Common use of OID Clause in Contracts

OID. Each of the Borrower and each Lender agrees that on the Borrowing date of each Loan other than the Refinancing Loans and the Third Amendment NM Loans, the Borrower shall receive proceeds of such Loans based on a purchase price of 98.00% of the principal amount thereof. Each of the Borrower and each Lender agrees that on the Borrowing date of each Third Amendment NM Loan, the Borrower shall receive proceeds of such Loans based on a purchase price of 85.00% of the principal amount thereof (it being understood that if the Third Amendment Final Order is not entered, the Third Amendment NM Loan First Tranche Amount shall be deemed to have been issued at a purchase price of 98.00% of the principal amount thereof). For the avoidance of doubt, on each such Borrowing date each Lender shall advance to the Borrower an amount equal to 98.00% or 85.00%, as the case may be, of its ratable share of the applicable Loans, other than the Refinancing Loans, requested by the Borrower as of such date in exchange for the Borrower’s obligations to repay in full the face amount of such Loans (subject to Sections 3.04(c)(vi) and (vii)), plus interest accrued thereon in accordance with the terms hereof.” (o) Section 6.02 of the Credit Agreement is hereby amended by (i) deleting the text “and” at the end of clause (c) contained therein, (ii) deleting the period at the end of clause (d) contained therein and substituting in lieu thereof the text “; and”, and (iii) adding the following new clause (e): “(e) as of any Borrowing date with respect to any Third Amendment NM Loans Tranche Amount (other than the Third Amendment NM Loans First Tranche Amount), the Third Amendment Final Order shall be in full force and effect and shall not have been reversed, modified or amended in any respect and the Borrower shall be in compliance in all respects with the Third Amendment Final Order. If the Third Amendment Final Order is the subject of a pending appeal in any respect, none of the Third Amendment Final Order, the making of the Loans or the performance by any Credit Party of any of its obligations under any of the Loan Documents shall be the subject of a presently effective stay pending appeal.” (p) Section 6.02 of the Credit Agreement is hereby further amended by adding the following paragraph after the new clause (e): “Notwithstanding the foregoing, if the Lenders’ Consultant reasonably determines that the projected timeline to complete the Clipper Project and other operational projects set forth in the DIP Budget will (A) take at least an additional two weeks or longer and/or (B) cost more (subject to agreed variances), in either case than the Borrower had projected in the approved DIP Budget or Clipper Project Budget, the Administrative Agent shall promptly notify the CRO of such determination. If the CRO disputes such determination, he shall so notify the Administrative Agent within three Business Days after the CRO’s receipt of notice of the Lenders’ Consultant’s determination, which notice shall be accompanied by (x) reasonable detail as to the basis for the CRO’s disagreement with such determination and (y) a certification from the CRO that the projected timeline to complete such projects will not take more than an additional two weeks and will not cost more (subject to agreed variances), in each case than the Borrower had projected in the approved applicable Budget. If the CRO fails to timely deliver such notice and certification and either (1) the Borrower fails to present a plan to the Required Lenders to remedy such loss or increased costs within five Business Days of receipt by the CRO of notice from the Administrative Agent of the Lenders’ Consultant’s determination or (2) the Borrower presents a plan in such five Business Day period, but the Required Lenders do not approve such plan (as such plan may be modified by agreement among the Borrower and the Required Lenders) within the following five Business Days, no further advances of Loans shall be available to the Borrower unless approved by the Required Lenders in their sole discretion.” (q) Section 7.21 of the Credit Agreement is hereby amended by adding the following new clause (f) after clause (e) contained therein:

OID. Each Borrower, Agent and each Purchaser agree (i) that the Notes are debt for federal income Tax purposes, (ii) that the Notes issued to each Purchaser constitute a single debt instrument for purposes of Sections 1271 through 1275 of the Borrower and each Lender agrees that on the Borrowing date of each Loan other than the Refinancing Loans U.S. Internal Revenue Code and the Third Amendment NM Loans, the Borrower shall receive proceeds of such Loans based on a purchase price of 98.00% of the principal amount thereof. Each of the Borrower and each Lender agrees that on the Borrowing date of each Third Amendment NM Loan, the Borrower shall receive proceeds of such Loans based on a purchase price of 85.00% of the principal amount thereof Treasury Regulations thereunder (it being understood that if the Third Amendment Final Order is not entered, the Third Amendment NM Loan First Tranche Amount shall be deemed pursuant to have been issued at a purchase price of 98.00% of the principal amount thereof). For the avoidance of doubt, on each such Borrowing date each Lender shall advance to the Borrower an amount equal to 98.00% or 85.00%, as the case may be, of its ratable share of the applicable Loans, other than the Refinancing Loans, requested by the Borrower as of such date in exchange for the Borrower’s obligations to repay in full the face amount of such Loans (subject to Sections 3.04(c)(vi) and (viiTreasury Regulations Section 1.1275-2(c)), plus interest accrued thereon that such debt instrument is issued with original issue discount (“OID”), and that such debt instrument is described in Treasury Regulations Section 1.1272-1(c)(2) and therefore is governed by the rules set out in Treasury Regulations Section 1.1272-1(c), including Section 1.1272-1(c)(5), and is not governed by the rules set out in Treasury Regulations Section 1.1275-4, (iii) that any calculation by Borrower regarding the amount of OID for any accrual period on the Notes shall be subject to the review and approval of each respective Purchaser, not to be unreasonably withheld, and (iv) to adhere to this Agreement for federal income Tax purposes and not to take any action or file any Tax return, report or declaration inconsistent herewith (including with respect to the amount of OID on the Notes as determined in accordance with the terms hereof.” (opreceding Section 2.1.5(f)(iii). The inclusion of this Section 2.1.5(f) Section 6.02 is not an admission by any Purchaser that it is subject to United States Taxation. In connection with the purchase of the Credit Agreement is hereby amended by (i) deleting Original Notes, Original Purchaser received the text Original Warrants. In the event the Original Notes and such Original Warrants are considered the issuance of an “andinvestment unit” at the end of clause (c) contained therein, (ii) deleting the period at the end of clause (d) contained therein and substituting in lieu thereof the text “; and”, and (iii) adding the following new clause (e): “(e) as of any Borrowing date with respect to any Third Amendment NM Loans Tranche Amount (other than the Third Amendment NM Loans First Tranche Amountunder Code Section 1273(c)(2), the Third Amendment Final Order shall be parties previously agreed that the fair market value of the Original Warrants is $377,661 and $34,414, respectively, for purposes of investment unit allocation under Code Section 1273(c)(2). Borrower and Original Purchaser previously agreed to report in a manner that is consistent with this allocation for all Tax purposes and such agreement remains in full force and effect and shall not have been reversedas of the Restatement Date. In connection with the purchase of the Additional Note at the Initial Additional Takedown, modified or amended in any respect Plexus is receiving the Initial Plexus Warrant. In the event such Additional Note and the Initial Plexus Warrant are considered the issuance of an “investment unit” under Code Section 1273(c)(2), the parties agree that the fair market value of the Initial Plexus Warrants is $515,793 for purposes of investment unit allocation under Code Section 1273(c)(2). Borrower and Plexus agree to report in a manner that is consistent with this allocation for all Tax purposes. In connection with the purchase of Additional Notes at Additional Takedowns or Automatic Takedowns, if any, Plexus will receive Additional Warrants. In the event such Additional Notes and the Additional Warrants are considered the issuance of an “investment unit” under Code Section 1273(c)(2), the parties agree, for purposes of investment unit allocation under Code Section 1273(c)(2), to calculate the fair market value of such Additional Warrants in the same manner as the Initial Plexus Warrant, which final calculation shall be mutually agreed upon by Plexus and Borrower. Borrower and Plexus agree to report in compliance in all respects with the Third Amendment Final Order. If the Third Amendment Final Order a manner that is the subject of a pending appeal in any respect, none of the Third Amendment Final Order, the making of the Loans or the performance by any Credit Party of any of its obligations under any of the Loan Documents shall be the subject of a presently effective stay pending appeal.” (p) Section 6.02 of the Credit Agreement is hereby further amended by adding the following paragraph after the new clause (e): “Notwithstanding the foregoing, if the Lenders’ Consultant reasonably determines that the projected timeline to complete the Clipper Project and other operational projects set forth in the DIP Budget will (A) take at least an additional two weeks or longer and/or (B) cost more (subject to agreed variances), in either case than the Borrower had projected in the approved DIP Budget or Clipper Project Budget, the Administrative Agent shall promptly notify the CRO of such determination. If the CRO disputes such determination, he shall so notify the Administrative Agent within three Business Days after the CRO’s receipt of notice of the Lenders’ Consultant’s determination, which notice shall be accompanied by (x) reasonable detail as to the basis for the CRO’s disagreement consistent with such determination and (y) a certification from the CRO that the projected timeline to complete such projects will not take more than an additional two weeks and will not cost more (subject to agreed variances), in each case than the Borrower had projected in the approved applicable Budget. If the CRO fails to timely deliver such notice and certification and either (1) the Borrower fails to present a plan to the Required Lenders to remedy such loss or increased costs within five Business Days of receipt by the CRO of notice from the Administrative Agent of the Lenders’ Consultant’s determination or (2) the Borrower presents a plan in such five Business Day period, but the Required Lenders do not approve such plan (as such plan may be modified by agreement among the Borrower and the Required Lenders) within the following five Business Days, no further advances of Loans shall be available to the Borrower unless approved by the Required Lenders in their sole discretionallocation for all Tax purposes.” (q) Section 7.21 of the Credit Agreement is hereby amended by adding the following new clause (f) after clause (e) contained therein:

OID. Each Borrower, Agent and each Purchaser agree (i) that the Notes are debt for federal income Tax purposes, (ii) that the Notes issued to each Purchaser constitute a single debt instrument for purposes of Sections 1271 through 1275 of the Borrower and each Lender agrees that on the Borrowing date of each Loan other than the Refinancing Loans U.S. Internal Revenue Code and the Third Amendment NM Loans, the Borrower shall receive proceeds of such Loans based on a purchase price of 98.00% of the principal amount thereof. Each of the Borrower and each Lender agrees that on the Borrowing date of each Third Amendment NM Loan, the Borrower shall receive proceeds of such Loans based on a purchase price of 85.00% of the principal amount thereof Treasury Regulations thereunder (it being understood that if the Third Amendment Final Order is not entered, the Third Amendment NM Loan First Tranche Amount shall be deemed pursuant to have been issued at a purchase price of 98.00% of the principal amount thereof). For the avoidance of doubt, on each such Borrowing date each Lender shall advance to the Borrower an amount equal to 98.00% or 85.00%, as the case may be, of its ratable share of the applicable Loans, other than the Refinancing Loans, requested by the Borrower as of such date in exchange for the Borrower’s obligations to repay in full the face amount of such Loans (subject to Sections 3.04(c)(vi) and (viiTreasury Regulations Section 1.1275-2(c)), plus interest accrued thereon that such debt instrument is issued with original issue discount (“OID”), and that such debt instrument is described in Treasury Regulations Section 1.1272-1(c)(2) and therefore is governed by the rules set out in Treasury Regulations Section 1.1272-1(c), including Section 1.1272-1(c)(5), and is not governed by the rules set out in Treasury Regulations Section 1.1275-4, (iii) that any calculation by Borrower regarding the amount of OID for any accrual period on the Notes shall be subject to the review and approval of each respective Purchaser, not to be unreasonably withheld, and (iv) to adhere to this Agreement for federal income Tax purposes and not to take any action or file any Tax return, report or declaration inconsistent herewith (including with respect to the amount of OID on the Notes as determined in accordance with the terms hereof.” (opreceding Section 2.1.5(f)(iii). The inclusion of this Section 2.1.5(f) Section 6.02 is not an admission by any Purchaser that it is subject to United States Taxation. In connection with the purchase of the Credit Agreement Restatement Notes, BNY is hereby amended by (i) deleting receiving the text Initial BNY Warrant, BIA is receiving the Additional BIA Warrant and Plexus is receiving the Additional Plexus Warrant. In the event such Restatement Notes, the Restatement Warrants are considered the issuance of an “andinvestment unit” at the end of clause (c) contained therein, (ii) deleting the period at the end of clause (d) contained therein and substituting in lieu thereof the text “; and”, and (iii) adding the following new clause (e): “(e) as of any Borrowing date with respect to any Third Amendment NM Loans Tranche Amount (other than the Third Amendment NM Loans First Tranche Amountunder Code Section 1273(c)(2), the Third Amendment Final Order parties agree that the fair market value of the Restatement Warrants is $1,164,327.72 for purposes of investment unit allocation under Code Section 1273(c)(2). Borrower, BNY, BIA and Plexus agree to report in a manner that is consistent with this allocation for all Tax purposes. In connection with the purchase of Additional Notes at Additional Takedowns, if any, Plexus and BNY will receive Additional Warrants. In the event such Additional Notes and the Additional Warrants are considered the issuance of an “investment unit” under Code Section 1273(c)(2), the parties agree, for purposes of investment unit allocation under Code Section 1273(c)(2), to calculate the fair market value of such Additional Warrants in the same manner as the Original Warrants, which final calculation shall be mutually agreed upon by Plexus, BNY and Borrower. Borrower, Plexus and BNY agree to report in full force and effect and shall not have been reversed, modified or amended in any respect and the Borrower shall be in compliance in all respects with the Third Amendment Final Order. If the Third Amendment Final Order a manner that is the subject of a pending appeal in any respect, none of the Third Amendment Final Order, the making of the Loans or the performance by any Credit Party of any of its obligations under any of the Loan Documents shall be the subject of a presently effective stay pending appeal.” (p) Section 6.02 of the Credit Agreement is hereby further amended by adding the following paragraph after the new clause (e): “Notwithstanding the foregoing, if the Lenders’ Consultant reasonably determines that the projected timeline to complete the Clipper Project and other operational projects set forth in the DIP Budget will (A) take at least an additional two weeks or longer and/or (B) cost more (subject to agreed variances), in either case than the Borrower had projected in the approved DIP Budget or Clipper Project Budget, the Administrative Agent shall promptly notify the CRO of such determination. If the CRO disputes such determination, he shall so notify the Administrative Agent within three Business Days after the CRO’s receipt of notice of the Lenders’ Consultant’s determination, which notice shall be accompanied by (x) reasonable detail as to the basis for the CRO’s disagreement consistent with such determination and (y) a certification from the CRO that the projected timeline to complete such projects will not take more than an additional two weeks and will not cost more (subject to agreed variances), in each case than the Borrower had projected in the approved applicable Budget. If the CRO fails to timely deliver such notice and certification and either (1) the Borrower fails to present a plan to the Required Lenders to remedy such loss or increased costs within five Business Days of receipt by the CRO of notice from the Administrative Agent of the Lenders’ Consultant’s determination or (2) the Borrower presents a plan in such five Business Day period, but the Required Lenders do not approve such plan (as such plan may be modified by agreement among the Borrower and the Required Lenders) within the following five Business Days, no further advances of Loans shall be available to the Borrower unless approved by the Required Lenders in their sole discretionallocation for all Tax purposes.” (q) Section 7.21 of the Credit Agreement is hereby amended by adding the following new clause (f) after clause (e) contained therein:

OID. Each Borrower and Purchaser agree (i) that the Notes are debt for federal income Tax purposes, (ii) that the Notes issued to Purchaser constitute a single debt instrument for purposes of Sections 1271 through 1275 of the Borrower and each Lender agrees that on the Borrowing date of each Loan other than the Refinancing Loans U.S. Internal Revenue Code and the Third Amendment NM Loans, the Borrower shall receive proceeds of such Loans based on a purchase price of 98.00% of the principal amount thereof. Each of the Borrower and each Lender agrees that on the Borrowing date of each Third Amendment NM Loan, the Borrower shall receive proceeds of such Loans based on a purchase price of 85.00% of the principal amount thereof Treasury Regulations thereunder (it being understood that if the Third Amendment Final Order is not entered, the Third Amendment NM Loan First Tranche Amount shall be deemed pursuant to have been issued at a purchase price of 98.00% of the principal amount thereof). For the avoidance of doubt, on each such Borrowing date each Lender shall advance to the Borrower an amount equal to 98.00% or 85.00%, as the case may be, of its ratable share of the applicable Loans, other than the Refinancing Loans, requested by the Borrower as of such date in exchange for the Borrower’s obligations to repay in full the face amount of such Loans (subject to Sections 3.04(c)(vi) and (viiTreasury Regulations Section 1.1275-2(c)), plus interest accrued thereon that such debt instrument is issued with original issue discount (“OID”), and that such debt instrument is described in Treasury Regulations Section 1.1272-1(c)(2) and therefore is governed by the rules set out in Treasury Regulations Section 1.1272-1(c), including Section 1.1272-1(c)(5), and is not governed by the rules set out in Treasury Regulations Section 1.1275-4, (iii) that any calculation by Borrower regarding the amount of OID for any accrual period on the Notes shall be subject to the review and approval of Purchaser, not to be unreasonably withheld, and (iv) to adhere to this Agreement for federal income Tax purposes and not to take any action or file any Tax return, report or declaration inconsistent herewith (including with respect to the amount of OID on the Notes as determined in accordance with the terms hereof.” (opreceding Section 2.1.5(f)(iii). The inclusion of this Section 2.1.5(f) is not an admission by any Purchaser that it is subject to United States Taxation. In connection with the Note purchase, Purchaser is receiving a Warrant. In the event the Note and the Warrant are considered the issuance of an “investment unit” under Code Section 6.02 of the Credit Agreement is hereby amended by (i) deleting the text “and” at the end of clause (c) contained therein, (ii) deleting the period at the end of clause (d) contained therein and substituting in lieu thereof the text “; and”, and (iii) adding the following new clause (e): “(e) as of any Borrowing date with respect to any Third Amendment NM Loans Tranche Amount (other than the Third Amendment NM Loans First Tranche Amount1273(c)(2), the Third Amendment Final Order parties agree that the fair market value of the Warrant shall be in full force and effect and shall not have been reversed, modified or amended in any respect and the Borrower shall be in compliance in all respects with the Third Amendment Final Order$377,661 for purposes of investment unit allocation under Code Section 1273(c)(2). If the Third Amendment Final Order is the subject of a pending appeal in any respect, none of the Third Amendment Final Order, the making of the Loans or the performance by any Credit Party of any of its obligations under any of the Loan Documents shall be the subject of a presently effective stay pending appeal.” (p) Section 6.02 of the Credit Agreement is hereby further amended by adding the following paragraph after the new clause (e): “Notwithstanding the foregoing, if the Lenders’ Consultant reasonably determines that the projected timeline to complete the Clipper Project and other operational projects set forth in the DIP Budget will (A) take at least an additional two weeks or longer and/or (B) cost more (subject to agreed variances), in either case than the Borrower had projected in the approved DIP Budget or Clipper Project Budget, the Administrative Agent shall promptly notify the CRO of such determination. If the CRO disputes such determination, he shall so notify the Administrative Agent within three Business Days after the CRO’s receipt of notice of the Lenders’ Consultant’s determination, which notice shall be accompanied by (x) reasonable detail as to the basis for the CRO’s disagreement with such determination and (y) a certification from the CRO that the projected timeline to complete such projects will not take more than an additional two weeks and will not cost more (subject to agreed variances), in each case than the Borrower had projected in the approved applicable Budget. If the CRO fails to timely deliver such notice and certification and either (1) the Borrower fails to present a plan to the Required Lenders to remedy such loss or increased costs within five Business Days of receipt by the CRO of notice from the Administrative Agent of the Lenders’ Consultant’s determination or (2) the Borrower presents a plan in such five Business Day period, but the Required Lenders do not approve such plan (as such plan may be modified by agreement among the Borrower and the Required Lenders) within the following five Business Days, no further advances of Loans shall be available Purchasers agree to the Borrower unless approved by the Required Lenders report in their sole discretiona manner that is consistent with this allocation for all Tax purposes.” (q) Section 7.21 of the Credit Agreement is hereby amended by adding the following new clause (f) after clause (e) contained therein: