Exhibit 10.8


 


Execution Version


 


LOAN AND SECURITY AGREEMENT


 


by and among


 


DIRECT DIGITAL HOLDINGS,
LLC. AND THE OTHER BORROWER ENTITIES





IDENTIFIED HEREIN


 


as Borrower


 


 


THE SEVERAL FINANCIAL
INSTITUTIONS OR ENTITIES FROM TIME TO TIME





PARTIES HERETO


 


as Lenders


 


 


and


 


 


SILVERPEAK CREDIT PARTNERS,
LP


 


as Agent


 


 


Dated as of September 30,
2020


 






     


     


    

 


TABLE OF CONTENTS


 


	SECTION 1. DEFINITIONS AND RULES OF CONSTRUCTION	1
	 	 	 
	SECTION 2. THE LOAN	19
	 	 	 
	SECTION 3. SECURITY INTEREST	26
	 	 	 
	SECTION 4. CONDITIONS PRECEDENT TO LOAN	28
	 	 	 
	SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE BORROWER	31
	 	 	 
	SECTION 6. INSURANCE; INDEMNIFICATION	36
	 	 	 
	SECTION 7. AFFIRMATIVE COVENANTS OF THE BORROWER	38
	 	 	 
	SECTION 8. NEGATIVE COVENANTS OF THE BORROWER	46
	 	 	 
	SECTION 9. EVENTS OF DEFAULT	49
	 	 	 
	SECTION 10. REMEDIES	52
	 	 	 
	SECTION 11. MISCELLANEOUS	53
	 	 	 
	Table of Exhibits and Schedules	 
	Exhibit A:	Secured Term Promissory Note	 
	Exhibit B:	Name, Locations, and Other Information for the Borrower	 
	Exhibit C:	The Borrower’s Patents, Trademarks, Copyrights and Licenses	 
	Exhibit D:	The Borrower’s Deposit Accounts and Investment Accounts	 
	Exhibit E:	Material Contracts	 
	Exhibit F:	Compliance Certificate	 
	Exhibit G:	Form of Joinder Agreement	 
	Exhibit H:	Pledge and Assignment Restrictions	 
	 	 	 
	Schedule 1A	Existing Permitted Indebtedness	 
	Schedule 1B	Existing Permitted Investments	 
	Schedule 1C	Existing Permitted Liens	 
	Schedule 1D	DDH Subsidiaries	 
	Schedule 2.1	Advance Amounts; Wire Instructions	 


 






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	Schedule 5.11	Third Party Rights to Intellectual Property	 
	Schedule 5.13	Intellectual Property Claims	 
	Schedule 5.14	Intellectual Property Litigation	 
	Schedule 5.17	Capitalization and Affiliates	 


 






    ii 


     


    

 


LOAN AND SECURITY AGREEMENT


 


THIS
LOAN AND SECURITY AGREEMENT is made and dated as of September 30, 2020 and is entered into by and among DIRECT DIGITAL
HOLDINGS, LLC, a Texas limited liability company (“DDH”), and each other BORROWER ENTITY (as defined
herein) (DDH, together with the other Borrower Entities, collectively, the “Borrower”), the SEVERAL FINANCIAL
INSTITUTIONS OR ENTITIES FROM TIME TO TIME PARTIES TO THIS AGREEMENT AS LENDERS (the “Lenders”) and SILVERPEAK
CREDIT PARTNERS, LP, a Delaware limited partnership, in its capacity as administrative agent and collateral agent for itself and the
Lenders (in such capacity, the “Agent”).


 


RECITALS


 


WHEREAS, DDH is on the
date hereof acquiring all of the Equity Interests of Orange 142, LLC, a Delaware limited liability company (“Orange 142”);


 


WHEREAS, the Borrower
has requested the Lenders to make available to the Borrower a term loan in an aggregate principal amount of $12,825,000 (the “Loan”)
to fund the cash portion of the purchase price being paid by DDH for such acquisition and related transaction expenses and for certain
other corporate expenses; and


 


WHEREAS, the Lenders are
willing to make the Loan on the terms and conditions set forth in this Agreement.


 


AGREEMENT


 


NOW, THEREFORE, the Borrower,
the Agent and the Lenders agree as follows:


 


SECTION 1. DEFINITIONS AND RULES
OF CONSTRUCTION


 


1.1            Unless
otherwise defined herein, the following capitalized terms shall have the following meanings:


 


“Account Control
Agreement” means, with respect to any Deposit Account of the Borrower, an agreement among the Agent, the applicable Borrower
Entity and the bank at which such Deposit Account is maintained, in form and substance satisfactory to the Agent, pursuant to which the
parties to such agreement acknowledge the Agent’s security interest in, and control over, such Deposit Account, as amended or modified
from time to time.


 


“Accrual Period”
means, with respect to any Payment Date, the period from and including the preceding Payment Date (or the Closing Date, in the case of
the first such period) to and including the day preceding such current Payment Date.


 


“Administration
Fee” shall have the meaning specified in the Fee Letter.


 


“Advance”
means, with respect to any Lender, the portion of the Loan held by such Lender.


 






    1


     


    

 


“Affiliate”
means (i) any Person that directly or indirectly controls, is controlled by, or is under common control with the Person in question,
(ii) any Person directly or indirectly owning, controlling or holding with power to vote 10% or more of the outstanding voting securities
of another Person, or (iii) any Person 10% or more of whose outstanding voting securities are directly or indirectly owned, controlled
or held by another Person with power to vote such securities. As used in the definition of “Affiliate,” the term “control”
means the possession, directly or indirectly, 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.


 


“Agent”
has the meaning given to it in the preamble to this Agreement.


 


“Agreement”
means this Loan and Security Agreement, as amended from time to time.


 


“Amortization
Date” means the fifteenth (15th) day of January and July in each year beginning with January 15,
2021, or, if such date shall not be a Business Day, the immediately following Business Day.


 


“Anti-Corruption
Laws” means all laws, rules, and regulations of any jurisdiction applicable to the Borrower or any of its Affiliates from
time to time concerning or relating to bribery or corruption, including without limitation the United States Foreign Corrupt Practices
Act of 1977, as amended, the UK Bribery Act 2010 and other similar legislation in any other jurisdictions.


 


“Anti-Terrorism
Laws” means any laws, rules, regulations or orders relating to terrorism or money laundering, including without limitation
Executive Order No. 13224 (effective September 24, 2001), the USA PATRIOT Act, the laws comprising or implementing the Bank
Secrecy Act, and the laws administered by OFAC.


 


“Assignee”
has the meaning given to it in Section 11.13.


 


“Audited Financial
Statements” means, (i) for any fiscal year of DDH and its Subsidiaries (being, as of the Closing Date, for the fiscal
year ended December 31, 2019), the most recent audited consolidated balance sheet of DDH and its Subsidiaries and the related consolidated
statements of income or operations, shareholders’ equity and cash flows for such fiscal year, and (ii) for the fiscal year
of Orange 142 ended December 31, 2019, the audited consolidated balance sheet of Orange 142 and its Subsidiaries and the related
consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal year.


 


“Blocked Person”
means any Person: (i) listed in the annex to, or is otherwise subject to the provisions of, Executive Order No. 13224; (ii) a
Person owned or controlled by, or acting for or on behalf of, any Person that is listed in the annex to, or is otherwise subject to the
provisions of, Executive Order No. 13224; (iii) a Person with which any Lender is prohibited from dealing or otherwise engaging
in any transaction by any Anti-Terrorism Law; (iv) a Person that commits, threatens or conspires to commit or supports “terrorism”
as defined in Executive Order No. 13224; or (v) a Person that is named a “specially designated national” or “blocked
person” on the most current list published by OFAC or other similar list.


 






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“Board”
shall have the meaning set forth therefor in Section 7.8.


 


“Board Observer”
shall have the meaning set forth therefor in Section 7.8.


 


“Borrower”
has the meaning given to it in the preamble to this Agreement.


 


“Borrower Entity”
means DDH; Huddled Masses LLC, a Delaware limited liability company; Colossus Media, LLC, a Delaware limited liability company; Orange
142; Universal Standards for Digital Marketing, LLC, a Delaware limited liability company; and any additional entity which hereafter joins
this Agreement as a Borrower Entity pursuant to a Joinder Agreement.


 


“Borrower Products”
means all products, software, service offerings, technical data or technology currently being designed, manufactured or sold by the Borrower
or which the Borrower intends to sell, license, or distribute in the future including any products or service offerings under development,
collectively, together with all products, software, service offerings, technical data or technology that have been sold, licensed or distributed
by any Borrower Entity since its respective incorporation or organization.


 


“Business Day”
means any day other than Saturday, Sunday and any other day on which banking institutions in the State of New York are closed for business.


 


“Cash”
means all cash, cash equivalents and liquid funds.


 


“CFC”
means a “controlled foreign corporation” as defined in Section 957(a) of the Code.


 


“Change in Control”
means any reorganization, recapitalization, consolidation or merger (or similar transaction or series of related transactions) of any
Borrower Entity, any sale or exchange of outstanding shares or other Equity Interests (or similar transaction or series of related transactions)
of any Borrower Entity or any other transaction or series of transactions, as a result of which (i) Mark Walker and Keith Smith (together
with members of their immediate families) collectively do not own a majority of the common equity interest in and more than 50% of the
voting power of, and control, the surviving entity of such transaction or series of related transactions (or the parent of such surviving
entity if such surviving entity is wholly owned by such parent), in each case without regard to whether a Borrower Entity is the surviving
entity, and own and control directly or indirectly a majority of the Equity Interests in and more than 50% of the voting power of, and
control, each Borrowing Entity, or (ii) any other Person or group acquires, directly or indirectly, more than 50% of the voting power,
or control, of any Borrower Entity, it being understood that any change in composition of the Board of DDH as contemplated by the DDH
Operating Agreement as in effect on the Closing Date shall not constitute a Change in Control.


 


“Change
in Law” shall mean (a) the adoption of any law, rule or regulation after the date of this Agreement,
(b) any change in any law, rule or regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender (or, for purposes of Section 2.7, by any
lending office of such Lender or by such Lender’s holding company, if any) with any request, guideline or directive (whether
or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement; provided that,
notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all
requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines
or directives promulgated by the Account Bank for International Settlements, the Basel Committee on Banking Supervision (or any
successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in
each case be deemed to be a “Change in Law,” regardless of the date enacted, adopted or issued.


 






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“Claims”
has the meaning given to it in Section 11.10.


 


“Closing Date”
means the date of this Agreement.


 


“Code”
shall mean the Internal Revenue Code of 1986, as amended from time to time.


 


“Collateral”
means the property described in Section 3.1.


 


“Confidential
Information” has the meaning given to it in Section 11.12.


 


“Consolidated
Cash Interest Coverage Ratio” shall mean, for any date, the ratio of Interest Expense as of such date to the EBITDA for
the period ending on such date determined on a Last Twelve Months Basis.


 


“Contingent
Obligation” means, as applied to any Person, any direct or indirect liability, contingent or otherwise, of that Person with
respect to (i) any Indebtedness, lease, dividend, letter of credit or other obligation of another, including any such obligation
directly or indirectly guaranteed, endorsed, co-made or discounted or sold with recourse by that Person, or in respect of which that Person
is otherwise directly or indirectly liable; (ii) any obligations with respect to undrawn letters of credit, corporate credit cards
or merchant services issued for the account of that Person; and (iii) all obligations arising under any interest rate, currency or
commodity swap agreement, interest rate cap agreement, interest rate collar agreement, or other agreement or arrangement designated to
protect a Person against fluctuation in interest rates, currency exchange rates or commodity prices; provided, however,
that the term “Contingent Obligation” shall not include endorsements for collection or deposit in the ordinary course of business.
The amount of any Contingent Obligation shall be deemed to be an amount (x) equal to the stated or determined amount of the primary
obligation in respect of which such Contingent Obligation is made or, (y) if not stated or determinable, equal to the maximum reasonably
anticipated liability in respect thereof as determined by such Person in good faith; provided, however, that such amount
shall not in any event exceed the maximum amount of the obligations under the guarantee or other support arrangement.


 


“Contractual
Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument
or other undertaking to which such Person is a party or by which it or any of its property is bound.


 






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“Copyright License”
means any written agreement granting any right to use any Copyright or Copyright registration, now owned or hereafter acquired by the
Borrower or in which the Borrower now holds or hereafter acquires any interest.


 


“Copyrights”
means all copyrights, whether registered or unregistered, held pursuant to the laws of the United States of America, any State thereof,
or of any other country.


 


“Default”
means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both,
would be an Event of Default.


 


“DDH”
has the meaning given to it in the preamble to this Agreement.


 


“DDH Operating
Agreement” means that certain Amended and Restated Limited Liability Company Agreement of DDH dated September 30, 2020,
as amended, modified or restated from time to time.


 


“Default Interest
Rate” shall mean the then applicable Interest Rate plus 2.00% per annum.


 


“Deposit Accounts”
means any “deposit accounts,” as such term is defined in the UCC, and includes any checking account, savings account, or certificate
of deposit.


 


“Disposition”
or “Dispose” means the sale, transfer, license, lease or other disposition of any property by any Person (including
any sale and leaseback transaction and any issuance of Equity Interests by a Subsidiary of such Person), including any sale, assignment,
transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.


 


“East West Bank”
shall mean East West Bank, a California state-chartered bank.


 


“East West Credit
Agreement” shall mean the Credit Agreement dated as of September 30, 2020 by and among the Borrower Entities, as borrowers,
and East West Bank, as lender.


 


“East West Loan
Documents” shall mean the “Loan Documents” under and as defined in the East West Credit Agreement.


 


“EBITDA”
means, for DDH and its Subsidiaries on a consolidated basis for any period in question, the sum of (a) Net Income for such period
plus (b) to the extent deducted in determining such Net Income, the sum, without duplication, of (i) Interest Expense
during such period, (ii) all federal, state, local and/or foreign income taxes payable by DDH and its Subsidiaries during such period,
(iii) depreciation expenses of DDH and its Subsidiaries during such period, (iv) amortization expenses of DDH and its Subsidiaries
during such period, (v) management fees payable under and pursuant to the Board Services and Consulting Agreements each dated as
of September 30, 2020, by and between DDH, on the one hand, and Keith Smith and Mark Walker, respectively, on the other hand (not
to exceed in aggregate amount $900,000 per annum or $225,000 per quarter for purposes of this definition) and (vi) non-recurring
legal, consulting expenses in an amount up to $250,000 during any 12 month period and minus (c) any extraordinary, non-recurring
and/or non-cash gains or income during such period as reported in the monthly and annual financials of DDH and
its Subsidiaries, all determined on a consolidated basis.


 






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“Environmental
Laws” shall mean all former, current and future Federal, state, local and foreign laws (including common law), treaties,
regulations, rules, ordinances, codes, decrees, judgments, directives, orders (including consent orders), and agreements in each case,
relating to protection of the environment, natural resources, human health and safety or the presence, release of, or exposure to, Hazardous
Materials, or the generation, manufacture, processing, distribution, use, treatment, storage, transport, recycling or handling of, or
the arrangement for such activities with respect to, Hazardous Materials.


 


“Environmental
Liability” shall mean all liabilities, obligations, damages, losses, claims, actions, suits, judgments, orders, fines, penalties,
fees, expenses and costs (including administrative oversight costs, natural resource damages and remediation costs), whether contingent
or otherwise, arising out of or relating to (a) compliance or non-compliance with any Environmental Law, (b) the generation,
use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release of any Hazardous Materials or (e) any contract, agreement or other consensual arrangement pursuant to which
liability is assumed or imposed with respect to any of the foregoing.


 


“Equity Cure”
means the cash contributions made to the Borrower in immediately available funds by one or more holders of Equity Interests therein as
additional common equity contributions to the Borrower and which are designated an “Equity Cure” by the Borrower under Section 10.2
at the time contributed.


 


“Equity Interests”
means, with respect to any Person, the capital stock, partnership or limited liability company interest, or other equity securities or
equity ownership interests of such Person.


 


“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended, and the regulations promulgated thereunder.


 


“ERISA Affiliate”
shall mean any corporation or trade or business that is a member of any group of organizations (i) described in Section 414(b) or
(c) of the Code of which the Borrower or the Guarantor is a member and (ii) solely for purposes of potential liability under
Section 302(c)(11) of ERISA and Section 412(c)(11) of the Code and the lien created under Section 302(f) of ERISA
and Section 412(n) of the Code, described in Section 414(m) or (o) of the Code of which the Borrower or the Guarantor
is a member.


 


“ERISA Event”
shall mean (a) any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder,
with respect to a Plan (other than an event for which the 30-day notice period is waived), (b) the existence with respect to any
Plan of an “accumulated funding deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA), whether
or not waived, (c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application
for a waiver of the minimum funding standard with respect to any Plan, (d) the incurrence by the Borrower or any of its ERISA Affiliates
of any liability under Title IV of ERISA with respect to the termination of any Plan or the withdrawal or partial withdrawal of the Borrower
or any of its ERISA Affiliates from any Plan or Multiemployer Plan, (e) the receipt by the Borrower or any of its ERISA Affiliates from the Pension
Benefit Guaranty Corporation or a plan administrator of any notice relating to the intention to terminate any Plan or Plans or to appoint
a trustee to administer any Plan, (f) the adoption of any amendment to a Plan that would require the provision of security pursuant
to Section 401(a)(29) of the Code or Section 307 of ERISA, (g) the receipt by the Borrower or any of its ERISA Affiliates
of any notice, or the receipt by any Multiemployer Plan from the Borrower or any of its ERISA Affiliates of any notice, concerning the
imposition of withdrawal liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA, (h) the occurrence of a non-exempt “prohibited transaction” with respect to
which the Borrower or any of the Subsidiaries is a “disqualified person” (within the meaning of Section 4975 of the Code)
or with respect to which the Borrower or any such Subsidiary could otherwise be liable, or (I ) any other event or condition with respect
to a Plan or Multiemployer Plan that could result in liability of the Borrower or any Subsidiary.


 






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“Event of Default”
has the meaning given to it in Section 9.


 


“Excess Cash
Flow” shall mean, with respect to any period, (i) EBITDA for such period, (ii) plus any net increase, and minus
any net decrease, in working capital in such period (annualized to the extent such period is less than a full year), and (iii) minus
the Excess Cash Flow Adjustment for such Payment Date, in each case as set forth in the Financial Statements delivered for such periods
pursuant to Section 7.1(a) and (b).


 


“Excess Cash
Flow Adjustment” shall mean, with respect to any Amortization Date, the sum of (i) voluntary prepayments of principal
of the Loan made since the preceding Amortization Date (or, in the case of the first such Amortization Date, since the Closing Date) pursuant
to Section 2.4(a), (ii) capital expenditures incurred during the period for which Excess Cash Flow is measured for such
Amortization Date, (iii) cash taxes and interest expense during such period, and (iv) such additional adjustments as may be
approved by the Agent in its sole discretion.


 


“Excluded Account”
means any Account (including, for the avoidance of doubt, any cash, cash equivalents or other property contained therein): (i) solely
to the extent, and for so long as, such Account is pledged to secure performance of obligations arising under clause (vi) of the
defined term “Permitted Liens”, and whether such pledge is by escrow or otherwise, in all cases with a balance no greater
than such obligations under clause (vi) of the defined term “Permitted Liens”; (ii) used exclusively for payroll,
payroll taxes and other employee wage and benefit payments with a balance no greater than such payroll, payroll taxes and other employee
wage and benefit payments obligations that are to be paid within any two-week period; (iii) constituting a “zero balance”
Account; or (iv) consisting of a disbursement account established with a payment processor to process vendor payments so long as
the average monthly balance in such account does not exceed $250,000 at any one time.


 


“Excluded Taxes”
shall mean, with respect to the Agent or any Lender, (a) franchise Taxes and Taxes imposed on or measured by net income (however
denominated), in each case, (i) imposed on (or measured by) its net income by the jurisdiction under the laws of which such recipient
is organized or in which its principal office is located or, in the case of any Lender, in which its applicable lending office is located
or (ii) that are Other Connection Taxes, (b) any branch profits Taxes imposed by any jurisdiction
described in clause (a) above, (c) in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower
under Section 2.09(a)), any U.S. federal withholding Tax that is imposed on amounts payable to such Foreign Lender at the
time such Foreign Lender becomes a party to this Agreement (or designates a new lending office) or is attributable to such Foreign Lender’s
failure to comply with Section 2.8(e), except to the extent that such Foreign Lender (or its assignor, if any) was entitled,
at the time of designation of a new lending office (or assignment), to receive additional amounts from the Borrower with respect to such
withholding Tax pursuant to Section 2.8(a), (d) Taxes attributable to such recipient’s failure to comply with Section 2.8(e) and
(e) any withholding Taxes imposed under FATCA.


 






    7


     


    

 


“Exit Fee”
shall have the meaning specified in the Fee Letter.


 


“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
law, regulations, or other official guidance enacted relating to an applicable intergovernmental agreement between a non-U.S. jurisdiction
and the United States with respect thereto, any agreements entered into pursuant to Section 1471(b)(1) of the Code, and any
fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among
Governmental Authorities and implementing such Sections of the Code.


 


“Fee Letter”
shall mean the Fee Letter dated the date hereof between DDH and the Agent.


 


“Financial Covenants”
shall mean the covenants set forth in Section 7.2.


 


“Financial Statements”
has the meaning given to it in Section 7.1 (it being understood that references to “most recent Financial Statements,”
or words to similar effect, shall mean (i) the Financial Statements relating to the quarterly or annual period most recently ended,
(ii) the Audited Financial Statements for such period, if the same are available, (iii) the Reviewed Financial Statements for
such period, if the same are available, but the Audited Financial Statements for such period are not yet available, and (iv) otherwise,
the unaudited Financial Statements for such period).


 


“Foreign Lender”
shall mean any Lender that is organized under the laws of a jurisdiction other than that in which DDH is located. For purposes of this
definition, the United States of America, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.


 


“GAAP”
means generally accepted accounting principles in the United States of America, as in effect from time to time.


 


“GAAP Revenue”
means the revenue earned by the Borrower from sales of the Borrower Products, as recognized and calculated by the Borrower in accordance
with GAAP, and excluding (i) rebates, (ii) wholesaler fees, (iii) returns, (iv) chargebacks and (v) any other
discounts or credits incurred, in each case to the extent not already excluded in the calculation of the Borrower’s revenue under
GAAP.


 






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“Governmental
Authority” means the government of the United States of America 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 (including any supra-national
bodies such as the European Union or the European Central Bank).


 


“Guarantor”
means each of Mark Walker and Keith Smith who, on the date hereof (after giving effect to the Orange 142 Acquisition), are collectively
the majority owners, directly or indirectly, of Equity Interests in DDH.


 


“Guaranty”
means each Limited Guaranty, dated as of the date hereof, of each Guarantor.


 


“Hazardous Materials”
shall mean (a) any petroleum products or byproducts and all other hydrocarbons, coal ash, radon gas, asbestos, urea formaldehyde
foam insulation, polychlorinated biphenyls, chlorofluorocarbons and all other ozone-depleting substances and (b) any chemical, material,
substance or waste that is prohibited, limited or regulated by or pursuant to any Environmental Law.


 


“Huddled Masses
Notes” means, collectively (i) that certain Promissory Note dated June 21, 2018, by and between HMC Operations,
LLC, a Texas limited liability company and Cantu Holdings, LLC, a Delaware limited liability, in the amount of $250,000.00, with an outstanding
balance of $87,500 as of the Closing Date (ii) that certain Promissory Note dated June 21, 2018, by and between HMC Operations,
LLC, a Texas limited liability company, Charles Cantu, a New York resident, Kristie MacDonald, Amy Harris, Laura Ottaviano, Lisa Grisanti,
Joseph Riggio, in the amount of $141,203.69, (iii) that certain Promissory Note dated June 21, 2018, by and between HMC Operations,
LLC, a Texas limited liability company, and Devon White, a New York resident, in the amount of $21,990.74, and (iv) that certain
Promissory Note dated June 21, 2018, by and between HMC Operations, LLC, a Texas limited liability company, and MediaMath, Inc.,
a Delaware corporation, in the amount of $64,814.81.


 


“Indebtedness”
means as to any Person as of any date of determination, without duplication, all of the following: (i) all indebtedness for borrowed
money or the deferred purchase price of property or services (excluding trade credit entered into in the ordinary course of business),
including reimbursement and other obligations with respect to surety bonds and letters of credit, (ii) all obligations evidenced
by notes, bonds, debentures or similar instruments, (iii) all capital lease obligations, and (iv) all Contingent Obligations.


 


“Indemnified
Person” has the meaning give to it in Section 6.3.


 


“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 Borrower Entity or Guarantor under any Loan Document, and (b) to the extent not otherwise described in (a), Other Taxes.


 


“Insolvency
Proceeding” is any proceeding by or against any Person under the United States Bankruptcy Code, or any other bankruptcy
or insolvency law, including assignments for the benefit of creditors, compositions,
extensions generally with its creditors, or proceedings seeking reorganization, arrangement, or other similar relief.


 






    9


     


    

 





 


“Intellectual
Property” means all of the Borrower’s Copyrights; Trademarks; Patents; Licenses; trade secrets and inventions; mask
works; the Borrower’s applications therefor and reissues, extensions, or renewals thereof; and the Borrower’s goodwill associated
with any of the foregoing, together with the Borrower’s rights to sue for past, present and future infringement of Intellectual
Property and the goodwill associated therewith.


 


“Intercreditor
Agreement” shall mean the Intercreditor Agreement dated September 30, 2020 between East West and the Agent, on behalf
of itself and the Lenders.


 


“Interest Expense”
means, for any period, the interest expense of DDH and its Subsidiaries for the period in question, determined on a consolidated basis
and consistent with practices as of the Closing Date or otherwise in accordance with GAAP.


 


“Interest Rate”
means for any day a per annum rate of interest equal to the rate set forth as the Interest Rate in the Fee Letter.


 


“Inventory”
means “inventory” as defined in Article 9 of the UCC.


 


“Investment”
means any beneficial ownership (including stock, partnership or limited liability company interests) of or in any Person, or any loan,
advance or capital contribution to any Person or the acquisition of any material assets of another Person, other than equipment purchases
made by the Borrower as part of the operation of its business.


 


“Joinder Agreement”
means for each Qualified Subsidiary not initially a party to this Agreement, a completed and executed Joinder Agreement in substantially
the form attached hereto as Exhibit G.


 


“Key Employees”
means Mark Walker and Keith Smith; provided that if any such Person is replaced by a successor that has been approved in writing by the
Agent, then such successor shall be deemed to be a Key Employee and the replaced Person shall cease to be a Key Employee.


 


“Last Twelve
Months Basis” shall mean, with respect to any financial measurement as of any Payment Date, such measurement for the 12-month
period ending on the last day of the fiscal quarter preceding such Payment Date (or, for Payment Dates occurring prior to the Payment
Date in November 2021, such measurement for the fiscal quarters following the acquisition of Orange 142 by DDH and preceding such
Payment Date, annualized).


 


“Lender”
has the meaning given to it in the preamble to this Agreement.


 


“License”
means any Copyright License, Patent License, Trademark License or other license of rights or interests.


 


“Lien”
means any mortgage, deed of trust, pledge, hypothecation, assignment for security, security interest, encumbrance, levy, lien or charge
of any kind, whether voluntarily incurred or arising by operation of law or
otherwise, against any property, any conditional sale or other title retention agreement, and any lease in the nature of a security interest.


 






    10


     


    

 


“Liquidity”
means (a) “Cash and cash equivalents,” as such term is used in the Audited Financial Statement of DDH as of December 31,
2019 and as set forth in the Borrower’s most recent Financial Statements plus (b) any amount available under the East West
Credit Agreement.


 


“Loan”
means the loan made under this Agreement.


 


“Loan Documents”
means this Agreement, the Notes (if any), each Guaranty, all UCC Financing Statements, any Joinder Agreements, any Account Control Agreements,
the Intercreditor Agreement, any Subordination Agreements and any other documents executed in connection with the Secured Obligations
or the transactions contemplated hereby, as the same may from time to time be amended, modified, supplemented or restated.


 


“Material Adverse
Effect” means a material adverse effect upon: (i) the business, operations, properties, assets or financial condition
of the Borrower and its Subsidiaries taken as a whole; or (ii) the ability of the Borrower to perform or pay the Secured Obligations
in accordance with the terms of the Loan Documents, or the ability of the Agent or the Lenders to enforce any of its rights or remedies
with respect to the Secured Obligations; or (iii) the Collateral or the Agent’s Liens on the Collateral or the priority of
such Liens.


 


“Material Assets”
shall mean assets of the Borrower (other than inventory) which, in the aggregate in any fiscal year, shall have a value (not less than
the sale price thereof) of $125,000 or more.


 


“Material Contracts”
means (i) each contract or other agreement (other than the Loan Documents), written or oral, of the Borrower involving monetary liability
of or to any Person in an amount in excess of $250,000 in any fiscal year, (ii) each contract pursuant to which the Borrower expects
to generate more than $250,000 in revenues in any fiscal year, (iii) each other contract or agreement (other than the Loan Documents),
whether written or oral, to which the Borrower is a party as to which the breach, nonperformance, cancellation or failure to renew by
any party thereto would reasonably be expected to have a Material Adverse Effect; and (iv) each additional contract listed on Exhibit E
hereto.


 


“Maturity Date”
means the earlier to occur of (a) the Scheduled Maturity Date and (b) the date that the Loan and other Obligations hereunder
are declared due and payable following the occurrence of an Event of Default pursuant to Section 10.


 


“Maximum Total
Leverage Ratio Target” has the meaning set forth therefor in Section 7.2(b).


 


“Maximum Rate”
has the meaning set forth therefor in Section 2.2.


 


“Minimum Consolidated
Cash Interest Coverage Ratio Target” has the meaning set forth therefor in Section 7.2(c).


 


“Minimum Liquidity
Target” has the meaning set forth therefor in Section 7.2(a).


 






    11


     


    

 


“Monthly Key
Performance Indicators Report” shall mean a report showing, with respect to the preceding calendar month, (x) key business
performance indicators including (i) new customers signed, (ii) prospective customers, (iii) current backlog/pipeline,
and (iv) sell side platform, including general impressions, average daily sales and average eCPM, (y) key financial performance
indicators as of the end of such month, including (i) liquidity (cash plus revolving credit facility availability), (ii) accounts
receivable (balances and aging), (iii) accounts payable (balances and aging) and (iv) variance from the initial budget (covering
both revenues and EBITDA, provided that variance in EBITDA shall be with respect to the second preceding calendar month rather than the
preceding calendar month) and (z) such additional key performance indicators as the Agent shall reasonably request.


 


“Multiemployer
Plan” shall mean a multiemployer plan defined as such in Section 3(37) of ERISA to which contributions have been, or
were required to have been, made by either of the Borrower or the Guarantor or any of their ERISA Affiliates and which is covered by Title
IV of ERISA.


 


“Net Income”
means the net income (or loss) of DDH and its Subsidiaries for the period in question, determined on a consolidated basis and consistent
with practices as of the Closing Date or otherwise in accordance with GAAP.


 


“Note”
means a Promissory Note in substantially the form of Exhibit A.


 


“OFAC”
is the U.S. Department of Treasury Office of Foreign Assets Control.


 


“OFAC Lists”
are, collectively, the Specially Designated Nationals and Blocked Persons List maintained by OFAC pursuant to Executive Order No. 13224,
66 Fed. Reg. 49079 (Sept. 25, 2001) and/or any other list of terrorists or other restricted Persons maintained pursuant to any of the
rules and regulations of OFAC or pursuant to any other applicable Executive Orders.


 


“Orange 142”
has the meaning set forth in the recitals hereto.


 


“Orange 142
Acquisition” means the acquisition by DDH of Orange 142 occurring on the date hereof.


 


“Orange 142
Acquisition Agreement” means the Membership Interest Purchase and Contribution Agreement dated the date hereof by and among
DDH, USDM Holdings, Leah Woolford and Orange 142.


 


“Orange 142
Acquisition Documents” shall mean the Orange 142 Acquisition Agreement, the Amended and Restated Limited Liability Company
Agreement of DDH as of the date hereof, and any other documents executed in connection with the Orange 142 Acquisition or the transactions
contemplated hereby, in each case including all schedules and exhibits thereto, and in each case, as the same may from time to time be
amended, modified, supplemented or restated.


 


“Origination
Fee” shall have the meaning specified in the Fee Letter.


 


“Other
Connection Taxes” shall mean, with respect to a Lender, Taxes imposed as a result of a present or former connection
between such Lender and the jurisdiction imposing such Tax (other than connections arising from such Lender having executed,
delivered, become a party to, performed its obligations under, received
payments under, received or perfected a security interest under, or engaged in any other transaction pursuant to or enforced any Loan
Document or sold or assigned an interest in any Loan or Loan Document).


 






    12


     


    

 


“Other Related
Person” means, with respect to any Person who is an individual, any other Person related by blood or marriage to such Person.


 


“Other Taxes”
shall mean any and all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes arising from any
payment made under any Loan Document or from the execution, delivery, performance, assignment, enforcement or registration of, from the
receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other
Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.09(a) or
(b)).


 


“Participant
Register” has the meaning given to it in Section 11.13.


 


“Patent License”
means any written agreement granting any right with respect to any invention on which a Patent is in existence or a Patent application
is pending, in which agreement the Borrower now holds or hereafter acquires any interest.


 


“Patents”
means all letters patent of, or rights corresponding thereto, in the United States of America or in any other country, all registrations
and recordings thereof, and all applications for letters patent of, or rights corresponding thereto, in the United States of America or
any other country.


 


“Payment Date”
means the 15th day of each calendar month beginning with October 15, 2020 or, if any such date shall not be a Business
Day, the immediately following Business Day.


 


“Payment Date
Statement” shall have the meaning set forth therefor in Section 2.1(d).


 


“Permitted Acquisition”
shall mean any acquisition (including by way of merger) by the Borrower of all or substantially all of the assets of another Person, or
of a division or line of business of another Person, or capital stock of another Person, in each case located entirely within the United
States of America, which is conducted in accordance with the following requirements:


 


(i)            such
acquisition is of a business or Person engaged in a line of business related to that of the Borrower or its Subsidiaries;


 


(ii)           if
such acquisition is structured as a stock acquisition, then the Person so acquired shall either (x) become a wholly-owned Subsidiary
of the Borrower or of a Subsidiary and the Borrower shall comply, or cause such Subsidiary to comply, with Section 7.13 (including
without limitation entering into a Joinder Agreement) or (y) such Person shall be merged with and into a Borrower Entity (with such
Borrower Entity being the surviving entity);


 


(iii)           if
such acquisition is structured as the acquisition of assets, such assets shall be acquired by the Borrower, and shall be free and clear
of Liens other than Permitted Liens;


 






    13


     


    

 


(iv)          the
Borrower shall have delivered to the Agent and the Lenders not less than 15 nor more than 45 days prior to the date of such acquisition,
notice of such acquisition together with pro forma projected financial information, copies of all material documents relating to
such acquisition, and historical financial statements for such acquired entity, division or line of business, in each case in form and
substance satisfactory to the Lenders and demonstrating compliance with the covenants set forth in Section 7.2 on a pro
forma basis;


 


(v)           both
immediately before and after such acquisition all Financial Covenants shall be satisfied and no Default or Event of Default shall have
occurred and be continuing; and


 


(vi)           the
sum of the purchase price of such proposed new acquisition, computed on the basis of total acquisition consideration paid or incurred,
or to be paid or incurred, by the Borrower with respect thereto, including the amount of Permitted Indebtedness assumed or to which such
assets, businesses or business or ownership interest or shares, or any Person so acquired, is subject, shall not be greater than (x) $250,000
for any single acquisition or group of related acquisitions or (y) $500,000 for all such acquisitions during the term of this Agreement;
provided, however, if the Borrower proposes that the purchase price of any such new acquisition be paid solely through the
issuance of Equity Interests by a Borrower Entity, the Borrower shall provide notice thereof to the Agent, along with a reasonably detailed
post-acquisition pro forma financial model, and if the Agent provides its written consent to such acquisition, the value thereof
shall not be counted against the thresholds set forth in the foregoing clauses (x) and (y); provided further that the terms
of this clause (vi) (other than this proviso) shall not be a requirement for any acquisition if at the time of such acquisition and
after giving effect thereto the Borrower’s Liquidity is in excess of the product of (A) the Minimum Liquidity Target for the
date nearest to the date of such acquisition multiplied by (B) 1.5.


 


“Permitted Indebtedness”
means: (i) Indebtedness of the Borrower in favor of the Lenders or the Agent arising under this Agreement or any other Loan Document;
(ii) Indebtedness incurred pursuant to the East West Credit Agreement incurred in accordance with Section 8.12 and the
Intercreditor Agreement; (iii) Indebtedness existing on the Closing Date which is disclosed in, and subject to the limitations set
forth in, Schedule 1A; (iv) Indebtedness of up to $200,000 outstanding at any time secured by a Lien described in clause
(viii) of the defined term “Permitted Liens,” provided such Indebtedness does not exceed the cost of the Equipment or
Intellectual Property financed with such Indebtedness; (v) Trade Payables; (vi) reimbursement obligations in connection with
trade letters of credit entered into in the ordinary course of business and, to the extent not subject to an Excluded Account, cash management
services (including credit cards, debit cards and other similar instruments) that are secured by Cash and issued on behalf of the Borrower
or a Subsidiary thereof in an amount not to exceed $200,000 at any time outstanding; (vii) Indebtedness secured by a Lien described
in clause (xi) of the defined term “Permitted Liens”; (viii) extensions, refinancings and renewals of any items
of Permitted Indebtedness; provided that the principal amount is not increased or the terms modified to impose materially more
burdensome terms upon the Borrower or its Subsidiary, as the case may be; (ix) other unsecured Indebtedness in an amount not to exceed
$200,000 in the aggregate; and (x) the Huddled Masses Notes as in effect on the Closing Date.


 





 






    14


     


    

 


“Permitted Investment”
means: (i) Investments existing on the Closing Date which are disclosed in Schedule 1B; (ii) (a) marketable direct
obligations issued or unconditionally guaranteed by the United States of America
or any agency or any State thereof maturing within one year from the date of acquisition thereof currently having a rating of at least
A-2 or P-2 from either Standard & Poor’s Corporation or Moody’s Investors Services, (b) commercial paper maturing
no more than one year from the date of creation thereof and currently having a rating of at least A-2 or P-2 from either Standard &
Poor’s Corporation or Moody’s Investors Service, (c) certificates of deposit issued by any bank with assets of at least
$250,000,000 maturing no more than one year from the date of investment therein, and (d) money market accounts; (iii) repurchases
of stock from current or former employees, directors, or consultants of the Borrower under the terms of applicable repurchase agreements
at the original issuance price of such securities in an aggregate amount not to exceed $250,000 in any fiscal year; provided that
no Event of Default has occurred, is continuing or could exist after giving effect to the repurchases; (iv) Investments (including
debt obligations) received in connection with the bankruptcy or reorganization of customers or suppliers and in settlement of delinquent
obligations of, and other disputes with, customers or suppliers arising in the ordinary course of the Borrower’s business; (v) Investments
consisting of notes receivable of, or prepaid royalties and other credit extensions to, customers and suppliers who are not Affiliates,
in the ordinary course of business; provided that this subparagraph (vi) shall not apply to Investments of the Borrower in
any Subsidiary; (vi) Investments consisting of loans not involving the net transfer on a substantially contemporaneous basis of cash
proceeds to employees, officers or directors relating to the purchase of capital stock or other Equity Interests of Borrower Entity pursuant
to employee stock purchase plans or other similar agreements approved by the Borrower Entity’s Board of Directors (or, if not a
corporation, its equivalent authorizing body); (vii) Investments consisting of travel advances in the ordinary course of business;
(viii) Investments in newly-formed Subsidiaries; provided that any such Subsidiary that is or is expected to become a Qualified Subsidiary
enters into a Joinder Agreement promptly after its formation by the Borrower and executes such other documents as shall be reasonably
requested by the Agent; and (ix) additional Investments (including Permitted Acquisitions) that do not exceed $200,000 in the aggregate
in any fiscal year if, at the time of such Investment and after giving effect thereto, the Borrower is in compliance with the covenants
set forth in Section 7.2 (or, for any period prior to December 31, 2020, would be in compliance if the requirement thereunder
were in effect as of the date of such Investment).


 


“Permitted
Liens” means any and all of the following: (i) Liens in favor of the Agent or the Lenders; (ii) Liens under the
East West Credit Agreement and the other East West Loan Documents to the extent of Permitted Indebtedness thereunder; (iii) Liens
existing on the Closing Date which are disclosed in Schedule 1C; (iv) Liens for taxes, fees, assessments or other governmental
charges or levies, either not delinquent or being contested in good faith by appropriate proceedings; provided that the Borrower
maintains adequate reserves therefor in accordance with GAAP; (v) Liens securing claims or demands of materialmen, artisans, mechanics,
carriers, warehousemen, landlords and other like Persons arising in the ordinary course of the Borrower’s business and imposed
without action of such parties; (vi) Liens arising from judgments, decrees or attachments in circumstances which do not constitute
an Event of Default hereunder; (vii) Liens on deposits held in an Excluded Account; (viii) Liens on Equipment or software or
other intellectual property constituting purchase money Liens and Liens in connection with capital leases securing Indebtedness permitted
in clause (iv) of “Permitted Indebtedness”; (ix) Liens incurred in connection with Subordinated Indebtedness permitted
pursuant to Section 8.2; (x) leasehold interests in leases or subleases and licenses granted in the ordinary course
of business and not interfering in any material respect with the business of the licensor; (xi) Liens in favor of customs and revenue
authorities arising as a matter of law to secure payment of custom duties that are promptly paid on or before the date they become due;
(xii) Liens on insurance proceeds securing the payment of financed insurance premiums that are promptly paid on or before the date
they become due (provided that such Liens extend only to such insurance proceeds and not to any other property or assets); (xiii) statutory
and common law rights of set-off and other similar rights as to deposits of cash and securities in favor of banks, other depository institutions
and brokerage firms; (xiv) easements, zoning restrictions, rights-of-way and similar encumbrances on real property imposed by law
or arising in the ordinary course of business so long as they do not materially impair the value or marketability of the related property;
(xv) (A) Liens on Cash securing obligations permitted under clause (vi) of the definition of Permitted Indebtedness and
(B) security deposits in connection with real property leases, the combination of (A) and (B) in an aggregate amount not
to exceed $300,000 at any time; (xvi) sales, transfers or other dispositions of assets permitted by Section 8.4 and,
in connection therewith, customary rights and restrictions contained in agreements relating to such transactions pending the completion
thereof or during the term thereof, and any option or other agreement to sell, transfer, license, sublicense, lease, sublease or dispose
of an asset permitted by Section 8.4, in each case, such terms being agreed to and such transactions entered into in the
ordinary course of business; and (xvii) Liens incurred in connection with the extension, renewal or refinancing of the Indebtedness
secured by Liens of the type described in clauses (i) through (xvi) above; provided that any extension, renewal or replacement
Lien shall be limited to the property encumbered by the existing Lien and the principal amount of the Indebtedness being extended, renewed
or refinanced (as may have been reduced by any payment thereon) does not increase.


 









    15


     


    

 








“Person”
means any individual, sole proprietorship, partnership, joint venture, trust, estate, unincorporated organization, association, corporation,
limited liability company, institution, or other legal entity or organization or any government.


 


“Plan”
shall mean an employee benefit or other plan (a) established or maintained by the Borrower, the Guarantor or any of their ERISA Affiliates
during the five year period ended prior to the date of this Agreement or to which the Borrower, the Guarantor or any of their ERISA Affiliates
makes, is obligated to make or has, within the five year period ended prior to the date of this Agreement, been required to make contributions
and (b) that is covered by Title IV of ERISA, other than a Multiemployer Plan.


 


“Prepayment
Charge” has the meaning given to it in Section 2.4(c).


 


“Qualified Subsidiary”
means any Subsidiary of DDH which holds material assets of the type to be included in the Collateral.


 


“Receivables”
means (i) all of the Borrower’s Accounts, Instruments, Documents, Chattel Paper, Supporting Obligations, letters of credit,
proceeds of any letter of credit, and Letter of Credit Rights, and (ii) all customer lists, software, and business records related
thereto.


 


“Register”
has the meaning given to it in Section 11.13.


 






    16


     


    

 


“Related Parties”
means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees,
administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.


 


“Required Lenders”
means at any time, the holders of more than 66-2/3% of the sum of the aggregate unpaid principal amount of the Loans then outstanding.


 


“Resignation
Effective Date” shall have the meaning set forth therefor in Section 11.17.


 


“Reviewed Financial
Statements” means, for any fiscal year of DDH and its Subsidiaries (being, as of the Closing Date, for the fiscal year ended
December 31, 2019) and the related consolidated statements of income or operations, shareholders’ equity and cash flows for
such fiscal year, that have been reviewed by independent accountants.


 


“Rights to Payment”
has the meaning given to it in Section 3.1.


 


“Sanctioned
Country” means, at any time, a country or territory which is the subject or target of any Sanctions.


 


“Sanctioned
Person” means, at any time, (i) any Person listed in any Sanctions-related list of designated Persons maintained by
the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, or by the United Nations
Security Council, the European Union or any EU member state, (ii) any Person operating, organized or resident in a Sanctioned Country
or (iii) any Person controlled by any such Person.


 


“Sanctions”
means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (i) the U.S. government,
including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of
State, or (ii) the United Nations Security Council, the European Union or Her Majesty’s Treasury of the United Kingdom.


 


“Scheduled Maturity
Date” means September 15, 2023.


 


“Secured Obligations”
means the Borrower’s obligations under this Agreement and any Loan Document, including any obligation to pay any amount now owing
or later arising.


 


“Secured Parties”
means the Lenders and the Agent.


 


“Solvent”
means, as to any Person as of any date of determination, that on such date (a) the fair value of the property of such Person is greater
than the total amount of liabilities, including contingent liabilities, of such Person, (b) the present fair saleable value of such
Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute
and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s
ability to pay such debts and liabilities as they mature and (d) such Person is not engaged in a business or a transaction, and is
not about to engage in a business or a transaction, for which such Person’s property would constitute an unreasonably small capital.
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.


 






    17


     


    

 


“Specified Financial
Covenants” has the meaning given to it in Section 10.2.


 


“Subordinated
Indebtedness” means Indebtedness that (i) is subordinated to the Secured Obligations in all respects, (ii) matures,
and provides for no mandatory payments of principal until, after the Scheduled Maturity Date, (iii) is subject to standstill and
other intercreditor provisions acceptable to the Agent in its sole discretion, (iv) is in amounts and on other terms and conditions
satisfactory to the Agent in its sole discretion and (v) is subject to a Subordination Agreement in form and substance satisfactory
to the Agent in its sole discretion.


 


“Subordination
Agreement” means any subordination agreement or other intercreditor agreement entered into by the Agent with respect to
Subordinated Indebtedness pursuant to Section 8.2.


 


“Subsidiary”
means an entity, whether corporate, partnership, limited liability company, joint venture or otherwise, in which a Borrower Entity owns
or controls 50% or more of the outstanding voting securities, including each entity listed on Schedule 1D hereto.


 


“Tax
Distributions” means quarterly tax distributions by DDH to its constituent members in the amount necessary to satisfy
U.S. federal, state and local income tax obligations allocated to such members based on the taxable income of DDH and its Subsidiaries
on a consolidated basis for such taxable year, in an aggregate amount determined in accordance with the terms of the organizational documents
of DDH. DDH may make such distributions after the end of the taxable year, or make such distributions on a quarterly basis during the
taxable year to reflect estimated tax obligations of the members and their direct or indirect equityholders; provided that any such quarterly
distribution made to a member shall not exceed the amount of taxes actually estimated in good faith by the Borrower to be payable by such
member in respect of its direct or indirect interest in DDH for such quarter. For the avoidance of doubt, Tax Distributions based on estimates
shall be made on a “rolling basis” and will be trued-up at least annually.


 


“Taxes”
shall mean any and all present or future taxes, levies, imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority, including any interest, additions to tax or penalties applicable thereto.


 


“Total Debt”
means shall mean, at any time, the total Indebtedness of the Borrower and the Subsidiaries at such time.


 


“Total Leverage
Ratio” shall mean, for any date, the ratio of Total Debt as of such date to the EBITDA for the period ending on such date
determined on a Last Twelve Months Basis.


 


“Trademark License”
means any written agreement granting any right to use any Trademark or Trademark registration, now owned or hereafter acquired by the
Borrower or in which the Borrower now holds or hereafter acquires any interest.


 


“Trademarks”
means all trademarks (registered, common law or otherwise) and any applications in connection therewith, including registrations, recordings
and applications in the United States Patent and Trademark Office
or in any similar office or agency of the United States of America, any State thereof or any other country or any political subdivision
thereof.


 






    18


     


    

 






 


“Trade Payables”
means amounts billed to the Borrower by its suppliers for goods delivered to or services performed for the Borrower in the ordinary course
of business.


 


“Transition
Deposit Account” has the meaning given to it in Section 7.12.


 


“UCC”
means the Uniform Commercial Code as the same is, from time to time, in effect in the State of New York; provided that
in the event that, by reason of mandatory provisions of law, any or all of the attachment, perfection or priority of, or remedies
with respect to, the Agent’s Lien on any Collateral is governed by the Uniform Commercial Code as the same is, from time to time,
in effect in a jurisdiction other than the State of New York, then the term “UCC” shall mean the Uniform Commercial Code
as in effect, from time to time, in such other jurisdiction solely for purposes of the provisions thereof relating to such attachment,
perfection, priority or remedies and for purposes of definitions related to such provisions.


 


“USDM Holdings”
shall mean USDM Holdings, Inc., a Texas corporation.


 


“U.S. Person”
shall mean a Person that is a “United States person” as defined in Section 7701(a)(30) of the Code.


 


“Wholly-Owned”
means, as to a Subsidiary of a Person, a Subsidiary of such Person all of the outstanding Equity Interests of which (other than (a) director’s
qualifying shares and (b) shares issued to foreign nationals to the extent required by applicable law) are owned by such Person and/or
by one or more Wholly-Owned Subsidiaries of such Person.


 


Unless otherwise specified,
all references in this Agreement or any Annex or Schedule hereto to a “Section,” “subsection,” “Exhibit,”
 “Annex,” or “Schedule” shall refer to the corresponding Section, subsection, Exhibit, Annex, or Schedule in or
to this Agreement. Unless otherwise specifically provided herein, any accounting term used in this Agreement or the other Loan Documents
shall have the meaning customarily given such term in accordance with GAAP, and all financial computations hereunder shall be computed
in accordance with GAAP, consistently applied. Unless otherwise defined herein or in the other Loan Documents, terms that are used herein
or in the other Loan Documents and defined in the UCC shall have the meanings given to them in the UCC. Unless otherwise specified, all
references in this Agreement to the “Borrower” or to “DDH and its Subsidiaries” and all similar references shall
refer to such entities after giving effect to the Orange 142 Acquisition and accordingly shall include Orange 142 and its Subsidiaries.


 


SECTION 2.     THE
LOAN


 


2.1            The
Loan.


 


(a)            The
Loan. Subject to the terms and conditions of this Agreement, the Lenders will severally (and not jointly) make a Loan to the Borrower
in an aggregate amount equal to $12,825,000, allocated among the Lenders as set forth on Schedule 2.1 hereto, on the Closing Date.


 



    19


     


    




 


(b)            Interest.
The principal balance of the Loan shall bear interest thereon from the Closing Date at the Interest Rate, with interest computed daily
based on the actual number of days elapsed in a year consisting of 365 days, payable on each Payment Date in an amount accrued during
the preceding Accrual Period and not previously paid.


 


(c)            Principal.
The Borrower shall repay a portion of the outstanding Loan principal balance on each Amortization Date in an amount equal to 37.5% of
Excess Cash Flow over the preceding 6 calendar months (e.g., for the Amortization Date in January 2021, over the calendar months
of July 2020 through December 2020) until the Loan is paid in full. The entire remaining Loan principal balance, and all accrued
but unpaid interest thereon and all other Secured Obligations hereunder, shall be due and payable on the Maturity Date.


 


(d)            Payments.
No later than 10:00 a.m. New York City time on each Payment Date, the Agent shall provide a statement (each, a “Payment
Date Statement”) to DDH and each of the Lenders setting forth the interest, principal and other amounts due to each Lender
on such Payment Date, which Payment Date Statement shall be final, and binding upon the Lenders, absent manifest error. DDH shall be entitled
to rely on each such Payment Date Statement, and no Default or Event of Default shall be deemed to occur as a result of DDH’s failure
to make any payment or portion thereof due on the related Payment Date, so long as payments are timely made in accordance with the provisions
of such Payment Date Statement (including prompt payment of any additional amounts required following any subsequent correction thereof).
The Borrower shall make each payment (including principal of or interest on any Loan or any fees or other amounts) hereunder and under
any other Loan Document not later than 12:00 (noon), New York City time, on the date when due in immediately available Dollars, without
setoff, defense or counterclaim. Each such payment shall be made to the Agent or applicable Lender by wire transfer to the account for
the Agent or such Lender, as applicable, specified in Schedule 2.1, or such other account or address specified by the Agent or
the applicable Lender by notice to the Borrower and the Agent, and shall be deemed received only when actually received by the Agent or
the Lender, as applicable, in New York, New York at such account and address. The Borrower agrees to make payments with respect to the
Advance of any Lender directly to such Lender. Nevertheless, the Agent shall promptly distribute to each Lender any payments received
by the Agent on behalf of such Lender. Except as otherwise expressly provided herein, whenever any payment (including principal of or
interest on the Loan or any fees or other amounts) hereunder or under any other Loan Document shall become due, or otherwise would occur,
on a day that is not a Business Day, such payment may be made on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of interest or fees, if applicable. The Borrower shall make all payments under this Agreement
without setoff, recoupment or deduction and regardless of any counterclaim or defense.


 


(e)            Exit
Fee. Upon payment in full of the Loan, whether pursuant to Section 2.1(c) or by a principal prepayment pursuant to Section 2.4,
the Borrower shall pay the Exit Fee to the Lenders.


 



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2.2            Maximum
Interest. Notwithstanding any provision in this Agreement or any other Loan Document, it is the parties’ intent not to contract
for, charge or receive interest at a rate that is greater than the maximum rate permissible by law that a court of competent jurisdiction
shall deem applicable hereto (which under the laws of the State of New York shall be deemed to be the laws relating to permissible rates
of interest on commercial loans) (the “Maximum Rate”). If a court of competent jurisdiction shall finally determine
that the Borrower has actually paid to the Lenders an amount of interest in excess of the amount that would have been payable if all of
the Secured Obligations had at all times borne interest at the Maximum Rate, then such excess interest actually paid by the Borrower shall
be applied as follows: first, to the payment of the Secured Obligations consisting of the outstanding principal; second, after all principal
is repaid, to the payment of the Lenders’ accrued interest, costs, expenses, professional fees and any other Secured Obligations;
and third, after all Secured Obligations are repaid, the excess (if any) shall be refunded to the Borrower.


 


2.3            Default
Interest. Upon the occurrence and during the continuation of an Event of Default hereunder, all Secured Obligations, including principal,
interest, compounded interest, and professional fees, shall bear interest at a rate per annum equal to the Default Interest Rate. In the
event that any interest or other amount is not paid when due hereunder, such delinquent interest or other amount shall bear interest thereon
at the Default Interest Rate until paid.


 


2.4            Prepayment.


 


(a)            At
its option upon at least 30 Business Days’ prior written notice to the Agent, the Borrower may prepay all or any portion of the
principal balance of the Loan; provided that such prepayment is accompanied by a payment of and all accrued and unpaid interest on the
amount so prepaid, together with any applicable Prepayment Charge.


 


(b)            The
Borrower agrees that the Prepayment Charge is a reasonable calculation of the Lenders’ lost profits in view of the difficulties
and impracticality of determining actual damages resulting from an early repayment of the Loan. The Borrower shall prepay the outstanding
amount of all principal and accrued interest through the prepayment date and the Prepayment Charge upon the occurrence of a Change in
Control. Notwithstanding the foregoing, the Agent and the Lenders agree to waive the Prepayment Charge if the Agent and the Lenders (in
their sole and absolute discretion) agree in writing to refinance the Loan prior to the Maturity Date.


 


(c)            In
connection with any optional or mandatory prepayment, including without limitation a mandatory prepayment due to a Change in Control,
due to a sale of a material portion of the Borrower’s assets or due to acceleration of the Loan following an Event of Default, the
Borrower shall pay to the Lenders a prepayment charge equal to the following percentages of the amount being prepaid (the “Prepayment
Charge”): (i) if such prepayment is made on or before the first Payment Date after the Closing Date, 30.00% of the
principal prepaid; (ii) if such prepayment is made thereafter through the second anniversary of the first Payment Date, a percentage
of the principal then prepaid equal to 30.00% minus the product of 1.25% times the number of Payment Dates preceding the date of such
prepayment, and if such prepayment is made after the second anniversary of the first Payment Date following the Closing Date, 0.00% of
the principal prepaid. There will be no Prepayment
Charge in connection with required amortization payments on each Amortization Date pursuant to Section 2.1(c).


 



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(d)           Promptly
upon receipt thereof, at least 50% of the proceeds of any Disposition of a Material Asset (other than sale of inventory in the ordinary
course of business), net of any reasonable and documented expenses incurred in connection with such Disposition, shall be applied to prepayment
of the Loan. Such requirement shall be in addition to any mandatory prepayment in full in connection with a Change in Control without
the consent of the Agent as restricted pursuant to Sections 8.10 and 9.9, and any restriction on any Disposition of the
Borrower’s assets pursuant to Sections 8.1 and 8.4.


 


2.5           Notes.
If so requested by any Lender by written notice to the Borrower, the Borrower shall execute and deliver to such Lender (and/or, if applicable
and if so specified in such notice, to any Person who is an assignee of such Lender pursuant to Section 11.13) (promptly after
the Borrower’s receipt of such notice) a Note or Notes to evidence such Lender’s Advance.


 


2.6           Pro
Rata Treatment. Each payment (including prepayment) on account of interest or any fee payable to the Lenders and any reduction in
the principal balance of the Loans shall be made pro rata according to the respective Advances of the relevant Lenders.


 


2.7           Reserve
Requirements; Increased Costs.


 


(a)           Notwithstanding
any other provision of this Agreement, if any Change in Law shall impose, modify or deem applicable any reserve, special deposit or similar
requirement against assets of, deposits with or for the account of or credit extended by any Lender or shall impose on such Lender any
Taxes (other than Indemnified Taxes or the imposition of, or any increase in the rate of, any Excluded Taxes) or any other condition affecting
this Agreement or the Advance made by such Lender or any participation therein, and the result of any of the foregoing shall be to increase
the cost to such Lender of making or maintaining any Advance or increase the cost to any Lender of purchasing or maintaining a participation
therein or to reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal, interest or otherwise)
by an amount deemed by such Lender to be material, then the Borrower will pay to such Lender, upon demand, such additional amount or amounts
as will compensate such Lender for such additional costs incurred or reduction suffered. A certificate from such Lender to DDH certifying,
in reasonably specific detail, the basis for, calculation of, and amount of such additional costs or reduced amount receivable shall be
conclusive in the absence of manifest error; provided, however, that no Lender shall be required to disclose any confidential or tax planning
information in any such certificate.


 


(b)           If
any Lender shall have determined that any Change in Law regarding capital adequacy has or would have the effect of reducing the rate
of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this
Agreement or the Loans made by such Lender pursuant hereto to a level below that which such Lender or such Lender’s holding
company could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of
such Lender’s holding company with respect to capital adequacy) by an amount deemed by such Lender to be material, then from
time to time the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or such
Lender’s holding company for any such reduction suffered. A certificate from such Lender to DDH certifying, in reasonably
specific detail, the basis for, calculation of, and amount of such reduced amount receivable shall be conclusive in the absence of
manifest error; provided, however, that no Lender shall be required to disclose any confidential or tax planning information in any
such certificate.


 






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(c)           A
certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company, as applicable,
as specified in paragraph (a) or (b) above shall be delivered to the Borrower and shall be conclusive absent manifest error.
The Borrower shall pay such Lender the amount shown as due on any such certificate delivered by it within 10 days after its receipt of
the same.


 


(d)           Failure
or delay on the part of any Lender to demand compensation for any increased costs or reduction in amounts received or receivable or reduction
in return on capital shall not constitute a waiver of such Lender’s right to demand such compensation; provided that the Borrower
shall not be under any obligation to compensate any Lender under paragraph (a) or (b) above with respect to increased costs
or reductions with respect to any period prior to the date that is 180 days prior to such request if such Lender knew or could reasonably
have been expected to know of the circumstances giving rise to such increased costs or reductions and of the fact that such circumstances
would result in a claim for increased compensation by reason of such increased costs or reductions; provided further that the foregoing
limitation shall not apply to any increased costs or reductions arising out of the retroactive application of any Change in Law within
such 180-day period. The protection of this Section shall be available to each Lender regardless of any possible contention of the
invalidity or inapplicability of the Change in Law that shall have occurred or been imposed.


 


2.8           Taxes


 


(a)           Any
and all payments by or on account of any obligation of the Borrower hereunder or under any other Loan Document shall be made free and
clear of and without deduction or withholding for any Taxes, except as required by applicable law; provided that, if any Borrower Entity
or Guarantor shall be required by applicable law to deduct or withhold any Taxes from such payments, then (i) in the case of Indemnified
Taxes, the sum payable shall be increased as necessary so that after making all required deductions or withholdings (including deductions
or withholdings applicable to additional sums payable under this Section) the Agent and each Lender (as the case may be) receives an amount
equal to the sum it would have received had no such deductions been made, (ii) the Borrower shall make such deductions or withholdings,
and (iii) the Borrower shall pay the full amount so deducted or withheld to the relevant Governmental Authority in accordance with
applicable law.


 


(b)           In
addition, the Borrower shall pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.


 






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(c)           The
Borrower shall indemnify the Agent and each Lender within 10 days after written 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) paid by the Agent or
such Lender, as the case may be, on or with respect to any payment by or on account of any obligation of the Borrower hereunder or under
any other Loan Document and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or
Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such
payment or liability delivered to the Borrower by a Lender, or by the Agent on behalf of itself or a Lender shall be conclusive absent
manifest error.


 


(d)           As
soon as practicable after any payment of Indemnified Taxes or Other Taxes by the Borrower to a Governmental Authority, the Borrower shall
deliver to the 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 Agent.


 


(e)           Any
Lender that is a U.S. Person shall deliver to the Borrower and the 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 Agent) executed
copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax. Any Foreign Lender that
is entitled to an exemption from or reduction of withholding tax under the law of the jurisdiction in which the Borrower is located,
or any treaty to which such jurisdiction is a party, with respect to payments under this Agreement shall, to the extent it is
legally entitled to do so, deliver to the Borrower and the Agent, at the time or times prescribed by applicable law or reasonably
requested by the Borrower or the Agent, such properly completed and executed documentation prescribed by applicable law or
reasonably requested by the Borrower or the Agent as will permit such payments to be made without withholding or at a reduced rate.
In addition, any Lender, to the extent it is legally entitled to do so, shall deliver such other documentation prescribed by
applicable law or reasonably requested by the Borrower or the Agent as will enable the Borrower (or the Agent) to determine whether
or not such Lender is subject to backup withholding or information reporting requirements. If a payment made to a Lender under any
Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the
applicable 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 Agent at the time or times prescribed by law and at such time or
times reasonably requested by the Borrower or the 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 Agent
as may be necessary for the Borrower and the Agent to comply with its obligations under FATCA and to determine that such Lender has
complied with its obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes
of the preceding sentence, “FATCA” shall include any amendments made to FATCA after the date of this Agreement. Each
Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it
shall update such form or certification or promptly notify the Borrower and the Agent in writing of its legal inability to do
so.


 






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(f)           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 2.8 (including by the payment of additional amounts pursuant to this Section 2.8),
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 2.8
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 Section 2.8(f) (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 Section 2.8(f), in no
event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this Section 2.8(f) 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.


 


(g)           Each
party’s obligations under this Section 2.8 shall survive any assignment of rights by, or the replacement of, any Lender
or the Agent, and the repayment, satisfaction or discharge of all obligations under any Loan Document.


 


2.9           Duty
to Mitigate.


 


(a)           In
the event (i) any Lender delivers a certificate requesting compensation pursuant to Section 2.7 or (ii) the
Borrower is required to pay any additional amount to any Lender or any Governmental Authority on account of any Lender pursuant to Section 2.8,
then, in each case, the Borrower may, at its sole expense and effort, upon notice to such Lender and the Agent, require such Lender
to transfer and assign, without recourse (in accordance with and subject to the restrictions contained in Sections 12.7 and 12.13),
all of its interests, rights and obligations under this Agreement to an eligible Assignee (which assignee may be another Lender, if
a Lender accepts such assignment); provided that (x) such assignment shall not conflict with any law, rule or
regulation or order of any court or other Governmental Authority having jurisdiction, (y) the Borrower shall have received the
prior written consent of the Agent, which consent shall not unreasonably be withheld or delayed, and (z) the Borrower or such
assignee shall have paid to the affected Lender in immediately available funds an amount equal to the sum of the principal of and
interest accrued to the date of such payment on the outstanding Advance of such Lender plus all fees and other amounts accrued for
the account of such Lender hereunder with respect thereto (including any amounts under Section 2.7); provided further that,
if prior to any such transfer and assignment the circumstances or event that resulted in such Lender’s claim for compensation
under Section 2.7 or the amounts paid pursuant to Section 2.8, as the case may be, cease to cause such
Lender to suffer increased costs or reductions in amounts received or receivable or reduction in return on capital, or cease to
result in amounts being payable under Section 2.8, as the case may be (including as a result of any action taken by such
Lender pursuant to paragraph (b) below), or if such Lender shall waive its right to claim further compensation under Section 2.7
in respect of such circumstances or event or shall waive its right to further payments under Section 2.8 in respect of
such circumstances or event, then such Lender shall not thereafter be required to make any such transfer and assignment
hereunder.


 






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(b)           If
(i) any Lender shall request compensation under Section 2.7 or (ii) the Borrower is required to pay any additional
amount to any Lender or any Governmental Authority on account of any Lender pursuant to Section 2.8, then such Lender shall
use reasonable efforts (which shall not require such Lender to incur an unreimbursed loss or unreimbursed cost or expense or otherwise
take any action inconsistent with its internal policies or legal or regulatory restrictions or suffer any disadvantage or burden deemed
by it to be significant) (x) to file any certificate or document reasonably requested in writing by the Borrower or (y) to assign
its rights and delegate and transfer its obligations hereunder to another of its offices, branches or affiliates, if such filing or assignment
would reduce its claims for compensation under Section 2.7 or would reduce amounts payable pursuant to Section 2.8,
as the case may be, in the future. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection
with any such filing or assignment, delegation and transfer.


 


SECTION 3. SECURITY INTEREST


 


3.1           Grant
of Security Interest.


 


(a)           As
security for the prompt and complete payment when due (whether on Payment Dates, on the Maturity Date or otherwise) of all the Secured
Obligations, the Borrower grants to the Agent, for the benefit of the Secured Parties, a security interest in all of the Borrower’s
right, title, and interest in, to and under all of the Borrower’s property and other assets including without limitation the following
(except as set forth herein) whether now owned or hereafter acquired (collectively, the “Collateral”): (a) Receivables;
(b) Equipment; (c) Fixtures; (d) General Intangibles; (e) Intellectual Property and all Accounts and General Intangibles
that consist of rights to payment and proceeds from the sale, licensing or disposition of all or any part of, or rights in, the Intellectual
Property (the “Rights to Payment”); (f) Inventory; (g) Investment Property; (h) Deposit Accounts;
(i) Cash; (j) Goods; and all other tangible and intangible personal property of the Borrower whether now or hereafter owned
or existing, leased, consigned by or to, or acquired by, the Borrower and wherever located, and any of the Borrower’s property in
the possession or under the control of the Agent; and, to the extent not otherwise included, all Proceeds of each of the foregoing and
all accessions to, substitutions and replacements for, and rents, profits and products of each of the foregoing.


 






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(b)           The
Collateral identified pursuant to paragraph (a) above shall specifically include:


 


(i)           the
Borrower’s interest in each of the Material Contracts, including all rights to payment thereunder and rights to enforcement thereof;


 


(ii)           the
interests of the Borrower and the Borrower’s Qualified Subsidiaries in their Intellectual Property, including the Intellectual Property
identified on Exhibit C, as amended by the Borrower from time to time pursuant to Section 7.8;



 


(iii)          all
shares of common stock or other Equity Interests in each Borrower Entity’s direct Subsidiaries, if any;


 


(iv)          all
Accounts and General Intangibles that consist of rights to payment for services rendered or representing proceeds from the sale, licensing
or disposition of all or any part of, or rights in, the Borrower’s Equipment or Intellectual Property;


 


(v)           all
Equipment owned by the Borrower and the Borrower’s Qualified Subsidiaries;


 


(vi)          the
Orange 142 Acquisition Agreement and all of the Borrower’s rights and interests therein; and


 


(vii)         the
Borrower’s leasehold interest in any real property.


 


3.2           Excluded
Property. Notwithstanding the broad grant of the security interest set forth in Section 3.1, above, the Collateral shall
not include (a) any “intent to use” trademarks at all times prior to the first use thereof, whether by the actual use
thereof in commerce, the recording of a statement of use with the United States Patent and Trademark Office or otherwise; provided,
that upon submission and acceptance by the United States Patent and Trademark Office of an amendment to allege use of an intent-to-use
trademark application pursuant to 15 U.S.C. Section 1060(a) (or any successor provision) such intent-to-use application shall
constitute Collateral, and (b) nonassignable licenses or contracts, which by their terms require the consent of the licensor thereof
or another party, to the extent identified as nonassignable on Exhibit C or Exhibit H (but only to the extent
such prohibition on transfer is enforceable under applicable law, including, without limitation, Sections 9-406, 9-407 and 9-408 of the
UCC).


 


3.3           Delivery
of Collateral. All certificates or instruments representing or evidencing Collateral (other than such Collateral having an aggregate
value of no more than $10,000) shall be delivered to and held by the Agent pursuant to this Agreement, shall be in suitable form for transfer
by delivery or shall be accompanied by duly executed instruments of transfer or assignment in blank, all in form and substance satisfactory
to the Agent and, to the extent not constituting an assignment, shall be irrevocable powers of attorney coupled with an interest. Upon
the occurrence of an Event of Default, the Agent shall have the right, at any time and without notice to the Borrower or any Secured Party,
to transfer to or to register in the name of the Agent or any of its nominees any or all of the Collateral.


 






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3.4           Borrower
Remains Liable. Notwithstanding anything in this Agreement to the contrary, (a) each of the Borrower Entities who are parties
thereto shall remain liable under the Material Contracts and other agreements included in the Collateral to perform all of its duties
and obligations thereunder to the same extent as if this Agreement had not been executed, (b) the exercise by the Agent as agent
of the Lenders or by the Agent as agent of the Secured Parties of any of its rights under this Agreement shall not release the Borrower
from any of its duties or obligations under the Material Contracts or other agreements included in the Collateral, (c) the Agent
as agent of the Lenders and the Agent as agent of the Secured Parties shall not have any obligation or liability under the Material Contracts
or other agreements included in the Collateral by reason of this Agreement, and (d) neither the Agent nor any of the Lenders shall
be obligated to perform any of the obligations or duties of the Borrower under the Material Contracts or other agreements included in
the Collateral or to take any action to collect or enforce any claim for payment assigned under this Agreement.


 


3.5           Further
Assurances; Financing Statements.


 


(a)           The
Borrower agrees that, at any time and from time to time, it shall at the expense of the Borrower promptly authorize, execute and deliver,
as applicable, all further instruments and documents and take all further action that may be necessary or desirable or that the Agent
may reasonably request to maintain the perfection of the Agent’s security interest in the Collateral. Without limiting the generality
of the foregoing, the Borrower shall authorize, execute and file, as applicable, such financing or continuation statements, or amendments
thereto, and such other instruments or notices as may be necessary or desirable or that the Agent may request to perfect the assignments
and security interests granted by this Agreement.


 


(b)           The
Borrower and the Lenders hereby severally authorize the Agent to file one or more financing or continuation statements, and amendments
thereto, relating to all or any part of the Collateral without the signature of the Borrower or the Secured Parties where permitted by
law. A photographic or other reproduction of this Agreement or any financing statement covering the Collateral or any part thereof shall
be sufficient as a financing statement where permitted by law. The Agent will promptly send to the Borrower any financing or continuation
statements thereto which it files without the signature of the Borrower. The Agent will promptly send the Borrower or the Secured Parties,
as the case may be, the filing or recordation information with respect thereto.


 


(c)           The
Borrower shall furnish to the Agent from time to time such statements and schedules further identifying and describing the Collateral
and such other reports in connection with the Collateral as the Agent may reasonably request, all in reasonable detail.


 


SECTION 4. CONDITIONS PRECEDENT
TO LOAN


 


The obligations of the
Lenders to make the Loan hereunder are subject to the satisfaction by the Borrower of the following conditions:


 


4.1           Consummation
of Acquisition. The Orange 142 Acquisition Agreement shall be in form and substance reasonably satisfactory to the Agent and the
Lenders, all conditions to closing of the Orange 142 Acquisition set forth in the Orange 142 Acquisition Agreement shall have been
satisfied or waived with the consent of the Agent, the Orange 142 Acquisition shall have been consummated concurrently with the
transactions contemplated hereby and DDH shall become the owner of all Equity Interests of Orange 142 concurrently with the
transactions contemplated hereby, and in connection therewith the Agent and Lenders shall have received:


 


(a)           Copies
of the Orange 142 Acquisition Documents certified by the Borrowers to be true and correct as of the Closing Date;


 






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(b)           Evidence
that the Orange 142 Acquisition shall have been consummated in accordance with the terms of the Orange 142 Acquisition Documents and in
compliance in all material respects with applicable law and regulatory approvals; and


 


(c)           Evidence
that the Borrower shall have received all governmental, shareholder and material third party consents and approvals necessary in connection
with any aspect of the Orange 142 Acquisition.


 


4.2           Due
Diligence. The Agent shall have completed its due diligence of the Borrower and its Subsidiaries and shall have found such due diligence
to be satisfactory.


 


4.3           Required
Financing Documents. On or prior to the Closing Date, the Borrower shall have delivered to the Agent and Lenders the following, all
in form and substance reasonably satisfactory to the Agent and the Lenders:


 


(a)           executed
copies of the Loan Documents, and all other documents and instruments reasonably required by the Agent to effectuate the transactions
contemplated hereby or to create and perfect the Liens of the Agent with respect to all Collateral, including without limitation:


 


(i)           copies
of all filings to be made under the UCC, in form for filing;


 


(ii)          copies
of all filings to be made with respect to Intellectual Property, in form for filing, and


 


(iii)         stock
certificates representing common stock (and any other certificated Equity Interest) of any of the Borrower’s Subsidiaries pledged
hereunder, together with fully executed stock powers in blank executed by the registered owner thereof;


 


(b)           copies
of the certificate of incorporation, certificate of organization or other organizational document of each Borrower Entity, as amended
and/or amended and restated through the Closing Date, certified by the Secretary of State of its respective state of organization;


 


(c)           a
certificate of good standing for each Borrower Entity from the Secretary of State of its respective state of organization and similar
certificates from all other jurisdictions in which such Borrower Entity does business and where the failure to be qualified could have
a Material Adverse Effect;


 






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(d)           a
certificate of the secretary of each Borrower Entity as to (i) an attached copy of resolutions of such entity’s board of directors
(or, for any limited liability company, comparable documentation) evidencing approval of the Loan and other transactions evidenced by
the Loan Documents; (ii) an attached copy of the by-laws (or, where applicable, limited liability company operating agreement) of
such entity, as amended and/or amended and restated through the Closing Date, and (iii) incumbency and signatures of officers of
such entity who executed any of the Loan Documents;


 


(e)           a
certificate of an officer of DDH as to accuracy of representations and warranties set forth in Section 5 and satisfaction
of conditions set forth in this Section 4;


 


(f)            the
Reviewed Financial Statements of each of DDH and its Subsidiaries and Orange 142 and its Subsidiaries for the fiscal year ended December 31,
2019 and the unaudited Financial Statements thereof for the each of the first two fiscal quarters of the fiscal year ending December 31,
2020;


 


(g)           all
certificates of insurance and copies of each insurance policy required hereunder;


 


(h)           a
legal opinion of McGuire Woods LLP, special counsel to the Borrower, as to corporate authority; due authorization, execution and delivery,
enforceability, perfection of the security interest granted hereunder, absence of conflicts and such other matters with respect to the
transactions hereunder or the Orange 142 Acquisition as the Agent shall reasonably request;


 


(i)             upon
the reasonable request of any Lender made at least ten days prior to the Closing Date, the documentation and other information so requested
in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the PATRIOT
Act, in each case at least five days prior to the Closing Date;


 


(j)             such
other documents as the Agent may reasonably request.


 


4.4            Payment
of Fees and Expenses. The Agent shall have received the Origination Fee and reimbursement of the Agent’s and the Lenders’
current expenses reimbursable pursuant to this Agreement and the Fee Letter, which amounts may be deducted from the amount advanced in
respect of the Loan on the Closing Date.


 


4.5            Compliance.
All representations and warranties set forth in Section 5 shall be true and correct in all material respects as of the Closing
Date, except that representations and warranties made as of a prior date shall be true and correct in all material respects as of such
prior date, and the Borrower shall be in compliance with all the terms and provisions set forth herein and in each other Loan Document
on its part to be observed or performed on or before the Closing Date.


 


4.6            No
Default. As of the Closing Date, (i) no fact or condition exists that could (or could, with the passage of time, the giving of
notice, or both) constitute an Event of Default and (ii) no event that has had or could reasonably be expected to have a Material
Adverse Effect has occurred and is continuing.


 



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SECTION 5. REPRESENTATIONS AND
WARRANTIES OF THE BORROWER


 


The Borrower represents
and warrants to the Agent and the Lenders as of the date hereof and on each date thereafter until all Secured Obligations (other than
contingent indemnification obligations as to which no claim has been asserted) are paid in full that:


 


5.1           Corporate
Status. Each Borrower Entity and, each of its Subsidiaries (a) is duly organized, legally existing and in good standing under
the laws of its state of organization, (b) has all requisite power and authority and all requisite governmental licenses, authorizations,
consents and approvals to (i) own or lease its assets and carry on its business and (ii) execute, deliver and perform its obligations
under the Loan Documents to which it is a party, and (c) is duly qualified and is licensed and in good standing in all jurisdictions
in which the nature of its business or location of its properties require such qualification or license and where the failure to be qualified
or licensed could reasonably be expected to have a Material Adverse Effect. Each Borrower Entity’s present name, former names (if
any), locations, place of formation, tax identification number, organizational identification number and other information are correctly
set forth in Exhibit B, as may be updated by the Borrower in a written notice (including any Compliance Certificate) provided
to the Agent after the Closing Date.


 


5.2           Collateral.
The Borrower owns its interest in the Collateral (including without limitation the Material Contracts and the Intellectual Property) free
of all Liens, except for Permitted Liens. Each Borrower Entity has the power and authority to grant to the Agent a Lien in the Collateral
as security for the Secured Obligations.


 


5.3           Consents.
Each Borrower Entity’s execution, delivery and performance of this Agreement and all other Loan Documents to which it is a party,
including without limitation delivery of copies of the Material Contracts and other written information provided to the Agent in connection
herewith, (i) have been duly authorized by all necessary corporate or limited liability company action of each Borrower Entity, (ii) will
not result in the creation or imposition of any Lien upon the Collateral, other than Permitted Liens and the Liens created by this Agreement
and the other Loan Documents, (iii) do not violate any provisions of such Borrower Entity’s certificate of incorporation, by-laws
or other organizational document, or any, law, regulation, order, injunction, judgment, decree or writ to which the Borrower is subject
and (iv) do not violate any material contract or material agreement or require the consent or approval of any other Person which
has not already been obtained. The individual or individuals executing the Loan Documents are duly authorized to do so.


 


5.4           Governmental
Authorization; Other Consents. No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any
Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement
against, the Borrower of this Agreement or any other Loan Document, except for such approvals, consents, exemptions, authorizations, actions
or notices that have been duly obtained, taken or made and in full force and effect.


 






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5.5           Financial
Statements; No Material Adverse Effect.


 


(a)           The
Reviewed Financial Statements for the fiscal year ended December 31, 2019 and, to the extent subsequently prepared, the Audited
Financial Statements for each subsequent fiscal year, were or will be prepared in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise expressly noted therein, and do or will fairly present in all material
respects the financial condition of DDH and its Subsidiaries (or, for the period prior to the date of acquisition of Orange 142 by
DDH, of Orange 142 and its Subsidiaries) as of the date thereof and their results of operations and cash flows for the period
covered thereby in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly
noted therein. The unaudited consolidated balance sheet of the DDH and its Subsidiaries (or, for the period prior to the date of
acquisition of Orange 142 by DDH, of Orange 142 and its Subsidiaries) and the related consolidated statements of income or
operations, shareholders’ equity and cash flows for the first two quarters of the fiscal year ending December 31, 2020
and, to the extent subsequently prepared, for each subsequent fiscal year and fiscal quarter, were or will be prepared in accordance
with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, and do or will
fairly present in all material respects the financial condition of DDH and its Subsidiaries (or, as applicable, of Orange 142 and
its Subsidiaries) as of the date thereof and their results of operations and cash flows for the period covered thereby, subject to
the absence of notes and to normal year-end audit adjustments.


 


(b)           No
event that has had or could reasonably be expected to have a Material Adverse Effect has occurred since December 31, 2019. The Borrower
is not aware of any event likely to occur that is reasonably expected to result in a Material Adverse Effect.


 


5.6           Actions
Before Governmental Authorities. There are no actions, suits or proceedings at law or in equity or by or before any governmental authority
now pending or, to the knowledge of the Borrower, threatened in writing against or affecting the Borrower or any of their respective properties,
that is reasonably expected to result in a Material Adverse Effect.


 


5.7           Litigation.
There are no actions, suits, proceedings, claims, disputes or investigations pending or, to the knowledge of the Borrower, threatened,
at law, in equity, in arbitration or before any Governmental Authority, by or against the Borrower, any Subsidiary thereof or against
any of their properties or revenues that (a) could reasonably be expected to be adversely determined, and, if so determined, either
individually or in the aggregate could reasonably be expected to have a Material Adverse Effect or (b) purport to affect or pertain
to this Agreement or any other Loan Document or any of the transactions contemplated hereby.


 


5.8           Laws.


 


(a)           Neither
DDH nor any of its Subsidiaries is in violation of any law, rule or regulation, or in default with respect to any judgment, writ,
injunction or decree of any governmental authority, where such violation or default is reasonably expected to result in a Material Adverse
Effect. The Borrower is not in default in any manner under any provision of any agreement or instrument evidencing material Indebtedness,
or any other material agreement to which it is a party or by which it is bound.


 






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(b)           Neither
DDH nor any of its Subsidiaries is an “investment company” or a company “controlled” by an “investment
company” under the Investment Company Act of 1940, as amended. Neither the Borrower nor any of its Subsidiaries is engaged as
one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of
Governors), and not more than 25% of the value of the assets of the Borrower, or of the Borrower and its Subsidiaries on a
consolidated basis, consists of margin stock. The Borrower and each of its Subsidiaries has complied in all material respects with
the Federal Fair Labor Standards Act. Neither DDH nor any of its Subsidiaries is a “holding company” or an
 “affiliate” of a “holding company” or a “subsidiary company” of a “holding company”
as each term is defined and used in the Public Utility Holding Company Act of 2005. Neither DDH’s nor any of its
Subsidiaries’ properties or assets have been used by the Borrower or, to the Borrower’s knowledge, by previous Persons,
in disposing, producing, storing, treating, or transporting any hazardous substance other than in material compliance with
applicable laws. DDH and each of its Subsidiaries have obtained all consents, approvals and authorizations of, made all declarations
or filings with, and given all notices to, all Governmental Authorities that are necessary to continue their respective businesses
as currently conducted.


 


(c)           None
of DDH nor any of its Subsidiaries, nor any of the DDH or any of its Subsidiaries nor any of their respective agents acting or benefiting
in any capacity in connection with the transactions contemplated by this Agreement is (i) in violation of any Anti-Terrorism Law,
(ii) engaging in or conspiring to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding or attempts
to violate, any of the prohibitions set forth in any Anti-Terrorism Law, or (iii) is a Blocked Person. None of the Borrower nor any
of its Subsidiaries nor, to the knowledge of the Borrower, any of their Affiliates or agents acting or benefiting in any capacity in connection
with the transactions contemplated by this Agreement, (x) conducts any business or engages in making or receiving any contribution
of funds, goods or services to or for the benefit of any Blocked Person, or (y) deals in, or otherwise engages in any transaction
relating to, any property or interest in property blocked pursuant to Executive Order No. 13224, any similar executive order or other
Anti-Terrorism Law. None of the funds to be provided under this Agreement will be used, directly or indirectly, (a) for any activities
in violation of any applicable anti-money laundering, economic sanctions and anti-bribery laws and regulations laws and regulations or
(b) for any payment 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.


 


5.9           Information
Correct and Current. No written information, report, financial statement, exhibit or schedule furnished, by any Borrower Entity
to the Agent in connection with any Loan Document or included therein or delivered pursuant thereto contained, or, when taken as a
whole, contains or will contain any material misstatement of fact or, when taken together with all other such information or
documents, omitted, omits or will omit to state any material fact necessary to make the statements therein, in the light of the
circumstances under which they were, are or will be made, not materially misleading at the time such statement was made or deemed
made. Additionally, any and all financial or business projections provided by the Borrower to the Agent, whether prior to or after
the Closing Date, shall be (i) provided in good faith and based on the most current data and information available to the
Borrower, and (ii) the most current of such projections provided to the Borrower’s board of directors (or equivalent
governing body) (it being understood for purposes of this Section 5.9 only that such projections are subject to
significant uncertainties and contingencies, many of which are beyond the control of the Borrower, that no assurance is given that
any particular projections will be realized, and that actual results may differ from the projected results).


 






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5.10          Tax
Matters. Except for those being contested in good faith with adequate reserves under GAAP or where the failure to file such Tax returns
or to pay such Taxes would not reasonably be expected to have a Material Adverse Effect, (a) the Borrower has filed all U.S. federal
and other material state, local and non-U.S. Tax returns that it is required to file, (b) the Borrower has duly paid or fully reserved
for all Taxes or installments thereof (including any interest or penalties) as and when due, which have or may become due, and (c) the
Borrower has paid or fully reserved for any Tax assessment received by the Borrower, if any (including any taxes being contested in good
faith and by appropriate proceedings).


 


5.11          Real
Property; Intellectual Property.


 


(a)            Each
of the Borrower and its Subsidiaries has good record and marketable title in fee simple to, or valid leasehold interests in, all real
property necessary or used in the ordinary conduct of its business, except for such defects in title that, either individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect


 


(b)            Except
as described on Schedule 5.11, the Borrower has all material rights with respect to Intellectual Property necessary or material
in the operation or conduct of its business as currently conducted and proposed to be conducted by it. Without limiting the generality
of the foregoing, and in the case of Licenses, except for restrictions that are unenforceable under Article 9 of the UCC, the Borrower
has the right, to the extent required to operate the its business, to freely transfer, license or assign Intellectual Property necessary
or material in the operation or conduct of its business as currently conducted and proposed to be conducted by it, without condition,
restriction or payment of any kind (other than license payments in the ordinary course of business) to any third party, and the Borrower
owns or has the right to use, pursuant to valid licenses, all software development tools, library functions, compilers and all other third-party
software and other items that are material to its business and used in the design, development, promotion, sale, license, manufacture,
import, export, use or distribution of the Borrower Products except customary covenants in inbound license agreements and equipment leases
where the Borrower is the licensee or lessee.


 


5.12          Environmental
Matters. Except with respect to any matters that, either individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect, neither the Borrower nor any Subsidiary thereof (a) has failed to comply with any Environmental
Law or to obtain, maintain or comply with any permit, license or other approval required under any Environmental Law, (b) knows
of any basis for any permit, license or other approval required under any Environmental Law to be revoked, canceled, limited,
terminated, modified, appealed or otherwise challenged, (c) has or could reasonably be expected to become subject to any
Environmental Liability, (d) has received notice of any claim, complaint, proceeding, investigation or inquiry with respect to
any Environmental Liability (and no such claim, complaint, proceeding, investigation or inquiry is pending or, to the knowledge of
the Borrower, is threatened or contemplated) or (e) knows of any facts, events or circumstances that could give rise to any
basis for any Environmental Liability of the Borrower or any Subsidiary.


 






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5.13           Intellectual
Property Claims. The Borrower is the sole owner of, or otherwise has the right to use, the Intellectual Property material to the Borrower’s
business. Except as described on Schedule 5.13, (i) each of the material Copyrights, Trademarks and Patents is valid and enforceable,
(ii) no material part of the Intellectual Property has been judged invalid or unenforceable, in whole or in part, and (iii) no
claim has been made to the Borrower that any material part of the Intellectual Property violates the rights of any third party. Exhibit C
(as it may be updated from time to time by the Borrower pursuant to Section 7.9) is a true, correct and complete list of each
of the Borrower’s Patents, registered Trademarks, registered Copyrights, and material agreements under which the Borrower licenses
Intellectual Property from third parties, together with application or registration numbers, as applicable, owned by the Borrower or any
Subsidiary. The Borrower is not in material breach of, nor has the Borrower failed to perform any material obligations under, any of the
foregoing contracts, licenses or agreements and, to the Borrower’s knowledge, no third party to any such contract, license or agreement
is in material breach thereof or has failed to perform any material obligations thereunder. The Borrower owns or has licenses or the right
to use all Patents, registered Trademarks, and registered Copyrights (other than, in each case, any such Patents, Trademarks or Copyrights
that are not, in whole or in any part, required, necessary or desirable in connection with, or otherwise applicable to, (i) the Borrower’s
compliance with, or the activities contemplated under, any Material Contract or other material agreement to which the Borrower is a party,
(ii) the current or contemplated business activities or prospects of the Borrower or (iii) the Borrower’s compliance with
applicable laws, rules and regulations, or non-infringement upon third-party rights, in connection with any of the foregoing). Each
of the Patents, Trademarks and Copyrights owned by the Borrower or which the Borrower licenses or otherwise has the right to use is identified
on Exhibit C.


 


5.14           Borrower
Products. Except as described on Schedule 5.14, no Intellectual Property owned by the Borrower nor any Borrower Product
has been or is subject to any actual or, to the knowledge of the Borrower, threatened in writing litigation, proceeding (including
any proceeding in the United States Patent and Trademark Office or any corresponding foreign office or agency) or outstanding
decree, order, judgment, settlement agreement or stipulation that restricts in any manner the Borrower’s use, transfer or
licensing thereof or that may affect the validity, use or enforceability thereof. There is no decree, order, judgment, agreement,
stipulation, arbitral award or other provision entered into in connection with any litigation or proceeding that obligates the
Borrower to grant licenses or ownership interest in any future Intellectual Property related to the operation or conduct of the
business of the Borrower or the Borrower Products. The Borrower has not received any written notice or claim, or, to the knowledge
of the Borrower, oral notice or claim, challenging or questioning the Borrower’s ownership in any material Intellectual
Property (or written notice of any claim challenging or questioning the ownership in any licensed Intellectual Property of the owner
thereof) or suggesting that any third party has any claim of legal or beneficial ownership with respect thereto nor, to the
Borrower’s knowledge, is there a reasonable basis for any such claim. Neither the Borrower’s use of its Intellectual
Property nor the production and sale of the Borrower Products infringes the Intellectual Property or other rights of others in any
material respect.


 






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5.15          Financial
Accounts. Exhibit D, as may be updated by the Borrower in a written notice provided to the Agent after the Closing Date,
is a true, correct and complete list of (a) all banks and other financial institutions at which the Borrower or any Subsidiary maintains
Deposit Accounts and (b) all institutions at which the Borrower or any Subsidiary maintains an account holding Investment Property,
and such exhibit correctly identifies the name, address and telephone number of each bank or other institution, the name in which the
account is held, a description of the purpose of the account, and the complete account number therefor.


 


5.16          Employee
Loans. Other than to the extent constituting Permitted Investments, the Borrower has no outstanding loans to any employee, officer
or director of the Borrower nor has the Borrower guaranteed the payment of any loan made to an employee, officer or director of the Borrower
by a third party.


 


5.17          Capitalization
and Subsidiaries. DDH’s capitalization as of the Closing Date is set forth on Schedule 5.17 annexed hereto. The Borrower
does not own any stock, partnership interest or other securities of any Person, except for Permitted Investments. The Borrower has no
Affiliates other than (i) the Borrower Entities, (ii) direct and indirect owners of DDH, and (iii) Orange 142 Advertising
Canada, Inc., a wholly-owned subsidiary of Orange 142 which has been, and will continue to be, inactive since its incorporation,
which has and will continue to have no assets or liabilities and which will be dissolved within one month after the Closing Date. HMC
Operations, LLC, a Texas corporation, was merged into DDH prior to the date hereof.


 


5.18          Solvency.
The Borrower is Solvent.


 


5.19          ERISA.
Neither any Borrower Entity nor any of their ERISA Affiliates maintains, makes contributions to, or has any obligations with respect to
any Plans or Multiemployer Plans. No Borrower Entity is a “benefit plan investor” as defined in section 3(42) of ERISA.


 


5.20          Orange
142 Agreement. All representations made in the Orange 142 Acquisition Agreement by the parties thereto are true, correct and complete
in all material respects.


 


SECTION 6. INSURANCE; INDEMNIFICATION


 


6.1           Coverage.
The Borrower shall cause to be carried and maintained commercial general liability insurance, on an occurrence form, against risks
customarily insured against in the Borrower’s line of business. Such risks shall include the risks of bodily injury, including
death, property damage, personal injury, advertising injury, and contractual liability per the terms of the indemnification
agreement found in Section 6.3. The Borrower must maintain a minimum of $2,000,000 of commercial general liability
insurance for each occurrence (which coverage may be provided in part by an umbrella policy so long as the primary commercial
general liability insurance is in an amount per occurrence at least equal to the greater of $1,000,000 and any threshold amount
before the umbrella coverage is applicable). The Borrower has and agrees to maintain a minimum of $2,000,000 of directors’ and
officers’ insurance for each occurrence and $5,000,000 in the aggregate. So long as there are any Secured Obligations (other
than inchoate indemnity obligations) outstanding, the Borrower shall also cause to be carried and maintained insurance upon the
Collateral, insuring against all risks of physical loss or damage howsoever caused, in an amount not less than the full replacement
cost of the Collateral; provided that such insurance may be subject to standard exceptions and deductibles.


 






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6.2           Certificates.
The Borrower shall deliver to the Agent certificates of insurance that evidence the Borrower’s compliance with its insurance
obligations in Section 6.1 and the obligations contained in this Section 6.2. The Borrower’s insurance
certificate shall identify the Agent is an additional insured for commercial general liability, a loss payee for all risk property
damage insurance, subject to the insurer’s approval, and a loss payee for property insurance and additional insured for
liability insurance for any future insurance that the Borrower may acquire from such insurer. Attached to the certificates of
insurance will be additional insured endorsements for liability and lender’s loss payable endorsements for all risk property
damage insurance. All certificates of insurance will provide for a minimum of 30 days advance written notice to the Agent of
cancellation (other than cancellation for non-payment of premiums, for which 10 days’ advance written notice shall be
sufficient) or any other change adverse to the Agent’s interests. Any failure of the Agent to scrutinize such insurance
certificates for compliance is not a waiver of any of the Agent’s rights, all of which are reserved. The Borrower shall
provide the Agent with copies of each insurance policy, and upon entering or amending any insurance policy required hereunder, the
Borrower shall provide the Agent with copies of such policies and shall promptly deliver to the Agent updated insurance certificates
with respect to such policies.


 


6.3           Indemnity.
The Borrower agrees to indemnify and hold the Agent, the Lenders and their officers, directors, employees, agents, in-house attorneys,
representatives and equity holders (each, an “Indemnified Person”) harmless from and against any and all claims,
costs, expenses, damages and liabilities (including such claims, costs, expenses, damages and liabilities based on liability in tort,
including strict liability in tort), including reasonable attorneys’ fees and disbursements and other costs of investigation or
defense (including those incurred upon any appeal) (collectively, “Liabilities”), that may be instituted or
asserted against or incurred by such Indemnified Person as the result of credit having been extended, suspended or terminated under this
Agreement and the other Loan Documents or the administration of such credit, or in connection with or arising out of the transactions
contemplated hereunder and thereunder, or any actions or failures to act in connection therewith, or arising out of the disposition or
utilization of the Collateral, excluding in all cases Liabilities to the extent resulting solely from any Indemnified Person’s gross
negligence or willful misconduct. The Borrower agrees to pay, and to save the Agent and the Lenders harmless from, any and all liabilities
with respect to, or resulting from any delay in paying, any and all excise, sales or other similar taxes (excluding any Excluded Taxes)
that may be payable or determined to be payable with respect to any of the Collateral or this Agreement. In no event shall the Borrower
or any Indemnified Person be liable on any theory of liability for any special, indirect, consequential or punitive damages (including
any loss of profits, business or anticipated savings). This Section 6.3 shall survive the repayment of indebtedness under,
and otherwise shall survive the expiration or other termination of, this Agreement.


 






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SECTION 7. AFFIRMATIVE COVENANTS
OF THE BORROWER


 


The Borrower agrees as
follows:


 


7.1           Financial
Reports. The Borrower shall furnish to the Agent the financial statements and reports listed hereinafter (the “Financial
Statements”):


 


(a)           as
soon as practicable (and in any event within 45 days) after the end of each calendar quarter (including for such purpose the last fiscal
quarter of the fiscal year), unaudited interim and year-to-date financial statements of DDH and its Subsidiaries as of the end of such
calendar quarter (prepared on a consolidated basis), including balance sheet and related statements of income and cash flows accompanied
by a report detailing any material contingencies (including the commencement of any material litigation by or against the Borrower) or
any other occurrence that could reasonably be expected to have a Material Adverse Effect, certified by DDH’s Chief Executive Officer,
President or Chief Financial Officer to the effect that they have been prepared in accordance with GAAP, except (i) for the absence
of footnotes, and (ii) that they are subject to normal year-end adjustments; as well as the most recent capitalization table for
DDH, including the weighted average exercise price of employee stock options;


 


(b)           as
soon as practicable (and in any event within 90 days) after the end of each fiscal year starting with the 2020 fiscal year, unqualified
Audited Financial Statements of DDH and its Subsidiaries as of the end of such year (prepared on a consolidated basis), including balance
sheet and related statements of income and cash flows, and setting forth in comparative form the corresponding figures for the preceding
fiscal year, certified by a firm of independent certified public accountants selected by DDH and reasonably acceptable to the Agent, accompanied
by any management report from such accountants;


 


(c)            as
soon as practicable (and in any event within 45 days) after the end of each fiscal quarter, commencing with the fiscal quarter ending
December 31, 2020, a Compliance Certificate in the form of Exhibit F;


 


(d)           as
soon as practicable (and in any event within 10 days) after the end of each calendar month, a Monthly Key Performance Indicators Report;


 


(e)            no
later than 90 days after the beginning of each fiscal year beginning with the 2021 fiscal year, a consolidated plan and financial forecast
for DDH and its Subsidiaries for such fiscal year (prepared on a monthly or quarterly basis) including a forecasted consolidated balance
sheet and forecasted consolidated statements of income and cash flows.


 


(f)            promptly
after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statements or reports that DDH has
made available to holders of its Equity Interests and copies of any regular, periodic and special reports or registration statements that
the Borrower files with the Securities and Exchange Commission or any governmental authority that may be substituted therefor, or any
national securities exchange;


 


(g)           promptly
following request therefor, copies of any detailed audit reports, management letters or recommendations submitted to the board of
directors (or the audit committee of the board of directors) of the Borrower by independent accountants in connection with the
accounts or books of the Borrower or any Subsidiary, or any audit of any of them as the Agent or any Lender (through the Agent) may
from time to time reasonably request;


 






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(h)          within
30 days after each meeting of DDH’s board of directors, copies of all notices, minutes, consents and other materials that DDH provides
to its directors in connection with such meetings, and minutes of such meeting; provided that in all cases DDH may
exclude (i) information, minutes and other materials of or pertaining to any closed executive session of a board of directors meeting,
(ii) any attorney-client privileged information and (iii) any information that the board of directors determines in good faith
would give rise to a conflict of interest between DDH, on one hand, and the Agent or the Lenders, on the other hand;


 


(i)           financial
and business projections promptly following their approval by DDH’s Board of Directors, and in any event, within 30 days after the
end of DDH’s fiscal year, together with a summary of material assumptions used to prepare such forecasts, as well as budgets, operating
plans and other financial information reasonably requested by the Agent; and


 


(j)           immediate
notice if the Borrower or any Subsidiary has knowledge that the Borrower, or any Subsidiary or Affiliate of the Borrower, is listed on
the OFAC Lists or (a) is convicted on, (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned
and held over on charges involving money laundering or predicate crimes to money laundering.


 


The Borrower shall not (without the consent
of the Agent, such consent not to be unreasonably withheld or delayed), make any change in its (a) accounting policies or reporting
practices, except in accordance with GAAP or (b) fiscal years or fiscal quarters. The fiscal year of the Borrower shall end on December 31.


 


The
executed Compliance Certificate may be sent via email to the Agent at trading@Silverpeak.com. All Financial Statements required
to be delivered pursuant to clauses (a), (b) and (c) shall be sent via e-mail to trading@Silverpeak.com with a copy to SPCP_Operatons@Silverpeak.com;
provided, that if e-mail is not available or sending such Financial Statements via e-mail is not possible, they shall be faxed to the
Agent at: 646-205-6166, attention Operations.


 


7.2           Financial
Covenants.


 


(a)           Minimum
Liquidity. The Borrower shall maintain a minimum amount of Liquidity as of the last day of each fiscal quarter identified below at
least equal to the target amount of Liquidity (the “Minimum Liquidity Target”) for such day set forth in the
following table:


 


	12/31/2020	$1,000,000
	6/30/2021	$1,100,000
	12/31/2021	$1,250,000
	6/30/2022	$1,350,000
	12/31/2022	$1,500,000
	Each June 30 and December 31
	thereafter	$1,500,000


 






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(b)           Total
Leverage Ratio. The Borrower shall maintain a Total Leverage Ratio as of the last day of each fiscal quarter identified below not
to exceed the applicable ratio (the “Maximum Total Leverage Ratio Target”) for such day set forth in the following
table:


 


	12/31/2020	3.00:1.00
	6/30/2021	2.75:1:00
	12/31/2021	2.50:1:00
	6/30/2022	2.25:1:00
	12/31/2022	2.00:1.00
	Each June 30 and December 31
	thereafter	2.00:1.00


 


(c)           Consolidated
Cash Interest Coverage Ratio. The Borrower shall maintain a Consolidated Cash Interest Coverage Ratio as of the last day of each fiscal
quarter at least equal to the applicable ratio set forth below (the “Minimum Consolidated Cash Interest Coverage Ratio Target”)
for such day set forth in the following table:


 


	12/31/2020	1.25:1.00
	6/30/2021	1.25:1:00
	12/31/2021	1.50:1:00
	6/30/2022	1.75:1:00
	12/31/2022	2.00:1.00
	Each June 30 and December 31
	thereafter	2.00:1.00


 


(d)           Method
of Determination. Compliance with each of the foregoing Financial Covenants shall be determined on the basis of Financial Statements
for the applicable quarter delivered pursuant to Section 7.1(a), as adjusted retroactively in the case of Financial Statements as
of the end of each fiscal year based on Audited Financial Statements subsequently delivered.


 


7.3           Notices.
The Borrower will promptly notify the Agent and each Lender of:


 


(a)           the
occurrence of any Default or Event of Default;


 


(b)           the
filing or commencement of any action, suit, investigation or proceeding by or before any arbitrator or Governmental Authority against
or affecting the Borrower or any Affiliate thereof, including pursuant to any applicable Environmental Laws, that could reasonably be
expected to be adversely determined, and, if so determined, could reasonably be expected to have a Material Adverse Effect;


 


(c)           the
occurrence of any ERISA Event that, either individually or together with any other ERISA Events, could reasonably be expected to have
a Material Adverse Effect;


 


(d)           notice
of any action arising under any Environmental Law or of any noncompliance by the Borrower or any Subsidiary with any Environmental
Law or any permit, approval, license or other authorization required thereunder that, if adversely determined, could reasonably be
expected to have a Material Adverse Effect;


 






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(e)           any
material change in accounting or financial reporting practices by the Borrower or any Subsidiary;


 


(f)           any
material change in the conduct of business pursuant to any Material Contract; and


 


(g)          any
other matter or development that has had or could reasonably be expected to have a Material Adverse Effect.


 


7.4          Preservation
of Existence, Etc. Each Borrower Entity will, and will cause each of its material Subsidiaries to, (a) preserve, renew
and maintain in full force and effect its legal existence and good standing under the laws of the jurisdiction of its organization; (b) take
all reasonable action to maintain all rights, licenses, permits, privileges and franchises necessary or desirable in the normal conduct
of its business, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; and (c) preserve
or renew all of its registered patents, trademarks, trade names and service marks, the non-preservation of which could reasonably be expected
to have a Material Adverse Effect.


 


7.5          Maintenance
of Properties. Each Borrower Entity will, and will cause each of its Subsidiaries to, (a) maintain, preserve and protect
all of its properties and equipment necessary in the operation of its business in good working order and condition (ordinary wear and
tear excepted) and (b) make all necessary repairs thereto and renewals and replacements thereof, except to the extent that the failure
to do so could not reasonably be expected to have a Material Adverse Effect.


 


7.6          Payment
of Obligations. Each Borrower Entity will, and will cause each of its Subsidiaries to, pay, discharge or otherwise satisfy
as the same shall become due and payable, all of its obligations and liabilities, including Tax liabilities, unless the same are being
contested in good faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained
by such Borrower Entity or such Subsidiary, except to the extent that the failure to do so could not reasonably be expected to have a
Material Adverse Effect.


 


7.7          Management
Rights; Inspections. The Borrower shall permit, and shall cause each Subsidiary to permit, any representative that the Agent
or any Lender authorizes, including its attorneys and accountants, during normal business hours and upon not less than three Business
Days’ notice, to inspect the Collateral and examine and make copies and abstracts of the books of account and records of the Borrower
and its Subsidiaries, and to discuss its affairs, finances and accounts with directors, officers, and independent public accountants,
all at reasonable times and upon reasonable notice during normal business hours; provided, however, that so long as no Event
of Default has occurred and is continuing, such examinations shall be limited to no more often than twice per fiscal year. In addition,
any such representative shall have the right to meet with management and officers of the Borrower to discuss such books of account and
records.


 






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7.8          Board
Observer. DDH shall allow one representative designated by the Agent (the “Board Observer”) to attend
and observe, in a non-voting capacity, with speaking rights, all meetings of its board of directors (or the equivalent) (the “Board”).
The Board shall hold meetings in accordance with DDH’s organizational documents and applicable law. The Board Observer shall receive,
at the same time, and in the same form, as they are furnished to the Board, (a) notice of (i) all regular or special meetings
of the Board and (ii) the adoption of any material resolutions by the Board or committee by written consent, (b) all notices,
documents and information furnished to the members of the Board and (c) copies of the minutes of all such meetings; provided that
in all cases DDH may exclude, and the Board Observer shall be excluded from proceedings relating to, (i) any closed executive
session of a board of directors meeting, (ii) any attorney-client privileged information and (iii) any information that the
Board determines in good faith would give rise to a conflict of interest between DDH, on one hand, and the Agent or the Lenders, on the
other hand.


 


7.9          Further
Assurances. The Borrower shall from time to time identify new Intellectual Property owned or leased by the Borrower and its
Qualified Subsidiaries by notice to the Agent amending Exhibit C, any equity interests in Subsidiaries hereafter acquired,
and any other material new assets acquired by the Borrower, and shall prepare, execute, deliver and file, upon the reasonable request
of the Agent, any financing statements, security agreements, collateral assignments, notices, control agreements, filings with the U.S.
Patent and Trademark Office or U.S. Copyright Office, stock certificates and accompanying stock powers or other documents to perfect or
give the highest priority to the Agent’s Lien on the Collateral. The Borrower shall from time to time procure any instruments or
documents as may be reasonably requested by the Agent, and take all further action that may be necessary, or that the Agent may reasonably
request, to perfect and protect the Liens granted hereby and thereby. In addition, and for such purposes only, the Borrower hereby authorizes
the Agent to execute and deliver on behalf of the Borrower and to file such financing statements (including an indication that the financing
statement covers “all assets or all personal property” of the Borrower in accordance with Section 9-504 of the UCC),
collateral assignments, notices, control agreements, security agreements and other documents without the signature of the Borrower either
in the Agent’s name or in the name of the Agent as agent and attorney-in-fact for the Borrower. The Borrower shall protect and defend
the Borrower’s title to the Collateral and the Agent’s Lien thereon against all Persons claiming any interest adverse to the
Borrower or the Agent other than Permitted Liens.


 






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7.10         Collateral.
The Borrower shall at all times keep the Collateral, the Intellectual Property and all other property and assets used in the
Borrower’s business or in which the Borrower now or hereafter holds any interest free and clear from any legal process or
Liens whatsoever (except for Permitted Liens), and shall give the Agent prompt written notice of any legal process affecting the
Collateral, the Intellectual Property, such other property and assets, or any Liens thereon, provided however, that the Collateral
and such other property and assets may be subject to Permitted Liens except that there shall be no Liens whatsoever on Intellectual
Property (other than Liens arising under the East West Loan Documents). The Borrower shall not agree with any Person other than the
Agent or the Lenders to encumber its property, except for Permitted Liens. The Borrower shall not enter into or suffer to exist or
become effective any agreement that prohibits or limits the ability of any Borrower Entity to create, incur, assume or suffer to
exist any Lien upon any of its Intellectual Property, whether now owned or hereafter acquired, to secure the Borrower’s
obligations under the Loan Documents to which it is a party other than (a) this Agreement and the other Loan Documents,
(b) any agreements governing any purchase money Liens or capital lease obligations otherwise permitted hereby (in which case,
any prohibition or limitation shall only be effective against the assets financed thereby), (c) the East West Loan Documents,
and (d) customary restrictions on the assignment of leases, licenses and other agreements. The Borrower shall, and shall cause
its Subsidiaries to, protect and defend its title to its assets from and against all Persons claiming any interest adverse to the
Borrower or such Subsidiary, and the Borrower shall cause its Subsidiaries at all times to keep such Subsidiary’s property and
assets free and clear from any legal process or Liens whatsoever (except for Permitted Liens; provided, however, that
there shall be no Liens whatsoever on Intellectual Property other than pursuant to the East West Loan Documents), and shall give the
Agent prompt written notice of any legal process affecting such Subsidiary’s assets. The Borrower shall use commercially
reasonable efforts to deliver to the Agent fully-executed landlord consents and waivers from each landlord of the Borrower within 60
days following the date of this Agreement, such consents and waivers to be in form and substance reasonably acceptable to the
Agent.


 


7.11         Taxes.
Except where the failure would not reasonably be expected to have a Material Adverse Effect, the Borrower and its Subsidiaries shall pay
when due all U.S. federal and other material Taxes, fees or other charges of any nature whatsoever (together with any related interest
or penalties) now or hereafter imposed or assessed against the Borrower, the Agent, the Lenders or the Collateral or upon the Borrower’s
ownership, possession, use, operation or disposition thereof or upon the Borrower’s rents, receipts or earnings arising therefrom.
The Borrower shall file, on or before the due date therefor, all personal property tax returns in respect of the Collateral. Notwithstanding
the foregoing, the Borrower may contest, in good faith and by appropriate proceedings, taxes for which the Borrower maintains adequate
reserves therefor in accordance with GAAP.


 


7.12         Deposit
Accounts. Neither the Borrower nor any Qualified Subsidiary shall maintain any Deposit Accounts, or accounts holding Investment
Property, except with respect to which the Agent has notice, setting forth the information included for Accounts in Exhibit D.
Each Deposit Account maintained by the Borrower or any Qualified Subsidiary shall be subject to an Account Control Agreement satisfactory
in form and substance satisfactory to the Agent, provided that no Account Control Agreement shall be required during the first 30 days
after the Closing Date with respect to Deposit Accounts identified on Exhibit D hereto with Silicon Valley Bank, Investar
Bank or JPMorgan Chase (the “Transition Deposit Accounts”). Within 30 days after the Closing Date, the Borrower
or Qualified Subsidiary maintaining any Transition Deposit Account shall either (i) transfer all funds in such Transition Deposit
Account to another Deposit Account then subject to an Account Control Agreement satisfactory in form and substance to the Agent and close
such Transition Deposit Account or (ii) enter into an Account Control Agreement satisfactory in form and substance to the Agent with
respect to such Transition Deposit Account.


 


7.13         Subsidiaries.
The Borrower shall notify the Agent of each Subsidiary of DDH formed or acquired subsequent to the Closing Date and, within 15 days of
formation or acquisition (or such later date on which such Subsidiary becomes a Qualified Subsidiary), shall cause any such Subsidiary
that is a Qualified Subsidiary (other than a CFC or other entity, substantially all of the assets of which consist of equity or debt interests
in one or more CFCs) to execute and deliver to the Agent a Joinder Agreement.


 






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7.14         Use
of Proceeds. The Borrower agrees that the proceeds of the Loans shall be used solely (a) to pay the cash portion of the
purchase price payable in connection with the Orange 142 Acquisition, (b) to pay related fees and expenses in connection with this
Agreement and the Orange 142 Acquisition and (c) for working capital and general corporate purposes. The proceeds of the Loans will
not be used in violation of Anti-Corruption Laws or applicable Sanctions.


 


7.15         Compliance
with Laws.


 


(a)           The
Borrower shall maintain, and shall cause its Subsidiaries to maintain, compliance in all material respects with all applicable laws, rules or
regulations (including any law, rule or regulation with respect to the making or brokering of loans or financial accommodations),
and shall, or cause its Subsidiaries to, obtain and maintain all required governmental authorizations, approvals, licenses, franchises,
permits or registrations reasonably necessary in connection with the conduct of the Borrower’s business, except where the failure
to maintain any foreign qualification in a state of the United States could not reasonably be expected to have a Material Adverse Effect.


 


(b)          Neither
the Borrower nor any of its Subsidiaries shall, nor shall the Borrower or any of its Subsidiaries permit any Affiliate to, directly or
indirectly, knowingly enter into any documents, instruments, agreements or contracts with any Person listed on the OFAC Lists. Neither
the Borrower nor any of its Subsidiaries shall, nor shall the Borrower or any of its Subsidiaries, permit any Affiliate to, directly or
indirectly, (i) conduct any business or engage in any transaction or dealing with any Blocked Person, including, without limitation,
the making or receiving of any contribution of funds, goods or services to or for the benefit of any Blocked Person, (ii) deal in,
or otherwise engage in any transaction relating to, any property or interests in property blocked pursuant to Executive Order No. 13224
or any similar executive order or other Anti-Terrorism Law, or (iii) engage in or conspire to engage in any transaction that evades
or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in Executive Order No. 13224
or other Anti-Terrorism Law.


 


(c)           The
Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries
and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its
Subsidiaries and their respective officers and employees and to the knowledge of the Borrower its directors and agents, are in compliance
with Anti-Corruption Laws and applicable Sanctions in all material respects.


 


(d)          None
of the Borrower, any of its Subsidiaries or any of their respective directors, officers or employees, or to the knowledge of the Borrower,
any agent for the Borrower or its Subsidiaries that will act in any capacity in connection with or benefit from the credit facility established
hereby, is a Sanctioned Person. None of the Loan, use of proceeds or other transaction contemplated by this Agreement will violate Anti-Corruption
Laws or applicable Sanctions.


 






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7.16         Environmental
Matters. Except to the extent that the failure to do so could not reasonably be expected to have a Material Adverse Effect,
the Borrower will, and will cause each of its Subsidiaries to, (a) comply with all Environmental Laws, (b) obtain, maintain
in full force and effect and comply with any permits, licenses or approvals required for the facilities or operations of the Borrower
or any of its Subsidiaries, and (c) conduct and complete any investigation, study, sampling or testing, and undertake any corrective,
cleanup, removal, response, remedial or other action necessary to identify, report, remove and clean up all Hazardous Materials present
or released at, on, in, under or from any of the facilities or real properties of the Borrower or any of its Subsidiaries.


 


7.17         Intellectual
Property. The Borrower shall (a) protect, defend and maintain the validity and enforceability of its Intellectual Property;
(b) promptly advise the Agent in writing of material infringements of its Intellectual Property; and (c) not allow any Intellectual
Property material to the Borrowers’ business to be abandoned, forfeited or dedicated to the public without the Agent’s written
consent. If a Borrower Entity (a) obtains any Patent, registered Trademark, registered Copyright, registered mask work, or any pending
application for any of the foregoing, whether as owner, licensee or otherwise, or (b) applies for any Patent or the registration
of any Trademark, then the Borrower shall immediately provide written notice thereof to the Agent and shall execute such intellectual
property security agreements and other documents and take such other actions as the Agent may request in its good faith business judgment
to perfect and maintain a first priority perfected security interest in favor of the Agent in such property. If the Borrower decides to
register any Copyrights or mask works in the United States Copyright Office, the Borrower shall: (x) provide the Agent with at least
15 days prior written notice of the Borrower’s intent to register such Copyrights or mask works together with a copy of the application
it intends to file with the United States Copyright Office (excluding exhibits thereto); (y) execute an intellectual property security
agreement and such other documents and take such other actions as the Agent may request in its good faith business judgment to perfect
and maintain a first priority perfected security interest in favor of the Agent in the Copyrights or mask works intended to be registered
with the United States Copyright Office; and (z) record such intellectual property security agreement with the United States Copyright
Office contemporaneously with filing the Copyright or mask work application(s) with the United States Copyright Office. The Borrower
shall promptly provide to the Agent copies of all applications that it files for Patents or for the registration of Trademarks, Copyrights
or mask works, together with evidence of the recording of the intellectual property security agreement required for the Agent to perfect
and maintain a first priority perfected security interest in such property. The Borrower shall be the sole owner or licensee of any such
further Intellectual Property that may be relevant to the Borrower’s business.


 


7.18         Books
and Records. The Borrower will, and will cause each of its Subsidiaries to, maintain proper books of record and account, in
which full, true and correct entries in conformity with GAAP consistently applied shall be made of all financial transactions and matters
involving the assets and business of the Borrower or such Subsidiary, as the case may be


 


7.19         Transactions
with Affiliates or Other Related Persons. The Borrower shall not and shall not permit any Subsidiary to, directly or
indirectly, enter into or permit to exist any transaction of any kind with any Affiliate of the Borrower or such Subsidiary or any
Other Related Person with respect thereto on terms that are less favorable to the Borrower or such Subsidiary, as the case may be,
than those that might be obtained in an arm’s length transaction from a Person who is not an Affiliate of the Borrower or such
Subsidiary or an Other Related Person with respect thereto.


 






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7.20         Material
Contracts. All Material Contracts of the Borrower are identified on Exhibit E. Except as identified in Exhibit H,
no material contracts of the Borrower prohibit the pledge or assignment thereof by the Borrower.


 


SECTION 8. NEGATIVE COVENANTS OF
THE BORROWER


 


The Borrower agrees as
follows:


 


8.1          Restricted
Payments. The Borrower shall not, and shall not allow any Subsidiary to, (a) repurchase or redeem any class of stock or other
Equity Interest other than (i) pursuant to employee, director or consultant repurchase plans or other similar agreements; provided,
however, in each case (other than any such repurchase or redemption in the ordinary course of business in connection with an employee
incentive plan) the repurchase or redemption price does not exceed the original consideration paid for such stock or Equity Interest,
(ii) the conversion of any of its convertible securities into other securities of the Borrower pursuant to the terms of such convertible
securities or (iii) the payment of cash in lieu of fractional shares upon the conversion of any such convertible securities, not
to exceed $500,000 in the aggregate; (b) declare or pay any cash dividend or make a cash distribution on any class of stock or other
Equity Interest, except that a Subsidiary may pay dividends or make distributions to the Borrower and the Borrower may make Tax Distributions
to its direct and indirect equityholders; (c) lend money to any employees, officers or directors or guarantee the payment of any
such loans granted by a third party in excess of $250,000 in the aggregate at any one time outstanding; (d) waive, release or forgive
any Indebtedness owed by any employees, officers or directors in excess of $250,000 in the aggregate, or (e) make any payments on
Subordinated Debt (collectively, “Restricted Payments”) unless:


 


(a)           There
shall not than be an Event of Default or Default that has occurred and is continuing, and


 


(b)           Both
before and after giving effect to such Restricted Payment, (i) each of the Financial Covenants shall be satisfied and (ii) the
Borrower’s Total Debt shall be less than 2.5 times its EBITDA over the preceding 12 month period reported in its most recent quarterly
or annual Financial Statements.


 


8.2           Additional
Indebtedness. The Borrower shall not create, incur, assume, guarantee or be or remain liable with respect to any Indebtedness (other
than Permitted Indebtedness), or permit any Subsidiary so to do, unless


 


(a)           There
is not then an Event of Default or Default that has occurred and is continuing;


 


(b)          Such
Indebtedness constitutes Subordinated Indebtedness and matures after the Scheduled Maturity Date; and


 






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(c)           After
giving effect to such additional Indebtedness, the Borrower’s Total Debt is less than 2.5 times its EBITDA over the preceding 12
month period as reported in its most recent quarterly or annual Financial Statements.


 


8.3          Liens.
The Borrower will not, nor will it permit any Subsidiary to, create, incur, assume or suffer to exist any Lien upon any of its property,
assets or revenues, whether now owned or hereafter acquired, other than Permitted Liens.


 


8.4          Dispositions.
The Borrower will not, and will not permit any Subsidiary to, make any Disposition or enter into any agreement to make any Disposition
without the prior approval of the Agent (other than transfers or other Dispositions of Inventory in the ordinary course of business),
except Dispositions which constitute:


 


(a)           Dispositions
of worn-out, obsolete or surplus Equipment, whether now owned or hereafter acquired, at fair market value (to the extent determinable
in a ready market therefor) in the ordinary course of business;


 


(b)          Dispositions
of Equipment or real property to the extent that (i) such property is exchanged for credit against the purchase price of similar
replacement property or (ii) the proceeds of such Disposition (net of reasonable and documented expenses incurred in connection with
such Disposition) are reasonably promptly applied to the purchase price of such replacement property;


 


(c)           Dispositions
of property by any Subsidiary to the Borrower or to a Wholly-Owned Subsidiary of the Borrower;


 


(d)          Dispositions
permitted by Section 8.5;


 


(e)           Licenses,
subleases or sublicenses or similar arrangements (including the provision of open source software under an open source license) for use
of Intellectual Property granted in the ordinary course of business and on ordinary commercial terms that do not interfere in any material
respect with the business of the Borrower and its Subsidiaries;


 


(f)           Dispositions
of Intellectual Property rights that are no longer used or useful in the business of the Borrower and its Subsidiaries;


 


(g)          The
discount, write-off or Disposition of accounts receivable overdue by more than 90 days or the sale of any such accounts receivable for
the purpose of collection to any collection agency, in each case in the ordinary course of business;


 


(h)          Restricted
Payments permitted by Section 8.1; or


 


(i)           Dispositions
by the Borrower and its Subsidiaries not otherwise permitted under this Section;


 


provided that
the aggregate book value of all such property Disposed of in any fiscal year (other than pursuant to clauses (c), (d), (e) and
(h)) shall not exceed $250,000.


 






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8.5          Fundamental
Changes. No Borrower Entity will, nor will it permit any Subsidiary to, merge, dissolve, liquidate, consolidate with or into another
Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to or in favor of any Person, except that, so long as no Default or Event of Default exists or would result
therefrom:


 


(a)          any
Subsidiary may merge with (i) any Borrower Entity, provided that the Borrower Entity shall be the continuing or surviving
Person, or (ii) any one or more other Subsidiaries that are Qualified Subsidiaries, provided that when any Wholly-Owned Subsidiary
is merging with another Subsidiary, a Wholly-Owned Subsidiary shall be the continuing or surviving Person;


 


(b)          any
Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to a Borrower Entity or to
another Subsidiary that is a Qualified Subsidiary; provided that if the transferor in such a transaction is a Wholly-Owned Subsidiary,
then the transferee shall either be the Borrower or another Wholly-Owned Subsidiary;


 


(c)           each
Borrower Entity and its Subsidiaries may make Dispositions permitted by Section 8.4;


 


(d)          any
Permitted Investment may be structured as a merger, consolidation or amalgamation; and


 


(e)          any
Subsidiary may dissolve, liquidate or wind up its affairs or merge into another Subsidiary if it owns no material assets, engages in no
business and otherwise has no activities other than activities related to the maintenance of its existence and good standing.


 


8.6          Material
Contracts. The Borrower will not amend, modify or waive any provision of any of the Material Contracts (other than amendments
that could not reasonably be expected to result in a Material Adverse Effect or otherwise adversely affect the Agent or any of the Lenders),
or assign or otherwise transfer any rights or obligations thereunder, without the consent of the Agent, and shall duly enforce the provisions
thereof in accordance with their respective terms.


 


8.7          Investments.
The Borrower shall not directly or indirectly acquire or own, or make any Investment in or to any Person, or permit any of its Subsidiaries
so to do, other than Permitted Investments.


 


8.8          ERISA.
The Borrower, the Guarantor and their ERISA Affiliates shall not have any liability under or with respect to Title IV of ERISA.


 


8.9          Certain
Restrictive Agreements. The Borrower will not, and will not permit any Subsidiary to, enter into any Contractual
Obligation (other than (A) this Agreement or any other Loan Document and (B) the East West Loan Documents) that, directly
or indirectly, (a) limits the ability of (i) any Subsidiary to pay dividends to the Borrower or to otherwise transfer
property to the Borrower, (ii) any Subsidiary to guarantee Indebtedness of the Borrower or (iii) the Borrower or any
Subsidiary to create, incur, assume or suffer to exist Liens on property of such Person to secure the Secured Obligations; or
(b) requires the grant of a Lien to secure an obligation of such Person if a Lien is granted to secure another obligation of
such Person.


 






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8.10         Corporate
Changes. No Borrower Entity, nor any Subsidiary thereof, shall change its corporate name, legal form or jurisdiction of formation
without 20 days’ prior written notice to the Agent. No Borrower Entity, nor any Subsidiary thereof, shall suffer a Change in Control.
No Borrower Entity, nor any Subsidiary thereof, shall relocate its chief executive office or its principal place of business unless: (i) it
has provided prior written notice to the Agent; and (ii) such relocation shall be within the continental United States of America.
No Borrower Entity nor any Qualified Subsidiary shall relocate any item of Collateral (other than (x) sales of Inventory in the ordinary
course of business, (y) relocations of Equipment having an aggregate value of up to $500,000 in any fiscal year, and (z) relocations
of Collateral from a location described on Exhibit B to another location described on Exhibit B) unless (i) it
has provided prompt written notice to the Agent, (ii) if immediately prior to relocation the Collateral is in the United States,
such relocation is within the continental United States of America and, (iii) if such relocation is to a third party bailee, and
such Collateral has a value, individually or in the aggregate, in excess of $250,000, it has delivered a bailee agreement in form and
substance reasonably acceptable to the Agent.


 


8.11         Changes
in Nature of the Business. The Borrower will not, and will not permit any Subsidiary to, engage to any material extent in any
business other than those businesses conducted by the Borrower and its Subsidiaries on the date hereof or any business reasonably related
or incidental thereto or representing a reasonable expansion thereof.


 


8.12         East
West Credit Agreement. The Borrower will not amend the East West Credit Agreement in any material respect (including, in particular
and without limitation, the advance rate thereunder, the interest rate payable thereunder, the total facility amount or the committed
portion thereof) without the consent of the Agent, nor will it borrow in excess of $1,000,000 thereunder without the consent of the Agent.


 


8.13         Orange
142 Acquisition Agreement. The Borrower will not amend the Orange 142 Acquisition Agreement in any manner that would result
in a Material Adverse Effect or otherwise adversely affect the Agent or the Lenders without the consent of the Agent.


 


SECTION 9. EVENTS OF DEFAULT


 


The occurrence of any
one or more of the following events shall be an “Event of Default”:


 


9.1          Payments.
The Borrower fails to pay any amount due under this Agreement or any of the other Loan Documents on the due date; provided, however,
that an Event of Default shall not occur on account of a failure to pay due solely to an administrative or operational error of the Agent
or the Lenders or the Borrower’s bank if the Borrower had the funds to make the payment when due and makes the payment within ten
Business Days following the Borrower’s knowledge of such failure to pay; or


 






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9.2          Covenants.
The Borrower breaches or defaults in the performance of any covenant or Secured Obligation under this Agreement, or any of the other
Loan Documents or any other agreement among the Borrower, the Agent and the Lenders, and (a) with respect to a default under
any covenant under this Agreement (other than under Section 6, Section 7.4, Section 7.10, Section 8
or Section 11), any other Loan Document or any other agreement among the Borrower, the Agent and the Lenders, such
default continues for more than 30 days (or, in the case of a breach of a Financial Covenants under Section 7.2, within
30 Business Days) after the earlier of the date on which (i) the Agent or the Lenders has given notice of such default to the
Borrower, and (ii) the Borrower has actual knowledge of such default, or (b) with respect to a default under any of Section 6, Section 7.4, Section 7.10, Section 8
or Section 11, the occurrence of such default;


 


9.3          Representations.
Any representation or warranty made by the Borrower or any Guarantor in any Loan Document shall have been false or misleading in any material
respect when made or when deemed made; or


 


9.4          Insolvency.
The Borrower (A) (i) shall make an assignment for the benefit of creditors; or (ii) shall be unable to pay its debts as
they become due or shall become insolvent; or (iii) shall file a voluntary petition in bankruptcy; or (iv) shall file any petition,
answer, or document seeking for itself any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar
relief under any present or future statute, law or regulation pertinent to such circumstances; or (v) shall seek or consent to or
acquiesce in the appointment of any trustee, receiver, or liquidator of the Borrower or of all or any substantial part (i.e., 33-1/3%
or more) of the assets or property of the Borrower; or (vi) shall cease operations of its business as its business has normally been
conducted, or terminate substantially all of its employees; or (vii) the Borrower or its directors or majority shareholders shall
take any action initiating any of the foregoing actions described in clauses (i) through (vi); or (B) either (i) 60 days
shall have expired after the commencement of an involuntary action against the Borrower seeking reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any present or future statute, law or regulation, without such action being
dismissed or all orders or proceedings thereunder affecting the operations or the business of the Borrower being stayed; or (ii) a
stay of any such order or proceedings shall thereafter be set aside and the action setting it aside shall not be timely appealed; or (iii) the
Borrower shall file any answer admitting or not contesting the material allegations of a petition filed against the Borrower in any such
proceedings; or (iv) the court in which such proceedings are pending shall enter a decree or order granting the relief sought in
any such proceedings; or (v) 60 days shall have expired after the appointment, without the consent or acquiescence of the Borrower,
of any trustee, receiver or liquidator of the Borrower or of all or any substantial part of the properties of the Borrower without such
appointment being vacated; or


 


9.5          Attachments;
Judgments. Any portion of the Borrower’s assets is attached or seized, or a levy is filed against any such assets, or
a judgment or judgments is/are entered for the payment of money (not covered by independent third party insurance as to which liability
has not been rejected by such insurance carrier), individually or in the aggregate, of at least $250,000, and such judgment remains unsatisfied,
unvacated or unstayed for a period of 30 days after the entry thereof, or the Borrower is enjoined or in any way prevented by court order
from conducting any part of its business; or


 


9.6          Material
Contracts. The Borrower shall default in any material respect under the terms of any Material Contract; or


 






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9.7          Other
Obligations. (i) The Borrower or any Subsidiary shall fail to make any payment when due (whether by scheduled maturity,
required prepayment, acceleration, demand, or otherwise) in respect of any Indebtedness (other than Indebtedness under the Loan Documents)
having an aggregate principal amount of more than $250,000, in each case beyond the applicable grace period with respect thereto, if any;
or (ii) the Borrower or any Subsidiary shall fail to observe or perform any other agreement or condition relating to any such Indebtedness
or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event occurs, the effect of which default
or other event is to cause, or to permit the holder or holders or beneficiary or beneficiaries of such Indebtedness (or a trustee or agent
on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness
to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease
or redeem such Indebtedness to be made, prior to its stated maturity; provided that (x) this Section 9.7 shall
not apply to 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 and such Indebtedness
is repaid when required under the documents providing for such documents and (y) the events described in clauses (i) and (ii) above
shall not give rise to any Default or Event of Default if the nonpayment or nonperformance, as applicable, is the result of a dispute
being contested in good faith by appropriate proceedings; or


 


9.8          Impermissible
Assignment. The Borrower shall assign, or purport to assign, all or any portion of its rights and obligations under any Loan
Document except as contemplated by this Agreement; or


 


9.9          Repudiation.
The Borrower shall repudiate any Loan Document or assert that any Loan Document is not binding upon it; or


 


9.10         Change
in Control. A Change in Control shall occur without the prior consent of the Agent; or


 


9.11         Key
Employees. Any Key Employee shall cease to be actively employed by the Borrower or shall cease to have primary responsibility
for managing the operations of the Borrower and shall not have been replaced by a successor satisfactory to the Agent within 30 days;
or


 


9.12         Investment
Company. Any Borrower Entity shall become an “investment company” or a company “controlled by” an “investment
company” within the meaning of the Investment Company Act of 1940, as amended; or


 


9.13         Perfected
Security Interest. The Agent shall cease to have a first priority perfected security interest (subject only to Permitted Liens)
in all or any portion of the Collateral; or


 


9.14         Statutory
Liens. The imposition of any (i) federal or state tax liens (including without limitation by the Internal Revenue Service
or the Pension Benefit Guaranty Corporation) against the Borrower, or (ii) ERISA liens against the Borrower, and any such condition
under clause (i) or (ii) is not cured within fifteen (15) Business Days; or


 






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9.15         Change
in Conduct of Business. The Borrower shall cease conducting its business as conducted on the Closing Date in any material respect.


 


SECTION 10. REMEDIES


 


10.1         General.
Upon and during the continuance of any one or more Events of Default, (i) the Agent may, and at the direction of the Required the
Lenders shall, accelerate and demand payment of all or any part of the Secured Obligations together with a Prepayment Charge and declare
them to be immediately due and payable (provided, that upon the occurrence of an Event of Default of the type described in Section 9.4,
all of the Secured Obligations shall automatically be accelerated and made due and payable, in each case without any further notice or
act), (ii) the Agent may, at its option, sign and file in any Borrower Entity’s name any and all collateral assignments, notices,
control agreements, security agreements and other documents it deems necessary or appropriate to perfect or protect the repayment of the
Secured Obligations, and in furtherance thereof, the Borrower hereby grants the Agent an irrevocable power of attorney coupled with an
interest, and (iii) the Agent may notify any of the Borrower’s account debtors to make payment directly to the Agent, compromise
the amount of any such account on the Borrower’s behalf and endorse the Agent’s name without recourse on any such payment
for deposit directly to the Agent’s account. The Agent may, and at the direction of the Required Lenders shall, exercise all rights
and remedies with respect to the Collateral under the Loan Documents or otherwise available to it under the UCC and other applicable law,
including the right to release, hold, sell, lease, liquidate, collect, realize upon, or otherwise dispose of all or any part of the Collateral
and the right to occupy, utilize, process and commingle the Collateral. All the Agent’s rights and remedies shall be cumulative
and not exclusive.


 


10.2         Equity
Cure. Subject to the last sentence of this Section 10.2, the Borrower may cure (and shall be deemed to have cured)
an Event of Default arising out of a breach of any of the financial covenants set forth in clauses (a), (b) or (c) of Section 7.2
(the “Specified Financial Covenants”) if (i) the Borrower receives, within 15 Business Days after the date on
which the Specified Financial Covenants are first required to be tested pursuant to the terms hereof, cash proceeds in an amount which,
if treated as income for the preceding fiscal quarter, would result in compliance with such Specified Financial Covenants, and (ii) the
Agent receives written notice from the Borrower that such payment has been made and that it is to be deemed an Equity Cure hereunder.
Upon any Equity Cure of a Specified Financial Covenant, any Event of Default that occurred and is continuing from a breach of such Specified
Financial Covenant shall be deemed cured with no further action required by the Agent or the Lender. An Equity Cure may not be used to
cure an Event of Default more than twice in any calendar year (or be in an aggregate amount of such cash proceeds in any calendar year
of more than $2,000,000), or more than four times during the term of this Agreement (including any extension thereof).


 






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10.3         Collection;
Foreclosure. Upon the occurrence and during the continuance of any Event of Default, the Agent may, and at the direction
of the Required Lenders shall, at any time or from time to time, apply, collect, liquidate, sell in one or more sales, lease or
otherwise dispose of, any or all of the Collateral, in its then condition or following any commercially reasonable preparation or
processing, in such order as the Agent may elect. Any such sale may be made either at public or private sale at its place of
business or elsewhere. The Borrower agrees that any such public or private sale may occur upon 10 calendar days’ prior written
notice to the Borrower. The Agent may require the Borrower to assemble the Collateral and make it available to the Agent at a place
designated by the Agent that is reasonably convenient to the Agent and the Borrower. The proceeds of any sale, disposition or other
realization upon all or any part of the Collateral shall be applied by the Agent in the following order of priorities:


 


First,
to the Agent and the Lenders in an amount sufficient to pay in full the Agent’s and the Lenders’ reasonable costs and professionals’
and advisors’ fees and expenses as described in Section 11.11;


 


Second,
to the Lenders in an amount equal to the then unpaid amount of the Secured Obligations (including principal and interest at the Default
Interest Rate), in such order and priority as the Agent may choose in its sole discretion; and


 


Finally,
after the full and final payment in Cash of all of the Secured Obligations (other than inchoate obligations), to any creditor holding
a junior Lien on the Collateral, or to the Borrower or its representatives or as a court of competent jurisdiction may direct.


 


The Agent shall be deemed to have acted reasonably
in the custody, preservation and disposition of any of the Collateral if it complies with the obligations of a secured party under the
UCC.


 


10.4         No
Waiver. The Agent shall be under no obligation to marshal any of the Collateral for the benefit of the Borrower or any other
Person, and the Borrower expressly waives all rights, if any, to require the Agent to marshal any Collateral.


 


10.5         Cumulative
Remedies. The rights, powers and remedies of the Agent hereunder shall be in addition to all rights, powers and remedies given
by statute or rule of law and are cumulative. The exercise of any one or more of the rights, powers and remedies provided herein
shall not be construed as a waiver of or election of remedies with respect to any other rights, powers and remedies of the Agent.


 


SECTION 11. MISCELLANEOUS


 


11.1         Severability.
Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement shall be prohibited by or invalid under such law, such provision shall be ineffective only
to the extent and duration of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions
of this Agreement.


 






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11.2          Notice.
Except as otherwise provided herein, any notice, demand, request, consent, approval, declaration, service of process or other communication
(including the delivery of Financial Statements) that is required, contemplated, or permitted under the Loan Documents or with respect
to the subject matter hereof shall be in writing, and shall be deemed to have been validly served, given, delivered, and received upon
the earlier of: (i) the day of transmission by electronic mail or hand delivery or delivery by an overnight express service or overnight
mail delivery service; or (ii) the third calendar day after deposit in the United States of America mails, with proper first class
postage prepaid, in each case addressed to the party to be notified as follows:


 


		(a)	If to the Agent:



 


SILVERPEAK CREDIT PARTNERS, LP 


40 West 57th Street
- 29th Floor 


New York, NY 10019 


email: trading@Silverpeak.com 


Telephone: 212-716-2000


 


		(b)	If to the Lenders:



 


SILVERPEAK CREDIT LENDER LLC 


c/o SILVERPEAK CREDIT PARTNERS,
LP 


40 West 57th Street
- 29th Floor 


New York, NY 10019 


email: trading@Silverpeak.com 


Telephone: 212-716-2000


 


		(c)	If to any Borrower Entity:



 


DIRECT DIGITAL HOLDINGS, LLC. 


1233 West Loop South, Suite 1170 


Houston, TX 77027 


Attention: Keith Smith and Mark
Walker 


email:      ksmith@directdigitalholdings.com 


 mwalker@directdigitalholdings.com 


Telephone: 713-540-4545


 


or to such other address as each party may
designate for itself by like notice.


 


11.3         Entire
Agreement; Amendments.


 


(a)           This
Agreement and the other Loan Documents constitute the entire agreement and understanding of the parties hereto in respect of the subject
matter hereof and thereof, and supersede and replace in their entirety any prior proposals, term sheets, non-disclosure or confidentiality
agreements, letters, negotiations or other documents or agreements, whether written or oral, with respect to the subject matter hereof
or thereof (including the Agent’s letter of interest dated May 8, 2018 and related Term Sheet dated the same date).


 






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(b)          Neither
this Agreement, any other Loan Document, nor any terms hereof or thereof may be amended, supplemented or modified except in
accordance with the provisions of this Section 11.3(b). The Required Lenders and the Borrower party to the relevant Loan
Document may, or, with the written consent of the Required Lenders, the Agent and the Borrower party to the relevant Loan Document
may, from time to time, (i) enter into written amendments, supplements or modifications hereto and to the other Loan Documents
for the purpose of adding any provisions to this Agreement or the other Loan Documents or changing in any manner the rights of the
Lenders or of the Borrower hereunder or thereunder or (ii) waive, on such terms and conditions as the Required the Lenders or
the Agent, as the case may be, may specify in such instrument, any of the requirements of this Agreement or the other Loan Documents
or any default or Event of Default and its consequences; provided, however, that no such waiver and no such amendment,
supplement or modification shall (A) forgive the principal amount or extend the Scheduled Maturity Date of the Loan, extend the
scheduled date of any amortization payment in respect of the Loan, or reduce the stated rate of any interest or fee payable
hereunder), in each case without the written consent of each Lender directly affected thereby; (B) eliminate or reduce the
voting rights of any Lender under this Section 11.3(b) without the written consent of such Lender; (C) reduce
any percentage specified in the definition of Required Lenders, consent to the assignment or transfer by the Borrower of any of its
rights and obligations under this Agreement and the other Loan Documents, release all or substantially all of the Collateral or
release a the Borrower from its obligations under the Loan Documents, in each case without the written consent of all Lenders;
(D) amend Section 2.6 without the consent of each Lender; or (E) amend, modify or waive any provision of Section 11.17
without the written consent of the Agent. Any such waiver and any such amendment, supplement or modification shall apply equally to
each Lender and shall be binding upon the Borrower, the Lenders, the Agent and all future holders of the Loans.


 


11.4         No
Strict Construction. The parties hereto 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
hereto 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.


 


11.5         No
Waiver. The powers conferred upon the Agent and the Lenders by this Agreement are solely to protect its rights hereunder and
under the other Loan Documents and its interest in the Collateral and shall not impose any duty upon the Agent or the Lenders to exercise
any such powers. No omission or delay by the Agent or the Lenders at any time to enforce any right or remedy reserved to it, or to require
performance of any of the terms, covenants or provisions hereof by the Borrower at any time designated, shall be a waiver of any such
right or remedy to which the Agent or the Lenders is entitled, nor shall it in any way affect the right of the Agent or the Lenders to
enforce such provisions thereafter.


 


11.6         Survival.
All agreements, representations and warranties contained in this Agreement and the other Loan Documents or in any document delivered pursuant
hereto or thereto shall be for the benefit of the Agent and the Lenders and shall survive the execution and delivery of this Agreement.
Sections 6.3 and 11.14 shall survive the termination of this Agreement.


 


11.7         Successors
and Assigns. The provisions of this Agreement and the other Loan Documents shall inure to the benefit of and be binding on
the Borrower and its permitted assigns (if any). The Borrower shall not assign its obligations under this Agreement or any of the other
Loan Documents without the Agent’s express prior written consent, and any such attempted assignment shall be void and of no effect.
Each Lender may (i) assign or otherwise transfer its rights hereunder and under the other Loan Documents without prior notice to
the Borrower, and all of such rights shall inure to the benefit of such Lender’s successors and assigns, or (ii) grant a participation
in all or a portion of its Advance to another Person. The Agent may, with notice to DDH, assign or otherwise transfer its rights and obligations
hereunder and under the other Loan Documents, and all of such rights and obligations shall inure to the benefit of the Agent’s successors
and assigns.


 






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11.8         Governing
Law. This Agreement and the other Loan Documents have been negotiated and delivered to the Agent and the Lenders in the State
of New York, and shall have been accepted by the Agent and the Lenders in the State of New York. Payment to the Agent and the Lenders
by the Borrower of the Secured Obligations is due in the State of New York. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN AS
EXPRESSLY SET FORTH IN THE LOAN DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, EXCLYUDING
CONFLICTS OF LAWS PRINCIPLES THAT WOULD CAUSE APPLICATION OF LAWS OF ANY OTHER JURISDICTION.


 


11.9         Consent
to Jurisdiction and Venue.


 


(a)           the
Borrower hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of any New York State
court or Federal court of the United States of America sitting in New York City, and any appellate court from any thereof, in any action
or proceeding arising out of or relating to this Agreement or the other Loan Documents, or for recognition or enforcement of any judgment,
and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding
may be heard and determined in such New York State or, to the extent permitted by law, in such Federal court. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on
the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right that the Agent or any Lender may
otherwise have to bring any action or proceeding relating to this Agreement or the other Loan Documents against the Borrower or its properties
in the courts of any jurisdiction.


 


(b)          The
Borrower hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which
it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or
the other Loan Documents in any New York State or Federal court. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.


 


(c)           Each
party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 11.2. Nothing
in this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by law.


 






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11.10      Mutual
Waiver of Jury Trial / Judicial Reference.


 


(a)           Because
disputes arising in connection with complex financial transactions are most quickly and economically resolved by an experienced and
expert Person and the parties wish applicable state and federal laws to apply (rather than arbitration rules), the parties desire
that their disputes be resolved by a judge applying such applicable laws. 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 LITIGATION DIRECTLY OR INDIRECTLY
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS, INCLUDING WITHOUT LIMITATION ANY
CAUSE OF ACTION, CLAIM, CROSS-CLAIM, COUNTERCLAIM, THIRD PARTY CLAIM OR ANY OTHER CLAIM (COLLECTIVELY,
 “CLAIMS”) ASSERTED BY THE BORROWER AGAINST THE AGENT, THE LENDERS OR THEIR RESPECTIVE ASSIGNEES OR BY THE
AGENT, THE LENDERS OR THEIR RESPECTIVE ASSIGNEES AGAINST THE BORROWER. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS
IN THIS SECTION 11.10.


 


(b)          This
waiver extends to all such Claims, including Claims that involve Persons other than the Agent, the Borrower and the Lenders; Claims that
arise out of or are in any way connected to the relationship among the Borrower, the Agent and the Lenders; and any Claims for damages,
breach of contract, tort, specific performance, or any equitable or legal relief of any kind, arising out of this Agreement, any other
Loan Document.


 


11.11      Professional
Fees. The Borrower promises to pay the Agent’s and the Lenders’ fees and expenses necessary to finalize the loan
documentation, including but not limited to reasonable attorneys’ fees, UCC searches, filing costs, and other miscellaneous expenses.
In addition, the Borrower promises to pay any and all reasonable attorneys’ and other professionals’ fees and expenses incurred
by the Agent and the Lenders after the Closing Date in connection with or related to: (a) the Loan; (b) the administration,
collection, or enforcement of the Loan; (c) the amendment or modification of the Loan Documents; (d) any waiver, consent, release,
or termination under the Loan Documents; (e) the protection, preservation, audit, field exam, sale, lease, liquidation, or disposition
of Collateral or the exercise of remedies with respect to the Collateral; (f) any legal, litigation, administrative, arbitration,
or out of court proceeding in connection with or related to the Borrower or the Collateral, and any appeal or review thereof; and (g) any
bankruptcy, restructuring, reorganization, assignment for the benefit of creditors, workout, foreclosure, or other action related to the
Borrower, the Collateral, the Loan Documents, including representing the Agent or the Lenders in any adversary proceeding or contested
matter commenced or continued by or on behalf of the Borrower’s estate, and any appeal or review thereof.


 






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11.12        Confidentiality.
The Agent and the Lenders acknowledge that certain items of Collateral and information provided to the Agent and the Lenders by the
Borrower are confidential and proprietary information of the Borrower, if and to the extent such information either (x) is
marked as confidential by the Borrower at the time of disclosure, or (y) should reasonably be understood to be confidential
(the “Confidential Information”). Accordingly, the Agent and the Lenders agree that any Confidential
Information it may obtain in the course of acquiring, administering, or perfecting the Agent’s security interest in the
Collateral shall not be disclosed to any other Person or entity in any manner whatsoever, in whole or in part, without the prior
written consent of the Borrower, except that the Agent and the Lenders may each disclose any such information: (a) to its own
directors, officers, employees, accountants, counsel and other professional advisors and to its Affiliates, equity owners and
investors if the Agent or any such Lender in its reasonable discretion determines that any such party should have access to such
information in connection with such party’s responsibilities in connection with the Loan or this Agreement or its own
governing documents; provided that such recipient of such Confidential Information either (i) agrees to be bound by the
confidentiality provisions of this paragraph or (ii) is otherwise subject to confidentiality restrictions that reasonably
protect against the disclosure of Confidential Information; (b) if such information is generally available to the public;
(c) if required or appropriate in any report, statement or testimony submitted to any governmental authority having or claiming
to have jurisdiction over the Agent or any such Lender; (d) if required or appropriate in response to any summons or subpoena
or in connection with any litigation, to the extent permitted or deemed advisable by the Agent’s or any such Lender’s
counsel; (e) to comply with any legal requirement or law applicable to the Agent or any such Lender; (f) to the extent
reasonably necessary in connection with the exercise of any right or remedy under any Loan Document, including the Agent’s
sale, lease, or other disposition of Collateral after default; (g) to any participant or assignee of the Agent or any such
Lender or any prospective such participant or assignee; provided that such participant or assignee or prospective participant
or assignee agrees in writing to be bound by this Section prior to disclosure; or (h) otherwise with the prior consent of
the Borrower; provided that any disclosure made in violation of this Agreement shall not affect the obligations of the
Borrower or any of its Affiliates or any guarantor under this Agreement or the other Loan Documents. The Agent’s and the
Lenders’ obligations under this Section 11.12 shall supersede all of their respective obligations under any
nondisclosure agreement with the Borrower existing prior to the Closing Date.


 


11.13       Assignment
of Rights.


 


(a)           The
Borrower acknowledges and understands that the Agent or any Lender may sell and assign all or part of its interest hereunder and under
the Loan Documents to any Person or entity (an “Assignee”). After such assignment the term “the Agent”
or “the Lenders” as used in the Loan Documents shall mean and include such Assignee, and such Assignee shall be vested with
all rights, powers and remedies of the Agent and the Lenders hereunder with respect to the interest so assigned; but with respect to any
such interest not so transferred, the Agent and the Lenders shall retain all rights, powers and remedies hereby given. No such assignment
by the Agent or the Lenders shall relieve the Borrower of any of its obligations hereunder.


 


(b)          The
Agent, acting for this purpose as an agent of the Borrower, shall maintain at one of its offices records of the name and address of, and
the commitments of and the principal amount (and stated interest) of the Loan owing to, each Lender from time to time (the “Register”).
The entries in the Register shall be conclusive, absent manifest error. The Register shall be available for inspection by the Borrower
or any Lender (but only with respect to any entry relating to such Lender’s commitments or Loans) at any reasonable time and from
time to time upon reasonable prior notice. No assignment shall be effective for purposes of this Agreement unless it has been recorded
in the Register as provided in this Section 11.13.


 


(c)           Each
Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a
register on which it enters the name and address of each participant and the principal amounts (and stated interest) of each
participant’s interest in the Loan or other obligations under this Agreement or any other Loan Document (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 the Loan) to any Person except to the extent that such disclosure is necessary to establish that such Loan 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 Agent (in its capacity as Agent) shall have no responsibility for maintaining any Participant Register.


 






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(d)           This
Section 11.13 shall be construed so that the Loans are at all times maintained in “registered form” within the
meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Code and any related regulations (and any successor provisions).


 


11.14        Revival
of Secured Obligations. This Agreement and the Loan Documents shall remain in full force and effect and continue to be effective if
any petition is filed by or against the Borrower for liquidation or reorganization, if the Borrower becomes insolvent or makes an assignment
for the benefit of creditors, if a receiver or trustee is appointed for all or any significant part of the Borrower’s assets, or
if any payment or transfer of Collateral is recovered from the Agent or the Lenders. The Loan Documents and the Secured Obligations and
Collateral security shall continue to be effective, or shall be revived or reinstated, as the case may be, if at any time payment and
performance of the Secured Obligations or any transfer of Collateral to the Agent, or any part thereof is rescinded, avoided or avoidable,
reduced in amount, or must otherwise be restored or returned by, or is recovered from, the Agent, the Lenders or by any obligee of the
Secured Obligations, whether as a “voidable preference,” “fraudulent conveyance,” or otherwise, all as though
such payment, performance, or transfer of Collateral had not been made. In the event that any payment, or any part thereof, is rescinded,
reduced, avoided, avoidable, restored, returned, or recovered, the Loan Documents and the Secured Obligations shall be deemed, without
any further action or documentation, to have been revived and reinstated except to the extent of the full, final, and indefeasible payment
to the Agent or the Lenders in Cash.


 


11.15        Counterparts.
This Agreement and any amendments, waivers, consents or supplements hereto may be executed in any number of counterparts, and by different
parties hereto in separate counterparts, each of which when so delivered shall be deemed an original, but all of which counterparts shall
constitute but one and the same instrument.


 


11.16        No
Third Party Beneficiaries. No provisions of the Loan Documents are intended, nor will be interpreted, to provide or create any third-party
beneficiary rights or any other rights of any kind in any Person other than the Agent, the Lenders and the Borrower unless specifically
provided otherwise herein, and, except as otherwise so provided, all provisions of the Loan Documents will be personal and solely among
the Agent, the Lenders and the Borrower.


 






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 11.17       Agency.




 


(a)           The
Lenders hereby irrevocably appoint Silverpeak Credit Partners, LP to act on their behalf as the Agent hereunder and under the other Loan
Documents and authorize the Agent to take such actions on their behalf and to exercise such powers as are delegated to the Agent by the
terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto.


 


(b)          The
Lenders agree to indemnify the Agent in its capacity as such (to the extent not reimbursed by the Borrower and without limiting the obligation
of the Borrower to do so), according to its respective Loan Advance percentages (based upon the total outstanding Loan Advances) in effect
on the date on which indemnification is sought under this Section 11.17, from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at any time be
imposed on, incurred by or asserted against the Agent in any way relating to or arising out of, this Agreement, any of the other Loan
Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any
action taken or omitted by the Agent under or in connection with any of the foregoing. The agreements in this Section shall survive
the payment of the Loans and all other amounts payable hereunder.


 


(c)           The
Person serving as the Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise
the same as though it were not the Agent and the term “Lender” shall, unless otherwise expressly indicated or unless the context
otherwise requires, include each such Person serving as the Agent hereunder in its individual capacity.


 


(d)           The
Agent shall have no duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the
generality of the foregoing, the Agent shall not:


 


		(i)	be subject to any fiduciary or other implied duties, regardless of whether any default or any Event of Default has occurred and is
continuing;



 


		(ii)	have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly
contemplated hereby or by the other Loan Documents that the Agent is required to exercise as directed in writing by the Lenders; provided that the Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Agent to
liability or that is contrary to any Loan Document or applicable law; and



 


		(iii)	except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and the Agent shall not be
                                                                 liable for the failure to disclose, any information relating to the Borrower or any of its Affiliates that is communicated to or
                                                                 obtained by any Person serving as the Agent
or any of its Affiliates in any capacity.



 






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(e)           The
Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Lenders or as the
Agent shall believe in good faith shall be necessary, under the circumstances or (ii) in the absence of its own gross negligence
or willful misconduct.


 


(f)           The
Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made
in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document
delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth herein or therein or the occurrence of any default or Event of Default, (iv) the
validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or
document or (v) the satisfaction of any condition set forth in Section 4 or elsewhere herein, other than to confirm receipt
of items expressly required to be delivered to the Agent.


 


(g)          The
Agent may rely, and shall be fully protected in acting, or refraining to act, upon, any resolution, statement, certificate, instrument,
opinion, report, notice, request, consent, order, bond or other paper or document that it has no reason to believe to be other than genuine
and to have been signed or presented by the proper party or parties or, in the case of cables, telecopies and telexes, to have been sent
by the proper party or parties. In the absence of its gross negligence or willful misconduct, the Agent may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Agent
and conforming to the requirements of this Agreement or any of the other Loan Documents. The Agent may consult with its counsel, and any
opinion or legal advice of such counsel shall be full and complete authorization and protection in respect of any action taken, not taken
or suffered by the Agent hereunder or under any Loan Documents in accordance therewith. The Agent shall have the right at any time to
seek instructions concerning the administration of the Collateral from any court of competent jurisdiction. The Agent shall not be under
any obligation to exercise any of the rights or powers granted to the Agent by this Agreement and the other Loan Documents at the request
or direction of the Lenders unless the Agent shall have been provided by the Lenders with adequate security and indemnity against the
costs, expenses and liabilities that may be incurred by it in compliance with such request or direction.


 


(h)           Each
Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender or any of their Related Parties
and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agent or any other Lender or any of
their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any
document furnished hereunder or thereunder.


 






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(i)          The
Agent may at any time give notice of its resignation to the Lenders and the Borrower. Upon receipt of any such notice of resignation,
the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor, which shall be a bank with an office
in New York, New York, or an Affiliate of any such bank with an office in New York, New York. If no such successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its
resignation (or such earlier day as shall be agreed by the Required Lenders) (the “Resignation Effective Date”), then
the retiring Agent may (but shall not be obligated to), on behalf of the Lenders, appoint a successor Agent meeting the qualifications
set forth above. Whether or not a successor has been appointed, such resignation shall become effective in accordance with such notice
on the Resignation Effective Date. With effect from the Resignation Effective Date (i) the retiring Agent shall be discharged from
its duties and obligations hereunder and under the other Loan Documents and (ii) except for any indemnity payments owed to the retiring
or removed Agent, all payments, communications and determinations provided to be made by, to or through the Agent shall instead be made
by or to each Lender directly, until such time, if any, as the Required Lenders appoint a successor Agent as provided for above. Upon
the acceptance of a successor’s appointment as Agent hereunder, such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring Agent (other than any rights to indemnity payments owed to the retiring Agent),
and the retiring Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents. The fees
payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the
Borrower and such successor. After the retiring or removed Agent’s resignation or removal hereunder and under the other Loan Documents,
the provisions of this Article and Section 11.17 shall continue in effect for the benefit of such retiring or removed Agent,
its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring
or removed Agent was acting as Agent.


 


(j)           As
consideration for its services hereunder, the Agent shall be entitled to receive the Administration Fee, payable as provided in the Fee
Letter.


 


		11.18	Certain ERISA Matters



 


(a)           Each
Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the
date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Agent
and its Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower, the Guarantor or their respective Affiliates,
that at least one of the following is and will be true:


 


(i)          such
Lender is not using “plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA)
of one or more Plans in connection with the Loan,


 






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(ii)          the
transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by
independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance
company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate
accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class
exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s
entrance into, participation in, administration of and performance of the Loan and this Agreement;


 


(iii)          (A) such
Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE
84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate
in, administer and perform the Loan and this Agreement, (C) the entrance into, participation in, administration of and performance
of the Loan and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to
the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such
Lender’s entrance into, participation in, administration of and performance of the Loan and this Agreement, or


 


(iv)          such
other representation, warranty and covenant as may be agreed in writing between the Agent, in its sole discretion, and such Lender.


 


(b)           In
addition, unless sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or such Lender has
not provided another representation, warranty and covenant as provided in sub-clause (iv) in the immediately preceding clause (a),
such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants,
from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of,
the Agent and its Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower, the Guarantor, or their respective
Affiliates, that:


 


(i)           none
of the Agent or any of its Affiliates is a fiduciary with respect to the assets of such Lender (including in connection with the reservation
or exercise of any rights by the Agent under this Agreement, any Loan Document or any documents related to hereto or thereto), (ii) the
Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of
and performance of the Loans and this Agreement is independent (within the meaning of 29 CFR § 2510.3-21) and is a bank, an insurance
carrier, an investment adviser, a broker-dealer or other person that holds, or has under management or control, total assets of at least
$50 million, in each case as described in 29 CFR § 2510.3-21(c)(1)(i)(A)-(E),


 


(ii)           the
Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of
and performance of the Loan and this Agreement is capable of evaluating investment risks independently, both in general and with regard
to particular transactions and investment strategies (including in respect of the Obligations),


 






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(iii)          the
Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of
and performance of the Loan and this Agreement is a fiduciary under ERISA or the Code, or both, with respect to the Loan and this Agreement
and is responsible for exercising independent judgment in evaluating the transactions hereunder, and


 


(iv)          no
fee or other compensation is being paid directly to the Agent or any of its Affiliates for investment advice (as opposed to other services)
in connection with the Loan or this Agreement.


 


(c)           The
Agent hereby informs the Lenders that each such Person is not undertaking to provide impartial investment advice, or to give advice in
a fiduciary capacity, in connection with the transactions contemplated hereby, and that such Person has a financial interest in the transactions
contemplated hereby in that such Person or an Affiliate thereof (i) may receive interest or other payments with respect to the Loan
and this Agreement, (ii) may recognize a gain if it extended the Loan for an amount less than the amount being paid for an interest
in the Loan by such Lender or (iii) may receive fees or other payments in connection with the transactions contemplated hereby, the
Loan Documents or otherwise, including structuring fees, commitment fees, arrangement fees, facility fees, upfront fees, underwriting
fees, ticking fees, agency fees, administrative agent or collateral agent fees, utilization fees, minimum usage fees, letter of credit
fees, fronting fees, deal-away or alternate transaction fees, amendment fees, processing fees, term out premiums, banker’s acceptance
fees, breakage or other early termination fees or fees similar to the foregoing.


 


11.19       Publicity.
None of the parties hereto nor any of its respective member businesses and Affiliates shall, without the other parties’ prior written
consent, publicize or use (a) the other party’s name (including a brief description of the relationship among the parties hereto),
logo or hyperlink to such other parties’ web site, separately or together, in written and oral presentations, advertising, promotional
and marketing materials, client lists, public relations materials or on its web site (together, the “Publicity Materials”);
(b) the names of officers of such other parties in the Publicity Materials; and (c) such other parties’ name, trademarks,
service marks in any news or press release concerning such party; provided, however, notwithstanding anything to the contrary
herein, no such consent shall be required (i) to the extent necessary to comply with the requests of any regulators, legal requirements
or laws applicable to such party, pursuant to any listing agreement with any national securities exchange (so long as such party provides
prior notice to the other party hereto to the extent reasonably practicable) and (ii) to comply with Section 11.12.


 


11.20       Joint
and Several Liability; DDH as Agent for Borrower Entities. The Borrower Entities shall be jointly and severally liable for all
obligations of the Borrower hereunder. Each Borrower Entity hereby irrevocably appoints DDH as its representative and agent for all
purposes of this Agreement, with full authority to bind such Borrower Entity in full, and the Agent and Lenders shall be entitled to
rely on all actions, authorizations and consents by DDH (including without limitation execution of any amendments hereto or to any
other Loan Document) as binding upon each such Borrower Entity, and any notice to, or other communication with, any Borrower Entity
shall be sufficiently delivered and made if delivered or made to DDH. Any reference to the “Borrower” in any
representation, covenant or other provision of this Agreement shall be deemed to be a representation, covenant or other provision
applicable to each Borrower Entity or of the Borrower Entities taken as a whole, as the context requires.


 






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11.21      Intercreditor
Agreement. Anything herein to the contrary notwithstanding, the Liens and security interests securing the obligations evidenced by
the Note, the exercise of any right or remedy with respect thereto and certain of the rights of the holder thereof are subject to the
provisions of the Intercreditor Agreement. In the event of any conflict between the terms of the Intercreditor Agreement and this Agreement,
the terms of the Intercreditor Agreement shall govern and control.


 


(SIGNATURES TO FOLLOW)


 






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IN WITNESS WHEREOF, the
Borrower Entities, the Agent and the Lenders have duly executed and delivered this Loan and Security Agreement as of the day and year
first above written.


 


	 	THE BORROWER:
	 	 	 
	 	DIRECT DIGITAL HOLDINGS, LLC
	 	 	 
	 	 	 
	 	Signature:	/s/ Keith W. Smith
	 	 	 
	 	Print Name:	Keith W. Smith
	 	 	 
	 	Title:	President
	 	 	 
	 	 	 
	 	ORANGE142, LLC
	 	 
	 	 	 
	 	Signature:	/s/ Keith W. Smith
	 	 	 
	 	Print Name:	Keith W. Smith
	 	 	 
	 	Title:	President
	 	 	 
	 	 	 
	 	HUDDLED MASSES LLC
	 	 
	 	 	 
	 	Signature:	/s/ Keith W. Smith
	 	 	 
	 	Print Name:	Keith W. Smith
	 	 	 
	 	Title:	President
	 	 	 
	 	 	 
	 	COLOSSUS MEDIA, LLC
	 	 
	 	 	 
	 	Signature:	/s/ Keith W. Smith
	 	 	 
	 	Print Name:	Keith W. Smith
	 	 	 
	 	Title:	President


 


[Signature Page to
Loan and Security Agreement]


 






     


     


    


 


	 	UNIVERSAL STANDARDS FOR DIGITAL MARKETING, LLC
	 	 	 
	 	Signature:	/s/ Keith W. Smith
	 	 	 
	 	Print Name:	Keith W. Smith
	 	 	 
	 	Title:	President


 


[Signature Page to
Loan and Security Agreement]


 






     


     


    


 


Accepted and Agreed:


 


	 	THE AGENT:	SILVERPEAK CREDIT PARTNERS, LP
	 	 	 	 
	 	 	Signature:	/s/ Vaibhav Kumar
	 	 	 	 
	 	 	Print Name:	Vaibhav Kumar
	 	 	 	 
	 	 	Title:	Partner and Portfolio Manager
	 	 	 	 
	 	 	 	 
	 	THE LENDER:	SILVERPEAK CREDIT OPPORTUNITIES AIV LP
	 	 	 	 	 
	 	 	By: Silverpeak Credit Opportunities Cayman GP LP, its General Partner
	 	 	 	 	 
	 	 	 	By:
    SP CO GP Ltd, its General Partner
	 	 	 	
	 	 	 	 	 
	 	 	 	 	 
	 	 	Signature:	/s/ Vaibhav Kumar
	 	 	 	 	 
	 	 	Print Name:	Vaibhav Kumar
	 	 	 	 	 
	 	 	Title:	Partner and Portfolio Manager


 


[Signature Page to
Loan and Security Agreement]