Commitment Letter

Subject to customary exceptions regarding excluded assets to be mutually agreed (“Excluded Assets”), the Note will be secured by (a) a first priority perfected security interest in all of the Note Priority Collateral (as defined below), and (b) a second priority perfected security interest in all of the Exit First Lien Priority Collateral (as defined below) (collectively, the “Collateral”). For the avoidance of doubt, the Collateral shall not include any Excluded Assets.

“Exit First Lien Priority Collateral” means all present and after-acquired tangible and intangible assets of the Issuer and its subsidiaries other than Note Priority Collateral and Excluded Assets. Without limiting the foregoing, Exit First Lien Priority Collateral shall include all accounts, payment intangibles, inventory, tax refunds, cash, deposit accounts and securities accounts (other than any deposit account or securities account (or amounts on deposit therein) established solely to hold identified proceeds of Note Priority Collateral), commodities accounts, insurance proceeds related to assets included in the borrowing base under the Exit First Lien Credit Facility (as defined below), insurance policies covering the Exit First Lien Priority Collateral and the proceeds thereof, business interruption insurance proceeds, investment property (excluding the Pledged Equity (as defined below)), general intangibles, chattel paper, documents, supporting obligations, equipment consisting of accounting systems and related computer hardware, software, programs, peripherals, and other similar items related thereto, intellectual property (solely to the extent constituting customer lists, credit files, computer files, programs, printouts, and other computer materials and records related to other Exit First Lien Priority Collateral) and books and records related to the foregoing and, in each case, proceeds thereof.

“Note Priority Collateral” means all tangible and intangible assets of the Issuer and its subsidiaries consisting of real property, fixtures, equipment, intellectual property (excluding equipment and intellectual property constituting Exit First Lien Priority Collateral), all equity interests in the Issuer and its subsidiaries (the “Pledged Equity”), all books and records relating to the foregoing and all proceeds of the foregoing, but excluding Excluded Assets.

“Exit First Lien Credit Facility” means the senior secured asset-based credit facility to be entered into by the Company, as borrower, JPMorgan Chase Bank, N.A., as administrative agent (in such capacity, the “Exit First Lien Agent”), and the lenders party thereto (the “Exit First Lien Lenders” and together with the Exit First Lien Agent and the other secured parties under the Exit First Lien Credit Facility, the “Exit First Lien Secured Parties”).

Note to be subordinated to the security interests (other than security interests in the Note Priority Collateral or the proceeds thereof), rights and remedies of, and the obligations owing to, the Exit First Lien Secured Parties under the Exit First Lien Credit Facility, to be memorialized in an intercreditor and subordination agreement (the “Subordination Agreement”)² which:

§     Shall provide that, until the Exit First Lien Secured Parties are paid in full and the Exit First Lien Credit Facility has been terminated, the Investor will not contest, interfere or delay the enforcement of the liens securing the Exit First Lien Credit Facility (other than, subject to the Note Priority Collateral Standstill, in connection with an enforcement action with respect to any Note Priority Collateral and the proceeds thereof) or the repayment of the obligations outstanding thereunder and that the Exit First Lien Secured Parties shall not be subject to any standstill period with respect to the enforcement of their liens;

§     Shall contain subordination provisions with respect to payments under the Note (including of principal and cash interest), including that (i) if Investor receives notice from the Exit First Lien Lenders certifying to the existence of an event of default under the Exit First Lien Credit Facility or that the “Payment Conditions” set forth in such facility have not been satisfied, Investor will not accept payments from the Company (other than PIK interest and the payments of costs and expenses required to be reimbursed by the Company subject to a cap to be agreed, which shall not be blocked) until such event of default is cured or the “Payment Conditions” can be satisfied with respect to such payment and (ii) in the event Investor receives any payment in respect of the Note not permitted under the Subordination Agreement (regardless of whether any notice from the Exit First Lien Lenders or the Exit First Lien Agent had been delivered at the time of receipt), such payment shall be turned over to the First Lien Agent for application to the obligations under the Exit First Lien Credit Facility;

§     Shall set forth the lien priority, relative rights and other creditors’ rights issues in respect of the collateral securing the Note and the collateral securing the Exit First Lien Credit Facility;

§     Shall not restrict the Investor’s ability to exercise any and all legal and/or equitable remedies, including commencing suit in the event there is a breach or a default under the Note; provided that (i) no such actions shall hinder, delay or interfere with the First Lien Agent’s exercise of remedies against the Exit First Lien Priority Collateral or otherwise be inconsistent with the terms of the Subordination Agreement, and (ii) in no event shall Investor take any action to (x) enforce against any Exit First Lien Priority Collateral prior to the indefeasible payment in full of all obligations under the Exit First Lien Credit Facility or (y) take any action to enforce against the Note Priority Collateral at any time prior to the date that is 30 days following the First Lien Agent’s receipt of written notice from Investor that an event of default exists under the Note and it intends to commence an enforcement action against the Note Priority Collateral (the “Note Priority Collateral Standstill”); provided that (I) the First Lien Agent shall be granted a royalty-free license to use all intellectual property of the Borrower and its subsidiaries in connection with any enforcement actions until all Exit First Lien Priority Collateral has been liquidated and any transfer or disposition of intellectual property by Investor prior to the liquidation of all Exit First Lien Priority Collateral shall be subject to such license and (II) the First Lien Agent shall have a customary access and use period of 180 days with respect to any Note Priority Collateral necessary to the liquidation of Exit First Lien Priority Collateral or consisting of real property where any Exit First Lien Priority Collateral is located;

§     Shall include a restriction on amendments to the Exit First Lien Credit Facility without the consent of the Investor which would (i) increase the commitments under the Exit First Lien Credit Facility beyond $150,000,000, (ii) increase the highest applicable interest rate margin in the pricing grid in the Exit First Lien Credit Facility as in effect on the closing date, add a premium, or increase or add any recurring fees, charges, or premiums by more than 4.00% in the aggregate above those in effect on the closing date (excluding (w) changes in underlying reference rates, (x) any increase in the applicable margin in respect of interest accruing at the default rate following the occurrence of an event of default, (y) one-time, non-recurring fees in connection with an amendment or waiver or similar agreement or customary one-time fees in connection with any extension of additional financing under the Exit First Lien Credit Facility (including any DIP financing provided by the Exit First Lien Secured Parties) and (z) any amounts paid only to the First Lien Agent in its capacity as administrative agent or lead arranger), (iii) extend the final senior maturity date to a date after the maturity date of the Note, or (iv) change the availability or borrowing-base related definitions and other definitions to be agreed if such change would result in an increase in the amount available to borrowed under the Exit First Lien Credit Facility or eliminate reserves in effect on the closing date or change the methodology for calculating such reserves (provided that, the foregoing will not prohibit or be construed to limit the right of the First Lien Agent to (A) eliminate, reduce, or otherwise change any reserves in accordance with the terms of the Exit First Lien Credit Facility as in effect on the closing date, so long as any elimination or reduction of reserves of a type that were in existence on the closing date are based on changes to the facts and circumstances giving rise thereto subsequent to such date, including as may be evidenced in updated collateral due diligence or the result of mathematical calculations or (B) implement changes to net orderly liquidation value percentages based on updated collateral due diligence);

§     Shall include a restriction on amendments to the Note without the consent of the First Lien Agent which would (i) provide for additional covenants or events of default or make more restrictive any existing covenants or events of default unless substantially identical changes to the Exit First Lien Credit Facility are made contemporaneously with making any such changes to the Note, in which case, no consent of the First Lien Agent shall be required, (ii) shorten the maturity of the obligations under the Note to a date earlier than the date that is 91 days following the maturity of the Exit First Lien Credit Facility, or (iii) add or make more restrictive any mandatory prepayment, redemption, repurchase, sinking fund or similar requirement;

§     Shall provide that in any insolvency proceeding of the Company, (i) the Investor shall not propose, support or consent to any debtor-in-possession financing for, or consent to any use of cash collateral by, the Company, in each case, that was not proposed, supported or consented to by the Exit First Lien Secured Parties and (ii) shall not vote in favor of any plan of reorganization that either (A) is not supported by the Exit First Lien Secured Parties or (B) does not provide for the indefeasible payment in full in cash of all obligations under the Exit First Lien Credit Facility;

§     Shall include a buyout option permitting the Investor to purchase all outstanding principal (at par) and accrued and unpaid interest due under the Exit First Lien Credit Facility in full (and in connection therewith Investor shall cash collateralize all outstanding letters of credit and other secured obligations under the Exit First Lien Credit Facility) upon (i) the existence of a payment event of default under the Exit First Lien Credit Facility that has not been cured (or waived by the Exit First Lien Lenders) for a period of 60 days, (ii) the maturity of the Exit First Lien Credit Facility has been accelerated based on an event of default thereunder, (iii) First Lien Agent has commenced or notified Investor that it intends to commence the exercise of any rights or remedies with respect to a material portion of the collateral, (iv) an insolvency proceeding of the Company, or (v) First Lien Agent has commenced or notified Investor that it intends to commence a sale or disposition of the Company or a material portion of the Collateral pursuant to Section 363 of the Bankruptcy Code;

§      Notwithstanding anything to the contrary set forth herein, if Investor exercises remedies or enforces its liens and rights and remedies against the Note Priority Collateral following the Note Priority Collateral Standstill and otherwise in compliance with the provisions of the Subordination Agreement, the proceeds of any such enforcement action may be applied by Investor to the obligations under the Note;

§     If Investor or any Exit First Lien Secured Party is required in any insolvency proceeding of the Company, or otherwise, to turn over or otherwise pay to the estate of Company any amount previously received in respect of obligations under the Note or the Exit First Lien Credit Facility, as applicable, then such Investor or Exit First Lien Secured Party, as applicable, shall be entitled to a reinstatement of the obligations under the Note or the Exit First Lien Credit Facility, as applicable, with respect to all such recovered amounts. and

§     Shall otherwise be in form and substance satisfactory to the Investor, the Exit First Lien Agent, the Official Committee of Equity Holders, the Backstop Parties and the Company.

Completion of documentation customary for note issuances of this type, including a purchase agreement, etc.; satisfaction of closing conditions which are customary for note issuances of this type; the Company’s support and timely implementation of a plan of reorganization satisfactory to the Investor; such plan (including the backstop commitment described in the Backstop Commitment Agreement) being confirmed via final order and becoming effective; all conditions and other terms in the Backstop Commitment Letter and Backstop Commitment Agreement are satisfied in a manner satisfactory to Investor; and full reimbursement of fees and expenses of Investor.

Conditions precedent to be consistent with those set forth in the JPMorgan Commitment Letter dated November 2, 2020.

Usual and customary for transactions of this type, including without limitation:

§     Cross-payment default at maturity of the Exit First Lien Credit Facility and cross-acceleration to the Exit First Lien Credit Facility, subject to Subordination Agreement, and cross-default to other material debt;

§     Failure to make interest and principal payments when due;

§     Failure to pay Investor’s reasonable professional fees and expenses;

§     Failure to repay in full upon maturity or pursuant to a mandatory prepayment requirement (subject to such payment being permitted under the Subordination Agreement);

§     Breach of certain affirmative covenants, subject to cure period, breach of negative covenants without a cure period;

§     Payment of cash dividends or repurchases of stock by the Company;

§     Issuance of any indebtedness senior to the Note (other than indebtedness incurred or commitments permitted to be incurred under the Exit First Lien Credit Facility in an aggregate principal amount not to exceed $150,000,000);

§     Sale or disposition of all or substantially all of the Company’s assets, unless the proceeds of the sale are sufficient to prepay, and applied to the prepayment in full of, the Note;

§     Bankruptcy or insolvency of the Company; and

§     Other Events of Default customary for note issuances of this type.

Investor shall be entitled to a break-up fee as set forth in the commitment letter.

Payment of Investor’s reasonable professional fees and expenses. No closing or other fees will be charged by the Investor.