)Expenses for (or necessary to obtain) medical care (for the Participant or the spouse or dependent of the Participant) that would be deductible by the Participant under Code Section 213(d) (determined without regard to whether the expenses exceed 7.5% of adjusted gross income);

(2)Costs directly related to the purchase (excluding mortgage payments) of a principal residence for the Participant;

(3)Payments for burial or funeral expenses for the Participant’s deceased parent, spouse, children or dependents (as defined in Code Section 152, and, for taxable years beginning on or after January 1, 2005, without regard to Code Section 152(d)(1)(B));

(4)Payment of tuition, related educational fees, and room and board expenses, for up to the next twelve (12) months of post-secondary education for the Participant, the Participant’s spouse, children, or dependents (as defined in Code Section 152, and, for taxable years beginning on or after January 1, 2005, without regard to Code Sections 152(b)(1), (b)(2), and (d)(1)(B));

(5)Payments necessary to prevent the eviction of the Participant from the Participant’s principal residence or foreclosure on the mortgage on that residence; or

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(6)Expenses for the repair of damage to the Participant’s principal residence that would qualify for the casualty deduction under Code Section 165 (determined without regard to whether the loss exceeds 10% of adjusted gross income).

(b)No distribution shall be made pursuant to this Section unless the Administrator, based upon the Participant’s representation and such other facts as are known to the Administrator, determines that all of the following conditions are satisfied:

(1)The distribution is not in excess of the amount of the immediate and heavy financial need of the Participant. The amount of the immediate and heavy financial need may include any amounts necessary to pay any federal, state, or local income taxes or penalties reasonably anticipated to result from the distribution;

(2)The Participant has obtained all distributions, other than hardship distributions, and all nontaxable (at the time of the loan) loans currently available under all plans maintained by the Employer; and

(3)The Plan, and all other plans maintained by the Employer, provide that the Participant’s Elective Deferrals and After-Tax Voluntary Contributions will be suspended for at least six (6) months after receipt of the hardship distribution or, the Participant, pursuant to a legally enforceable agreement, will suspend Elective Deferrals and After-Tax Voluntary Contributions to the Plan and all other plans maintained by the Employer for at least six (6) months after receipt of the hardship distribution;

(c)Notwithstanding the above, distributions from the Participant’s “elective account” pursuant to this Section shall be limited in amount, as of the date of distribution, to the Participant’s “elective account” as of the end of the last Plan Year ending before July 1, 1989, plus the sum of the Participant’s Elective Deferrals after such date, reduced by the amount of any previous distributions from this Account pursuant to this Section and Section 6.11. A Participant’s “elective account” shall be the amount attributable to Elective Deferrals, Qualified Matching Contributions, and Qualified Nonelective Contributions as of the end of the last Plan Year ending before July 1, 1989.

(d)Any distribution made pursuant to this Section shall be made in a manner which is consistent with and satisfies the provisions of Section 6.5, including, but not limited to, all notice and consent requirements of Code Section 411(a)(11) and the Regulations thereunder.

(e)The following limitations apply to hardship distributions:

(1)Hardship distributions may be made subject to the following provisions: Pre-Tax Elective Deferrals will be distributed first.

(f)Hardship distributions may be made from only the following accounts:

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(1)Pre-Tax Elective Deferral Account, subject to the limitations described above with respect to hardship distributions of Elective Deferrals

(2)Roth Elective Deferral Account, subject to the limitations described above with respect to hardship distributions of Elective Deferrals

6.13QUALIFIED DOMESTIC RELATIONS ORDER DISTRIBUTION

All rights and benefits, including elections, provided to a Participant in this Plan shall be subject to the rights afforded to any alternate payee under a qualified domestic relations order. Furthermore, a distribution to an alternate payee shall be permitted if such distribution is authorized by a qualified domestic relations order, even if the affected Participant has not separated from service and has not reached the earliest retirement age. For the purposes of this Section, the terms “alternate payee,” “qualified domestic relations order” and “earliest retirement age” shall have the meaning set forth under Code Section 414(p).

6.14DIRECT ROLLOVER

(a) Right to direct partial rollover. Notwithstanding any provision of the Plan to the contrary that would otherwise limit a distributee’s election under this Section, a distributee may elect, at the time and in the manner prescribed by the Administrator, to have only a portion of an eligible rollover distribution paid directly to an eligible retirement plan specified by the distributee in a direct rollover. However, the minimum partial rollover must equal at least $500 (applied separately with respect to distributions payable from a Participant’s Roth Elective Deferral Account and remainder of the distributable amount).

(b)For purposes of this Section the following definitions shall apply:

(1)An “eligible rollover distribution” means any distribution described in Code Section 402(c)(4) and generally includes any distribution of all or any portion of the balance to the credit of the distributee, except that an eligible rollover distribution does not include: any distribution that is one of a series of substantially equal periodic payments (not less frequently than annually) made for the life (or life expectancy) of the distributee or the joint lives (or joint life expectancies) of the distributee and the distributee’s Designated Beneficiary, or for a specified period of ten (10) years or more; any distribution to the extent such distribution is required under Code Section 401(a)(9); the portion of any other distribution(s) that is not includible in gross income (determined without regard to the exclusion for net unrealized appreciation with respect to employer securities); and any other distribution (without regard to the amount to be distributed from the Participant’s Roth Elective Deferral Account) reasonably expected to total less than $200 during a year. Any amount that is distributed on account of hardship shall not be an eligible rollover distribution and the distributee may not elect to have any portion of such a distribution paid directly to an eligible retirement plan.

Notwithstanding the above, a portion of a distribution shall not fail to be an eligible rollover distribution merely because the portion consists of After-Tax Voluntary Contributions which are not includible in gross income. However, such

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portion may be transferred only to an individual retirement account or annuity described in Code Section 408(a) or (b), or to a qualified defined contribution plan described in Code Section 401(a) or 403(a) that agrees to separately account for amounts so transferred, including separately accounting for the portion of such distribution which is includible in gross income and the portion of such distribution which is not so includible.

(2)An “eligible retirement plan” is an individual retirement account described in Code Section 408(a), an individual retirement annuity described in Code Section 408(b), (other than an endowment contract), a qualified trust (an employees’ trust) described in Code Section 401(a) which is exempt from tax under Code Section 501(a) and which agrees to separately account for amounts transferred into such plan from this Plan, an annuity plan described in Code Section 403(a), an eligible deferred compensation plan described in Code Section 457(b) which is maintained by a state, political subdivision of a state, or any agency or instrumentality thereof which agrees to separately account for amounts transferred into such plan from this Plan, and an annuity contract described in Code Section 403(b) that accepts the distributee’s eligible rollover distribution. The definition of eligible retirement plan shall also apply in the case of a distribution to a surviving spouse, or to a spouse or former spouse who is the alternate payee under a qualified domestic relation order, as defined in Code Section 414(p). A direct rollover of a distribution from a Roth Elective Deferral Account will only be made to another Roth Elective Deferral Account under an applicable retirement plan described in Code Section 402A(e)(1) or to a Roth IRA described in Code Section 408A, and only to the extent that the rollover is permitted under the rules of 402(c).

(3)A “distributee” includes an Employee or Former Employee. In addition, the Employee’s or Former Employee’s surviving spouse and the Employee’s or Former Employee’s spouse or former spouse who is the alternate payee under a qualified domestic relations order, as defined in Code Section 414(p), are distributees with regard to the interest of the spouse or former spouse.

(4)A “direct rollover’ is a payment by the Plan to the “eligible retirement plan” specified by the distributee.

(c)Participant Notice. A Participant entitled to an eligible rollover distribution must receive a written explanation of his/her right to a direct rollover, the tax consequences of not making a direct rollover, and, if applicable, any available special income tax elections. The notice must be provided within the same 30-to-90 day timeframe applicable to the Participant consent notice. The direct rollover notice must be provided to all Participants, unless the total amount the Participant will receive as a distribution during the calendar year (without regard to the amount to be distributed from the Participant’s Roth Elective Deferral Account) is expected to be less than $200.

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6.15TRANSFER OF ASSETS FROM A MONEY PURCHASE PLAN

Notwithstanding any provision of this Plan to the contrary, to the extent that any optional form of benefit under this Plan permits a distribution prior to the Employee’s attainment of Normal Retirement Age, death, disability, or severance from employment, and prior to Plan termination, the optional form of benefit is not available with respect to benefits attributable to assets (including the post-transfer earnings thereon) and liabilities that are transferred, within the meaning of Code Section 414(l), to this Plan from a money purchase pension plan qualified under Code Section 401(a) (other than any portion of those assets and liabilities attributable to after-tax voluntary employee contributions or to a direct or indirect rollover contribution).

6.16CORRECTIVE DISTRIBUTIONS

Nothing in this Article shall preclude the Administrator from making a distribution to a Participant, to the extent such distribution is made to correct a qualification defect in accordance with the corrective procedures under any voluntary compliance program.

ARTICLE VII
AMENDMENT, TERMINATION, MERGERS AND LOANS

7.1AMENDMENT

(a)General rule on Employer amendment. The Employer shall have the right at any time to amend this Plan, subject to the limitations of this Section. However, any amendment which affects the rights, duties or responsibilities of the Trustee or Administrator may only be made with the Trustee’s or Administrator’s written consent. Any such amendment shall become effective as provided therein upon its execution. The Trustee shall not be required to execute any such amendment unless the amendment affects the duties of the Trustee hereunder.

(b)Permissible amendments without affecting reliance. The Employer may make the modifications described below without affecting reliance on the terms of the Plan. An Employer that amends the Plan for any other reason may not rely on the advisory letter that the terms of the Plan meet the qualification requirements of the Code. Permitted changes include: adding options permitted by the Plan; adding or deleting provisions that are optional under the volume submitter specimen plan; changing effective dates within the parameters of the volume submitter specimen plan; correcting obvious and unambiguous typographical errors; correcting cross-references that do not in any way, change the original intended meaning of the provisions; adding a list of benefits that must be preserved as protected benefits within the meaning of Code Section 411(d)(6) and the regulations thereunder; amending provisions dealing with the administration of the Trust; a change to the name of the Plan, Employer, Trustee, custodian, Plan Administrator or any other fiduciary, the Plan Year; and any sample or model amendment published by the IRS (or other required good-faith amendments) which specifically provide that their adoption will not cause the plan to be treated as an individually designed plan.

(c)Sponsoring practitioner amendments. Effective March 31, 2008, the Employer (and every Participating Employer) expressly delegates authority to the sponsoring organization of this Volume Submitter Plan the right to amend the Plan by submitting a copy of the

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amendment to each Employer (and Participating Employer) who has adopted this Volume Submitter Plan, after first having received a ruling or favorable determination from the Internal Revenue Service that the Volume Submitter Plan as amended qualifies under Code Section 401(a) (unless a ruling or determination is not required by the IRS). However, the volume submitter practitioner shall cease to have the authority to amend on behalf of an Employer that adopts an impermissible plan type or impermissible plan provision (as described in IRS Announcement 2005-37 and any subsequent guidance). The volume submitter practitioner will maintain a record of the Employers that have adopted the Plan, and the practitioner will make reasonable and diligent efforts to ensure that adopting Employers adopt new documents when necessary. This subsection supersedes other provisions of the Plan to the extent those other provisions are inconsistent with this subsection.

(d)Impermissible amendments. No amendment to the Plan shall be effective if it authorizes or permits any part of the Trust Fund (other than such part as is required to pay taxes and administration expenses) to be used for or diverted to any purpose other than for the exclusive benefit of the Participants or their Beneficiaries or estates, or causes any reduction in the amount credited to the account of any Participant, or causes or permits any portion of the Trust Fund to revert to or become property of the Employer.

(e)Anti-cutback restrictions. Except as permitted by Regulations (including Regulation 1.411(d)-4) or other IRS guidance, no Plan amendment or transaction having the effect of a Plan amendment (such as a merger, plan transfer or similar transaction) shall be effective if it eliminates or reduces any Section 411(d)(6) protected benefit or adds or modifies conditions relating to Section 411(d)(6) protected benefits which results in a further restriction on such benefits unless such “Section 411(d)(6) protected benefits” are preserved with respect to benefits accrued as of the later of the adoption date or effective date of the amendment. The term “Section 411(d)(6) protected benefits” means benefits described in Code Section 411(d)(6)(A), early retirement benefits and retirement-type subsidies, and optional forms of benefit. An amendment which has the effect of decreasing a Participant’s Account balance with respect to benefits attributable to service before the amendment shall be treated as reducing an accrued benefit. The preceding shall not apply to a Plan amendment that eliminates or restricts the ability of a Participant to receive payment of his or her Account under a particular optional form of benefit if the amendment provides a single-sum distribution form that is otherwise identical to the optional form of benefit being eliminated or restricted. For this purpose, a single-sum distribution form is otherwise identical only if the single-sum distribution form is identical in all respects to the eliminated or restricted optional form of benefit (or would be identical except that it provides greater rights to the Participant) except with respect to the timing of payments after commencement.

7.2TERMINATION

(a)Termination of Plan. The Employer shall have the right at any time to terminate the Plan by delivering to the Trustee and Administrator written notice of such termination. Upon any full or partial termination, all amounts credited to the affected Participants’ Accounts shall become 100% Vested as provided in Section 6.4 and shall not thereafter be subject to forfeiture.

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(b)Distribution of assets. Upon the full termination of the Plan, the Employer shall direct the distribution of the assets of the Plan to Participants in a manner which is consistent with the provisions of Section 6.5 except that no Participant or spousal consent is required. Distributions to a Participant shall be made in cash or through the purchase of irrevocable nontransferable deferred commitments from an insurer. Except as permitted by Regulations, the termination of the Plan shall not result in the reduction of Section 411(d)(6) protected benefits in accordance with Section 7.1(e).

(c)Abandoned plan. If the Employer, in accordance with DOL guidance, abandons the Plan, then the Trustee (or Insurer) or other party permitted to take action as a qualified terminal administrator (QTA), may terminate the Plan in accordance with applicable Department of Labor and IRS regulations and other guidance.

7.3MERGER, CONSOLIDATION OR TRANSFER OF ASSETS

This Plan may be merged or consolidated with, or its assets and/or liabilities may be transferred to any other plan and trust, only if the benefits which would be received by a Participant of this Plan, in the event of a termination of the Plan immediately after such transfer, merger or consolidation, are at least equal to the benefits the Participant would have received if the Plan had terminated immediately before the transfer, merger or consolidation, and such transfer, merger or consolidation does not otherwise result in the elimination or reduction of any Section 411(d)(6) protected benefits in accordance with Section 7.1(e).

7.4LOANS TO PARTICIPANTS

(a)Permitted loans. The Trustee (or the Administrator if the Trustee is a nondiscretionary Trustee or if loans are treated as Participant directed investments pursuant to this Plan) may, in the Trustee’s (or, if applicable, the Administrator’s) sole discretion, make Plan loans to Participants or Beneficiaries under the following circumstances: (1) loans shall be made available to Participants and Beneficiaries on a reasonably equivalent basis; (2) loans shall not be made available to Highly Compensated Employees in an amount greater than the amount that is made available to other Participants and Beneficiaries; (3) loans shall bear a reasonable rate of interest; (4) loans shall be adequately secured; and (5) loans shall provide for periodic repayment over a reasonable period of time. Furthermore, no Plan loan shall exceed a Participant’s Vested interest in the Plan.

(b)Prohibited assignment or pledge. An assignment or pledge of any portion of a Participant’s interest in the Plan and a loan, pledge, or assignment with respect to any insurance Contract purchased under the Plan, shall be treated as a Plan loan under this Section.

(c)Loan program. The Administrator shall be authorized to establish a Participant Loan Program to provide for loans under the Plan. The Participant Loan Program shall be established in accordance with Department of Labor regulation Section 2550.408(b)-1(d)(2) providing for loans by the Plan to parties-in-interest under this Plan, such as Participants or Beneficiaries. In order for the Administrator to implement such Participant Loan Program, a

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separate written document forming a part of this Plan must be adopted, which document shall specifically include, but need not be limited to, the following:

(1)the identity of the person or positions authorized to administer the Participant loan program;

(2)a procedure for applying for loans;

(3)the basis on which loans will be approved or denied;

(4)limitations, if any, on the types and amounts of loans offered;

(5)the procedure under the program for determining a reasonable rate of interest;

(6)the types of collateral which may secure a Participant loan; and

(7)the events constituting default and the steps that will be taken to preserve Plan assets in the event such default.

Such Participant Loan Program shall be contained in a separate written document which, when properly executed, is hereby incorporated by reference and made a part of the Plan. Furthermore, such Participant Loan Program may be modified or amended in writing from time to time without the necessity of amending this Plan.

(d)Loan default. Notwithstanding anything in this Plan to the contrary, if a Participant or Beneficiary defaults on a Plan loan made pursuant to this Section and such loan is secured by the Participant’s interest in the Plan, then, to the extent provided in the Participant loan program, a Participant’s interest may be offset by the amount subject to the security to the extent there is a distributable event permitted by the Code or Regulations.

(e)Loans subject to Plan terms. Notwithstanding anything in this Section to the contrary, any Plan loans made prior to the date this amendment and restatement is adopted shall be subject to the terms of the Plan in effect at the time such loan was made.

ARTICLE VIII
TOP-HEAVY

8.1TOP-HEAVY PLAN REQUIREMENTS

(a)Top-Heavy requirements. For any Top-Heavy Plan Year, the Plan shall provide the special vesting requirements of Code Section 416(b) pursuant to Section 6.4 of the Plan and the minimum required allocation of Code Section 416(c) pursuant to Section 4.4 of the Plan.

(b)Top-Heavy exemption. Notwithstanding the provisions of the previous subsection, the Top-Heavy Plan Year requirements of this Article and Code Section 416 shall not apply in any Plan Year in which the Plan consists solely of ADP Test Safe Harbor Contributions

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which meet the requirements of Code Section 401(k)(12), Matching Contributions which meet the requirements of Code Section 401(m)(11) and Elective Deferrals.

8.2DETERMINATION OF TOP-HEAVY STATUS

(a)Definition of Top-Heavy Plan. This Plan shall be a Top-Heavy Plan if any of the following conditions exists:

(1)if the “top-heavy ratio” for this Plan exceeds sixty percent (60%) and this Plan is not part of any “required aggregation group” or “permissive aggregation group”;

(2)if this Plan is a part of a “required aggregation group” but not part of a “permissive aggregation group” and the “top-heavy ratio” for the group of plans exceeds sixty percent (60%); or

(3)if this Plan is a part of a “required aggregation group” and part of a “permissive aggregation group” and the “top-heavy ratio” for the “permissive aggregation group” exceeds sixty percent (60%).

(b)Top-heavy ratio. “Top-heavy ratio” means, with respect to a “determination date”:

(1)If the Employer maintains one or more defined contribution plans (including any simplified employee pension plan (as defined in Code Section 408(k)) and the Employer has not maintained any defined benefit plan which during the 5-year period ending on the “determination date” has or has had accrued benefits, the top-heavy ratio for this plan alone or for the “required aggregation group” or “permissive aggregation group” as appropriate is a fraction, the numerator of which is the sum of the account balances of all Key Employees as of the “determination date” (including any part of any account balance distributed in the 1-year period ending on the “determination date”) (5-year period ending on the “determination date” in the case of a distribution made for a reason other than severance from employment, death or disability and in determining whether the Plan is top-heavy for Plan Years beginning before January 1, 2002), and the denominator of which is the sum of all account balances (including any part of any account balance distributed in the 1-year period ending on the “determination date”) (5-year period ending on the “determination date” in the case of a distribution made for a reason other than severance from employment, death or disability and in determining whether the Plan is top-heavy for Plan Years beginning before January 1, 2002), both computed in accordance with Code Section 416 and the Regulations thereunder.

Both the numerator and denominator of the top-heavy ratio are increased to reflect any contribution not actually made as of the “determination date,” but which is required to be taken into account on that date under Code Section 416 and the Regulations thereunder.

(2)If the Employer maintains one or more defined contribution plans (including any simplified employee pension plan) and the Employer maintains or has

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maintained one or more defined benefit plans which during the 5-year period ending on the “determination date” has or has had any accrued benefits, the top-heavy ratio for any “required aggregation group” or “permissive aggregation group” as appropriate is a fraction, the numerator of which is the sum of account balances under the aggregated defined contribution plan or plans for all Key Employees, determined in accordance with (1) above, and the present value of accrued benefits under the aggregated defined benefit plan or plans for all Key Employees as of the “determination date,” and the denominator of which is the sum of the account balances under the aggregated defined contribution plan or plans for all participants, determined in accordance with (1) above, and the present value of accrued benefits under the defined benefit plan or plans for all participants as of the “determination date,” all determined in accordance with Code Section 416 and the Regulations thereunder. The accrued benefits under a defined benefit plan in both the numerator and denominator of the top-heavy ratio are increased for any distribution of an accrued benefit made in the 1-year period ending on the “determination date” (5-year period ending on the “determination date” in the case of a distribution made for a reason other than severance from employment, death or disability and in determining whether the Plan is top-heavy for Plan Years beginning before January 1, 2002).

(3)For purposes of (1) and (2) above, the value of account balances and the present value of accrued benefits will be determined as of the most recent “valuation date” that falls within or ends with the 12-month period ending on the “determination date,” except as provided in Code Section 416 and the Regulations thereunder for the first and second plan years of a defined benefit plan. The account balances and accrued benefits of a participant (i) who is not a Key Employee but who was a Key Employee in a prior year, or (ii) who has not been credited with at least one Hour of Service with any Employer maintaining the plan at any time during the 1-year period (5-year period in determining whether the Plan is top-heavy for Plan Years beginning before January 1, 2002) ending on the “determination date” will be disregarded. The calculation of the top-heavy ratio, and the extent to which distributions, rollovers, and transfers are taken into account will be made in accordance with Code Section 416 and the Regulations thereunder. Deductible employee contributions will not be taken into account for purposes of computing the top-heavy ratio. When aggregating plans the value of account balances and accrued benefits will be calculated with reference to the “determination dates” that fall within the same calendar year.

The accrued benefit of a participant other than a Key Employee shall be determined under (i) the method, if any, that uniformly applies for accrual purposes under all defined benefit plans maintained by the employer, or (ii) if there is no such method, as if such benefit accrued not more rapidly than the slowest accrual rate permitted under the fractional rule of Code Section 411(b)(1)(C).

(4)The calculation of top-heavy ratio, and the extent to which distributions, rollovers, and transfers are taken into account, will be made in accordance with Code Section 416 and the regulations thereunder.

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(c)Determination date. “Determination date” means, for any Plan Year subsequent to the first Plan Year, the last day of the preceding Plan Year. For the first Plan Year of the Plan, “determination date” means the last day of that Plan Year.

(d)Permissive aggregation group. “Permissive aggregation group” means the “required aggregation group” of plans plus any other plan or plans of the Employer or any Affiliated Employer which, when considered as a group with the required aggregation group, would continue to satisfy the requirements of Code Sections 401(a)(4) and 410.

(e)Required aggregation group. “Required aggregation group” means: (1) each qualified plan of the Employer or any Affiliated Employer in which at least one Key Employee participates or participated at any time during the Plan Year containing the determination date or any of the four preceding plan years (regardless of whether the plan has terminated), and (2) any other qualified plan of the Employer or any Affiliated Employer which enables a plan described in (l) to meet the requirements of Code Sections 401(a)(4) or 410.

(f)Valuation Date. ‘Valuation date” means the date elected by the Employer as of which account balances or accrued benefits are valued for purposes of calculating the “top-heavy ratio.”

ARTICLE IX
MISCELLANEOUS

9.1PARTICIPANTS RIGHTS

This Plan shall not be deemed to constitute a contract between the Employer and any Participant or to be a consideration or an inducement for the employment of any Participant or Employee. Nothing contained in this Plan shall be deemed to give any Participant or Employee the right to be retained in the service of the Employer or to interfere with the right of the Employer to discharge any Participant or Employee at any time regardless of the effect which such discharge shall have upon the Employee as a Participant of this Plan.

9.2ALIENATION OF BENEFITS

(a)General rule. Subject to the exceptions provided below, and as otherwise permitted by the Code and the Act, no benefit which shall be payable to any person (including a Participant or the Participant’s Beneficiary) shall be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, or charge, and any attempt to anticipate, alienate, sell, transfer, assign, pledge, encumber, or charge the same shall be void; and no such benefit shall in any manner be liable for, or subject to, the debts, contracts, liabilities, engagements, or torts of any such person, nor shall it be subject to attachment or legal process for or against such person, and the same shall not be recognized, except to such extent as may be required by law.

(b)Exception for loans. Subsection (a) shall not apply to the extent a Participant or Beneficiary is indebted to the Plan, by reason of a loan made pursuant to Section 7.4. At the time a distribution is to be made to or for a Participant’s or Beneficiary’s benefit, such

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proportion of the amount to be distributed as shall equal such indebtedness shall be paid to the Plan, to apply against or discharge such indebtedness. Prior to making a payment, however, the Participant or Beneficiary must be given written notice by the Administrator that such indebtedness is to be so paid in whole or part from the Participant’s Account. If the Participant or Beneficiary does not agree that the indebtedness is a valid claim against the Vested Participant’s Account, the Participant or Beneficiary shall be entitled to a review of the validity of the claim in accordance with procedures provided in Sections 2.8 and 2.9.

(c)Exception for QDRO. Subsection (a) shall not apply to a qualified domestic relations order defined in Code Section 414(p), and those other domestic relations orders permitted to be so treated by the Administrator under the provisions of the Retirement Equity Act of 1984. The Administrator shall establish a written procedure to determine the qualified status of domestic relations orders and to administer distributions under such qualified orders. Further, to the extent provided under a qualified domestic relations order, a former spouse of a Participant shall be treated as the spouse or surviving spouse for all purposes under the Plan.

(d)Exception for certain debts to Plan. Subsection (a) shall not apply to an offset to a Participant’s accrued benefit against an amount that the Participant is ordered or required to pay the Plan with respect to a judgment, order, or decree issued, or a settlement entered into in accordance with Code Sections 401(a)(13)(C) and (D).

9.3CONSTRUCTION AND INTERPRETATION OF PLAN

(a)Applicable state laws. This Plan shall be construed and enforced according to the Code, the Act and the laws of the State of Ohio, other than its laws respecting choice of law, to the extent not pre-empted by Federal law.

(b)Single subsections. This Plan may contain single subsections. The existence of such single subsections shall not constitute scrivener’s errors.

(c)Separate Accounts. Unless otherwise specified by a particular provision, the term “separate account” does not require a separate fund, only a notational entry in a recordkeeping system.

9.4GENDER AND NUMBER

(a)Masculine and feminine. Wherever any words are used herein in the masculine, feminine or neuter gender, they shall be construed as though they were also used in another gender in all cases where they would so apply.

(b)Singular and plural. Whenever any words are used herein in the singular or plural form, they shall be construed as though they were also used in the other form in all cases where they would so apply.

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9.5LEGAL ACTION

In the event any claim, suit, or proceeding is brought regarding the Trust and/or Plan established hereunder to which the Trustee, the Employer or the Administrator may be a party, and such claim, suit, or proceeding is resolved in favor of the Trustee, the Employer or the Administrator, they shall be entitled to be reimbursed from the Trust Fund for any and all costs, attorney’s fees, and other expenses pertaining thereto incurred by them for which they shall have become liable.

9.6PROHIBITION AGAINST DIVERSION OF FUNDS

(a)General rule. Except as provided below and otherwise specifically permitted by law, it shall be impossible by operation of the Plan or of the Trust, by termination of either, by power of revocation or amendment, by the happening of any contingency, by collateral arrangement or by any other means, for any part of the corpus or income of any Trust Fund maintained pursuant to the Plan or any funds contributed thereto to be used for, or diverted to, purposes other than the exclusive benefit of Participants or their Beneficiaries.

(b)Mistake of fact. In the event the Employer shall make an excessive contribution under a mistake of fact pursuant to Act Section 403(c)(2)(A), the Employer may demand repayment of such excessive contribution at any time within one (1) year following the time of payment and the Trustees shall return such amount to the Employer within the one (1) year period. Earnings of the Plan attributable to the contributions may not be returned to the Employer but any losses attributable thereto must reduce the amount so returned.

(c)Contribution conditioned on deductibility. Except as otherwise provided by a particular Plan provision, any contribution made by the Employer to the Plan is conditioned upon the deductibility of the contribution by the Employer under the Code and, to the extent any such deduction is disallowed, the Employer may, within one (1) year following the final determination of the disallowance, whether by agreement with the Internal Revenue Service or by final decision of a competent jurisdiction, demand repayment of such disallowed contribution and the Trustee shall return such contribution within one (1) year following the disallowance. Earnings of the Plan attributable to the contribution may not be returned to the Employer, but any losses attributable thereto must reduce the amount so returned.

9.7EMPLOYER’S AND TRUSTEE’S PROTECTIVE CLAUSE

The Employer, Administrator and Trustee, and their successors, shall not be responsible for the validity of any Contract issued hereunder or for the failure on the part of the insurer to make payments provided by any such Contract, or for the action of any person which may delay payment or render a Contract null and void or unenforceable in whole or in part.

9.8INSURER’S PROTECTIVE CLAUSE

Except as otherwise agreed upon in writing between the Employer and the insurer, an insurer which issues any Contracts hereunder shall not have any responsibility for the validity of this Plan or for the tax or legal aspects of this Plan. The insurer shall be protected and held

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harmless in acting in accordance with any written direction of the Trustee, and shall have no duty to see to the application of any funds paid to the Trustee, nor be required to question any actions directed by the Trustee. Regardless of any provision of this Plan, the insurer shall not be required to take or permit any action or allow any benefit or privilege contrary to the terms of any Contract which it issues hereunder, or the rules of the insurer.

9.9RECEIPT AND RELEASE FOR PAYMENTS

Any payment to any Participant, the Participant’s legal representative, Beneficiary, or to any guardian or committee appointed for such Participant or Beneficiary in accordance with the provisions of the Plan, shall, to the extent thereof, be in full satisfaction of all claims hereunder against the Trustee and the Employer.

9.10ACTION BY THE EMPLOYER

Whenever the Employer under the terms of the Plan is permitted or required to do or perform any act or matter or thing, it shall be done and performed by a person duly authorized by its legally constituted authority.

9.11NAMED FIDUCIARIES AND ALLOCATION OF RESPONSIBILITY

The named Fiduciaries of this Plan are (1) the Employer, (2) the Administrator, (3) the Trustee and (4) any Investment Manager appointed hereunder. The named Fiduciaries shall have only those specific powers, duties, responsibilities, and obligations as are specifically given them under the Plan including, but not limited to, any agreement allocating or delegating their responsibilities, the terms of which are incorporated herein by reference. In general, the Employer shall have the sole responsibility for making the contributions provided for under Section 4.1; and shall have the authority to appoint and remove the Trustee and the Administrator; to formulate the Plan’s funding policy and method; and to amend or terminate, in whole or in part, the Plan. The Administrator shall have the sole responsibility for the administration of the Plan, including, but not limited to, the items specified in Article II of the Plan, as the same may be allocated or delegated thereunder. The Administrator shall act as the named Fiduciary responsible for communicating with the Participant according to the Participant Direction Procedures. The Trustee shall have the sole responsibility of management of the assets held under the Trust, except to the extent directed pursuant to Article II or with respect to those assets, the management of which has been assigned to an Investment Manager, who shall be solely responsible for the management of the assets assigned to it, all as specifically provided in the Plan. Each named Fiduciary warrants that any directions given, information furnished, or action taken by it shall be in accordance with the provisions of the Plan, authorizing or providing for such direction, information or action. Furthermore, each named Fiduciary may rely upon any such direction, information or action of another named Fiduciary as being proper under the Plan, and is not required under the Plan to inquire into the propriety of any such direction, information or action. It is intended under the Plan that each named Fiduciary shall be responsible for the proper exercise of its own powers, duties, responsibilities and obligations under the Plan as specified or allocated herein. No named Fiduciary shall guarantee the Trust Fund in any manner against investment loss or depreciation in asset value. Any person or group may serve in more than one Fiduciary capacity.

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9.12HEADINGS

The headings and subheadings of this Plan have been inserted for convenience of reference and are to be ignored in any construction of the provisions hereof.

9.13APPROVAL BY INTERNAL REVENUE SERVICE

Notwithstanding anything herein to the contrary, if, pursuant to an application for qualification filed by or on behalf of the Plan by the time prescribed by law for filing the Employer’s return for the taxable year in which the Plan is adopted, or such later date that the Secretary of the Treasury may prescribe, the Commissioner of Internal Revenue Service or the Commissioner’s delegate should determine that the Plan does not initially qualify as a tax-exempt plan under Code Sections 401 and 501, and such determination is not contested, or if contested, is finally upheld, then if the Plan is a new plan, it shall be void ab initio and all amounts contributed to the Plan by the Employer, less expenses paid, shall be returned within one (1) year after the date the initial qualification is denied, and the Plan shall terminate, and the Trustee shall be discharged from all further obligations. If the disqualification relates to an amended plan, then the Plan shall operate as if it had not been amended.

9.14ELECTRONIC MEDIA

The Administrator may use telephonic or electronic media to satisfy any notice requirements required by this Plan, to the extent permissible under regulations (or other generally applicable guidance). In addition, a Participant’s consent to an immediate distribution may be provided through telephonic or electronic means, to the extent permissible under regulations (or other generally applicable guidance). The Administrator also may use telephonic or electronic media to conduct plan transactions such as enrolling Participants, making (and changing) deferral elections, electing (and changing) investment allocations, applying for Plan loans, and other transactions, to the extent permissible under regulations (or other generally applicable guidance).

9.15PLAN CORRECTION

The Administrator in conjunction with the Employer may undertake such correction of Plan errors as the Administrator deems necessary, including correction to preserve tax qualification of the Plan under Code Section 401(a) or to correct a fiduciary breach under the Act. Without limiting the Administrator’s authority under the prior sentence, the Administrator, as it determines to be reasonable and appropriate, may undertake correction of Plan document, operational, demographic and employer eligibility failures under a method described in the Plan or under the IRS Employee Plans Compliance Resolution System (“EPCRS”) or any successor program to EPCRS. The Administrator, as it determines to be reasonable and appropriate, also may undertake or assist the appropriate Fiduciary or Plan official in undertaking correction of a fiduciary breach, including correction under the DOL Voluntary Fiduciary Correction Program (“VFC”) or any successor program to VFC. For example, to correct an operational error, the Administrator may require the Trustee to distribute Elective Deferrals, including earnings, from the Plan where such amounts result from an operational error other than a failure of Code Section 415, Code Section 402(g), or a failure of the ADP Test or the ACP Test.

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9.16UNIFORMITY

All provisions of this Plan shall be interpreted and applied in a uniform, nondiscriminatory manner. In the event of any conflict between the terms of this Plan and any Contract purchased hereunder, the Plan provisions shall control.

ARTICLE X
PARTICIPATING EMPLOYERS

10.1ADOPTION BY OTHER EMPLOYERS

Notwithstanding anything herein to the contrary, with the consent of the Employer and Trustee, any other corporation or entity, whether an Affiliated Employer or not, may adopt this Plan and all of the provisions hereof, and participate herein and be known as a Participating Employer, by a properly executed document evidencing said intent and will of such Participating Employer.

10.2REQUIREMENTS OF PARTICIPATING EMPLOYERS

(a)Same Trustee for all. Each such Participating Employer shall be required to use the same Trustee as provided in this Plan.

(b)Holding and investing assets. The Trustee may, but shall not be required to, commingle, hold and invest as one Trust Fund all contributions made by Participating Employers, as well as all increments thereof.

(c)Payment of expenses. Unless the Employer otherwise directs, any expenses of the Plan which are to be paid by the Employer or borne by the Trust Fund shall be paid by each Participating Employer in the same proportion that the total amount standing to the credit of all Participants employed by such Employer bears to the total standing to the credit of all Participants.

10.3DESIGNATION OF AGENT

Each Participating Employer shall be deemed to be a party to this Plan; provided, however, that with respect to all of its relations with the Trustee and Administrator for the purpose of this Plan, each Participating Employer shall be deemed to have designated irrevocably the Employer as its agent. Unless the context of the Plan clearly indicates the contrary, the word “Employer” shall be deemed to include each Participating Employer as related to its adoption of the Plan.

10.4EMPLOYEE TRANSFERS

In the event an Employee is transferred between Participating Employers, accumulated service and eligibility shall be carried with the Employee involved. No such transfer shall effect a termination of employment hereunder, and the Participating Employer to which the Employee is transferred shall thereupon become obligated hereunder with respect to such Employee in the same manner as was the Participating Employer from whom the Employee was transferred.

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10.5PARTICIPATING EMPLOYER CONTRIBUTION AND FORFEITURES

Any contribution or Forfeiture subject to allocation during each Plan Year shall be allocated only among those Participants of the Employer or Participating Employers making the contribution or by which the forfeiting Participant was employed. However, if the contribution is made, or the forfeiting Participant was employed, by an Affiliated Employer, such contribution or Forfeiture shall be allocated among all Participants of all Participating Employers who are Affiliated Employers in accordance with the provisions of this Plan. On the basis of the information furnished by the Administrator, the Trustee shall keep separate books and records concerning the affairs of each Participating Employer hereunder and as to the accounts and credits of the Employees of each Participating Employer. The Trustee may, but need not, register Contracts so as to evidence that a particular Participating Employer is the interested Employer hereunder, but in the event of an Employee transfer from one Participating Employer to another, the employing Participating Employer shall immediately notify the Trustee thereof.

10.6AMENDMENT

Any Participating Employer that is an Affiliated Employer hereby authorizes the Employer to make amendments on its behalf, unless otherwise agreed among all affected parties. If a Participating Employer is not an Affiliated Employer, then amendment of this Plan by the Employer at any time when there shall be a Participating Employer shall, unless otherwise agreed to by the affected parties, only be by the written action of each and every Participating Employer and with the consent of the Trustee where such consent is necessary in accordance with the terms of this Plan.

10.7DISCONTINUANCE OF PARTICIPATION

Any Participating Employer shall be permitted to discontinue or revoke its participation in the Plan at any time. At the time of any such discontinuance or revocation, satisfactory evidence thereof and of any applicable conditions imposed shall be delivered to the Trustee. The Employer shall have the right to discontinue or revoke the participation in the Plan of any Participating Employer by providing 45 days notice to such Participating Employer. The Trustee shall thereafter transfer, deliver and assign Contracts and other Trust Fund assets allocable to the Participants of such Participating Employer to such new Trustee as shall have been designated by such Participating Employer, in the event that it has established a separate qualified retirement plan for its employees provided, however, that no such transfer shall be made if the result is the elimination or reduction of any Section 411(d)(6) protected benefits as described in Section 7.1(e). If a separate plan has not been established, at the time of such continuance or revocation for whatever reason, the assets and liabilities, Contracts and other Trust Fund assets allocable to such Participating Employer’s participation in this Plan shall be spun off pursuant to Code Section 414(l) and such spun off assets shall constitute a retirement plan of the Participating Employer with such Participating Employer becoming sponsor and the individual who has signed the Supplemental Participation Agreement on behalf of the Participating Employer becoming Trustee for this purpose. Such individual shall agree to this appointment by virtue of signing the Supplemental Participation Agreement. If such individual is no longer an Employee of the Participating Employer, then the Participating Employer shall appoint a Trustee. If no successor is designated, the Trustee shall retain such assets for the Employees of said Participating Employer pursuant to the provisions of the Trust. In no such event shall any part of the corpus or income of the Trust Fund as it relates to such Participating Employer be used for or diverted for purposes other than for the exclusive benefit of the Employees of such Participating Employer.

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10.8ADMINISTRATOR’S AUTHORITY

The Administrator shall have authority to make any and all necessary rules or regulations, binding upon all Participating Employers and all Participants, to effectuate the purpose of this Article.

10.9PROVISIONS APPLIED SEPARATELY (OR JOINTLY) FOR PARTICIPATING NON-AFFILIATED EMPLOYERS

(a)Separate status. The Plan Administrator will apply the definition of Compensation and perform the tests listed in this Section, separately for each Participating Employer other than an Affiliated Employer of such Participating Employer. For this purpose, the Employees of each Participating Employer (and its Affiliated Employers), and their allocations and accounts, shall be treated as though they were in separate plan. Any correction action, such as additional contributions or corrective distributions, shall only affect the Employees of the Participating Employer (and its Affiliated Employers, if any). The tests subject to this separate treatment are:

(1)The ADP Test.

(2)The ACP Test.

(3)Nondiscrimination testing as described in Code Section 401(a)(4) and the applicable Regulations.

(4)Coverage testing as described in Code Section 410(b) and the Regulations.

(5)Status as a Highly Compensated Employee under Section 1.42.

(b)Joint status. The following tests shall be performed for the plan as whole, without regard to employment by a particular Participating Employer:

(1)Applying the annual addition limitation in Section 4.9, including the related Compensation definition.

(2)Applying the Code Section 402(g) limitation in Section 4.2.

(3)Applying the limit on Catch-Up Contributions in Section 4.2.

10.10TOP-HEAVY APPLIED SEPARATELY FOR PARTICIPATING NON-AFFILIATED EMPLOYERS

The Plan will apply the Top-Heavy Plan provisions separately to each Participating Employer other than an Affiliated Employer of such Participating Employer. The Plan will be considered separate plans for each Participating Employer and its Employees for purposes of determining whether such a separate plan is top-heavy under Section 8.1 or is entitled to the exemption described in such Section. For purposes of applying this Article to a Participating Employer, the Participating Employer and any entity which is an Affiliated Employer to that

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Participating Employer shall be the “Employer” for purposes of Section 8.1, and the terms “Key Employee” and “Non-Key Employee” shall refer only to the Employees of that Participating Employer and/or its Affiliated Employers. If such a Participating Employer’s separate plan is top-heavy, then:

(a)Highest contribution rate. The Plan Administrator shall determine the highest Key Employee contribution rate under Section 4.4(g) by reference to the Key Employees and their allocations in the separate plan of that Participating Employer;

(b)Top-Heavy minimum allocation. The Plan Administrator shall determine the amount of any required top-heavy minimum allocation separately for that separate plan under Section 4.4(g); and

(c)Plan which will satisfy. The Participating Employer shall make any additional contributions Section 4.4(g) requires.

10.11HIGHLY COMPENSATED EMPLOYEE STATUS

Status as a Highly Compensated Employee under Section 1.44 shall be determined separately with respect to each Participating Employer (and all its Affiliated Employers).

10.12SERVICE

An Employee’s service includes all Hours of Service and Years of Service with any and all Participating Employers and their Affiliated Employers. An Employee who terminates employment with one Participating Employer and immediately commences employment with another Participating Employer has not separated from service and has not had a severance from employment.

10.13REQUIRED MINIMUM DISTRIBUTIONS

If a Participant is a 5-percent owner (under Section 6.8(e)(6)) of any Participating Employer for which the Participant is an Employee in the Plan Year the Participant attains age 70 1/2, then the Participant’s required beginning date under Section 6.8 shall be the April 1 of the calendar year following the close of the calendar year in which the Participant attains age 70 1/2.

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IN WITNESS WHEREOF, AdvancePierre Foods Inc. has executed this Plan this 15th day of 12, 2011.

AdvancePierre Foods Inc.

/s/ Paul Telenson

EMPLOYER

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EX-10.27

Exhibit 10.27

AMENDMENT ONE TO THE

ADVANCEPIERRE FOODS INC. 401(K) RETIREMENT PLAN

AdvancePierre Foods Inc. (the “Employer”) makes this Amendment, effective as of October 1, 2012.

WHEREAS, the Employer has previously established the AdvancePierre Foods Inc. 401(k) Retirement Plan (the “Plan”) for the benefit of eligible employees and their beneficiaries; and

WHEREAS, pursuant to Section 7.1 of the Plan, the Employer is authorized to amend the Plan;

NOW, THEREFORE, pursuant to Section 7.1 of the Plan, the following amendments are hereby made and shall be effective October 1, 2012:

1.Section 1.32, “Eligible Employee,” is hereby amended in its entirety to read as follows:

1.32“Eligible Employee” means any Employee, except as provided below, and except as provided in any other particular provision for the limited purposes of that provision (e.g., ADP test). The following Employees shall not be eligible to participate in this Plan:

(a)Employees of Affiliated Employers, unless such Affiliated Employers have specifically adopted this Plan in writing.

(b)An individual shall not be an Eligible Employee if such individual is not reported on the payroll records of the Employer as a common law employee. In particular, it is expressly intended that individuals not treated as common law employees by the Employer on its payroll records and out-sourced workers, are neither Employees nor Eligible Employees, and are excluded from Plan participation even if a court or administrative agency determines that such individuals are common law employees and not independent contractors. However, this paragraph shall not apply to partners or other Self-Employed Individuals unless the Employer treats them as independent contractors.

(c)Unless or until otherwise provided, Employees who became Employees as the result of a “Code Section 410(b)(6)(C) transaction” will not be Eligible Employees until the expiration of the transition period beginning on the date of the transaction and ending on the last day of the first Plan Year beginning after the date of the transaction. A Code Section 410(b)(6)(C) transaction is an asset or stock acquisition, merger, or similar transaction involving a change in the Employer of the Employees of a trade or business that is subject to the special rules set forth in Code Section 410(b)(6)(C).

(d)Employees who are Leased Employees.

(e)Employees whose employment is governed by the terms of a collective bargaining agreement between Employee representatives (within the meaning of Code Section 7701(a)(46)) and the Employer under which retirement benefits

were the subject of good faith bargaining between the parties, unless such agreement expressly provides for coverage in this Plan.

(f)Employees classified by the Employer as part-time, temporary or seasonal Employees who have not completed one (1) Period of Service.

2.Section 3.1, Conditions of Eligibility, subsection (a), Eligibility, is hereby amended in its entirety to read as follows:

(a)  Eligibility. For all Plan purposes, any Eligible Employee who has completed 30 days of Service and has attained age 18 shall be eligible to participate hereunder as of the date such Employee has satisfied such requirements.

Any Employee who is classified by the Employer as part-time, temporary or seasonal and who has completed one (1) Period of Service shall be an Eligible Employee and shall be eligible to participate hereunder as of the date such Employee has satisfied such requirements and has attained age 18.

However, any Employee who was a Participant in the Plan prior to the effective date of this amendment and restatement shall continue to participate in the Plan.

IN WITNESS WHEREOF, the Employer, has caused this instrument to be executed as of the date specified below.

		ADVANCEPIERRE FOODS INC.
Dated:	9/7/2012	By:	/s/ Bryan Hayden
		Its:	VP of People Services

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EX-10.28

Exhibit 10.28

AMENDMENT TWO TO THE

ADVANCEPIERRE FOODS INC. 401(K) RETIREMENT PLAN

AdvancePierre Foods Inc. (the “Employer”) makes this Amendment, effective as of January 1, 2014.

WHEREAS, the Employer has previously established the AdvancePierre Foods Inc. 401(k) Retirement Plan (the “Plan”) for the benefit of eligible employees and their beneficiaries; and

WHEREAS, pursuant to Section 7.1 of the Plan, the Employer is authorized to amend the Plan;

NOW, THEREFORE, pursuant to Section 7.1 of the Plan, the following amendment is hereby made and shall be effective for Plan Years beginning on or after January 1, 2014:

1.Section 1.20, “Compensation”, is hereby amended in its entirety to read as follows:

1.20“Compensation” means, with respect to any Participant and except as otherwise provided herein, such Participant’s wages as defined in Code Section 3401(a) and all other payments of compensation by the Employer (in the course of the Employer’s trade or business) for a Plan Year (the “determination period”) for which the Employer is required to furnish the Participant a written statement under Code Sections 6041(d), 6051(a)(3) and 6052 (Form W-2 wages). Compensation must be determined without regard to any rules under Code Section 3401(a) that limit the remuneration included in wages based on the nature or location of the employment or the services performed (such as the exception for agricultural labor in Code Section 3401(a)(2)). Compensation for any Self-Employed Individual shall be equal to such individual’s Earned Income.

For purposes of this Section, the determination of Compensation shall be made by:

(a)  excluding (even if includible in gross income) reimbursements or other expense allowances, fringe benefits (cash or noncash), moving expenses, deferred compensation (equity and non equity), welfare benefits.

(b)  including amounts which are contributed by the Employer pursuant to a salary reduction agreement and which are not includible in the gross income of the Participant under Code Sections 125, 132(f)(4), 402(e)(3), 402(h)(1)(B), 403(b) or 457(b), and employee contributions described in Code Section 414(h)(2) that are treated as Employer contributions. For this purpose, amounts not includible in gross income under Code Section 125 shall be deemed to include any amounts not available to a Participant in cash in lieu of group health coverage because the Participant is unable to certify that the Participant has other health coverage, provided the Employer does not request or collect information regarding the Participant’s other health coverage as part of the enrollment process for the health plan.

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(c)  excluding pre-participation Compensation paid during the Plan Year while not a Participant in the component of the Plan for which Compensation is being used.

(d)  excluding Post-Severance Compensation for purposes of Elective Deferrals and Matching Contributions.

Compensation in excess of $200,000 (or such other amount provided in the Code) shall be disregarded for all purposes other than for purposes of salary deferral elections pursuant to Section 4.2. Such amount shall be adjusted for increases in the cost-of-living in accordance with Code Section 401(a)(17)(B), except that the dollar increase in effect on January 1 of any calendar year shall be effective for the Plan Year beginning with or within such calendar year. For any “determination period” of less than twelve (12) months, the Compensation limit shall be an amount equal to the Compensation limit for the calendar year in which the “determination period” begins multiplied by the ratio obtained by dividing the number of full months in the short “determination period” by twelve (12), A “determination period” is not less than twelve (12) months solely because a Participant’s Compensation does not include Compensation paid during a “determination period” while the Participant was not a Participant in the Plan (or a component of the Plan).

If any Employees are excluded from the Plan (or from any component of the Plan), then Compensation for any such Employees who become eligible or cease to be eligible to participate in the Plan (or in the component of the Plan) during a Plan Year shall only include Compensation while such Employees are Eligible Employees of the Plan (or of such component of the Plan).

For purposes of this Section, if the Plan is a plan described in Code Section 413(c) or 414(f) (a plan maintained by more than one Employer), the limitation applies separately with respect to the Compensation of any Participant from each Employer maintaining the Plan.

If, in connection with the adoption of any amendment, the definition of Compensation has been modified, then, except as otherwise provided herein, for Plan Years prior to the Plan Year which includes the adoption date of such amendment, Compensation means compensation determined pursuant to the terms of the Plan then in effect.

2.Effective January 1, 2014, the paragraph of Section 4.2(a) titled “Deferral elections of bonuses” is amended in its entirety to read as follows:

Deferral elections of bonuses. Additionally, each Participant may elect to defer up to 100% of any cash bonus to be paid by the Employer during the Plan Year. A deferral election may not be made with respect to cash bonuses that are currently available on or before the date the Participant executes such deferral election. However, if an opportunity to make a deferral election is given to a Participant with respect to a cash bonus but such Participant fails to make such a deferral election, then the

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Participant’s bonus shall not be subject to the deferral election in effect on the day before the day that such a Participant’s bonus becomes currently available. For purposes of this paragraph, a cash bonus shall include only a bonus under a management incentive or sales incentive plan.

IN WITNESS WHEREOF, the Employer has caused this instrument to be executed as of the date specified below.

		ADVANCEPIERRE FOOD INC.
Dated:	12/23/2013	By:	/s/ Charles J. Aardema
		Its:	SVP Human Resources

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