Exhibit 10.2


 


CERTAIN CONFIDENTIAL
INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY [***], HAS BEEN OMITTED BECAUSE IT IS BOTH (I) NOT MATERIAL AND (II) IS THE TYPE THAT
THE REGISTRANT TREATS AS PRIVATE AND CONFIDENTIAL


  


AMENDMENT NO. 6


TO


SECOND AMENDED AND RESTATED CREDIT AGREEMENT 


 


This
AMENDMENT NO. 6 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this
“Amendment”) is entered into as of November 7, 2022,
by and among WELLS FARGO BANK, NATIONAL ASSOCIATION, in its capacity as administrative agent (in such capacity, “Agent”)
for each member of the Lender Group and the Bank Product Provider (as each such term is defined in the Credit Agreement referred to below),
KINERGY MARKETING LLC (“Kinergy”), and ALTO NUTRIENTS, LLC, formerly known as Pacific AG. Products, LLC (“Alto”
and together with Kinergy, each individually, a “Borrower” and collectively, the “Borrowers”). 


 


WHEREAS, Borrowers, Agent
and Lenders (as defined below) have entered into certain financing arrangements as set forth in (a) the Second Amended and Restated Credit
Agreement, dated as of August 2, 2017, by and among Agent, the financial institutions from time to time party thereto as lenders (collectively,
the “Lenders”) and Borrowers (as amended, restated, renewed, extended, supplemented, substituted and otherwise modified
from time to time, the “Credit Agreement”) and (b) the Loan Documents (as defined in the Credit Agreement); and


 


WHEREAS, Borrowers, Agent
and Lenders have agreed to amend and modify certain provisions of Credit Agreement, in each case subject to the terms and conditions of
this Amendment.


 


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


 


1. Definitions.
Capitalized terms used and not defined in this Amendment shall have the respective meanings given them in the Credit Agreement.


 


2. Amendments.
Effective as of the date hereof, the Credit Agreement is hereby amended to read in its entirety as set forth in Exhibit A hereto
(the “Amended Credit Agreement”). All schedules and exhibits to the Credit Agreement, as in effect immediately prior
to the Amendment No. 6 Effective Date, shall constitute schedules and exhibits to the Amended Credit Agreement except, that,
those schedules and exhibits which are attached to Exhibit B hereto shall constitute those respective schedules to the Amended
Credit Agreement after the Amendment No. 6 Effective Date. Each reference in the Credit Agreement to “this Agreement,” “hereunder,”
“hereof,” “herein” or words of similar import, and each reference in the other Loan Documents to the “Credit
Agreement” (including, without limitation, by means of words such as “thereunder” or “thereof” and words
of similar import), shall mean and be a reference to the Credit Agreement as amended herein as reflected by the Amended Credit Agreement.
The Agent, the Lenders signatory hereto, the Borrowers and the Guarantors each consent to the amendment of the Credit Agreement pursuant
to this Amendment No. 6.


 


3. Termination
of the Parent Guarantee. Effective as of the date hereof, the Agent (on behalf of each
member of the Lender Group and the Bank Product Provider), Parent and the ABL Borrowers acknowledge and confirm that that certain Second
Amended and Restated Guarantee, dated August 2, 2017, by Pacific Ethanol, Inc., in favor of Agent, is
terminated and the Parent’s obligations thereunder are forever satisfied, released and discharged
without further action.


 


4. Post-Closing.
Borrowers agree that they shall, within thirty (30) days of the date hereof (as such date may be extended by Agent in its discretion),
deliver to Agent Control Agreements, in form and substance satisfactory to Agent, is respect of each Loan Party’s Deposit Accounts
(other than Excluded Accounts (as defined in the Security Agreement)). Upon receipt
of such Control Agreements, the Agent (on behalf of each member of the
Lender Group and the Bank Product Provider) (i) authorizes the Borrowers (or any person or entity designated by a Borrower as its
delegate or representative for this purpose) to terminate that certain Deposit Account Control Agreement, dated August 2, 2017, among
Kinergy, Alto, Agent and Wells Fargo National Bank in its capacity as depositary bank, with respect to Accounts No. [***] and
[***] and (ii) agrees that to provide acknowledgement of the termination upon request.


 






     


     


    

 


5. Amendment
and Extension Fee. In addition to all other fees, costs and expenses payable by Borrowers to Agent and Lenders under the Loan Documents,
Borrowers shall pay to Agent an amendment and extension fee in the amount of $400,000 (the “Amendment and Extension Fee”),
which Amendment and Extension Fee shall be fully earned, due and payable on the date hereof and shall not be subject to refund or rebate
for any reason.


 


6. Additional
Representation.


 


(a) In
addition to the continuing representations, warranties and covenants at any time made by Borrowers to Agent and Lenders pursuant to the
Credit Agreement, and the other Loan Documents, Borrowers hereby jointly and severally represent, warrant and covenant with and to Agent
and Lenders that, as of the date of this Amendment and after giving effect hereto, no known Default or Event of Default exists or has
occurred and is continuing.


 


(b) Borrowers
hereby further represent to Agent that the lenders and their agents party to any Term Loan Documents are not and shall not be Affiliates
of any Loan Party as a result of the issuance of any Participation Shares (as defined in the Term Loan Credit Agreement as in effect on
the Amendment No. 6 Effective Date) under and under accordance with the Term Loan Credit Agreement as of the Amendment No. 6 Effective
Date.


 


7. Release.
In consideration of the agreements of Agent and Lenders contained herein and the making of loans by or on behalf of Agent and Lenders
to Borrowers pursuant to the Credit Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, each Borrower on behalf of itself and its successors, assigns, and other legal representatives (the “Releasing
Parties”), hereby, jointly and severally, absolutely, unconditionally and irrevocably releases, remises and forever discharges
Agent and each Lender, and their present and former shareholders, affiliates, subsidiaries, divisions, predecessors, directors, officers,
attorneys, employees, agents and other representatives and their respective successors and assigns (Agent, each Lender and all such other
parties being hereinafter referred to collectively as the “Releasees” and individually as a “Releasee”),
of and from all demands, actions, causes of action, suits, covenants, contracts, controversies, agreements, promises, sums of money, accounts,
bills, reckonings, damages and any and all other claims, counterclaims, defenses, rights of set-off, demands and liabilities whatsoever
(individually, a “Claim” and collectively, “Claims”) of every name and nature, known or unknown,
suspected or unsuspected, both at law and in equity, whether liquidated or unliquidated, matured or unmatured, asserted or unasserted,
fixed or contingent, foreseen or unforeseen and anticipated or unanticipated, which any Releasing Party may now or hereafter own, hold,
have or claim to have against the Releasees or any of them for, upon, or by reason of any nature, cause or thing whatsoever which arises
at any time on or prior to the day and date of this Amendment, in relation to, or in any way in connection with the Credit Agreement,
as amended and supplemented through the date hereof, this Amendment and the other Loan Documents. Each Releasing Party understands, acknowledges
and agrees that the release set forth above may be pleaded as a full and complete defense and may be used as a basis for an injunction
against any action, suit or other proceeding which may be instituted, prosecuted or attempted in breach of the provisions of such release.


 






    2


     


    

 


It is the intention of the Releasing Parties that
the above release shall be effective as a full and final release of each and every matter specifically and generally referred to above
clause (a). Each Releasing Party acknowledges and represents that it has been advised by independent legal counsel with respect to the
agreements contained herein and with respect to the provisions of California Civil Code Section 1542, which provides as follows: “A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT
THE TIME OF EXECUTING THE RELEASE, AND THAT IF KNOWN BY HIM OR HER WOULD HAVE MATERIALLY AFFECTED THE SETTLEMENT WITH THE DEBTOR OR RELEASEE.”
Each Releasing Party, being aware of said code section, expressly waives on its own behalf and on behalf of those for which such Releasing
Party is giving the release, any and all rights either may have thereunder, as well as under any other statute or common law principle
of similar effect, with respect to any of the matters released herein. This release shall act as a release of all included claims, rights
and causes of action, whether such claims are currently known, unknown, foreseen or unforeseen and regardless of any present lack of knowledge
as to such claims. Each Releasing Party understands and acknowledges the significance and consequence of this waiver of California Civil
Code Section 1542, and hereby assumes full responsibility for any injuries, damages, losses or liabilities released herein.


 


8. Conditions
to Effectiveness. The effectiveness of this Amendment shall be subject to the receipt by Agent of:


 


(a) an
original (or electronic copy) of this Amendment (and all exhibits hereto) duly authorized, executed and delivered by Borrowers and Lenders;


 


(b) a
Joinder and Amendment No. 1 to the Guaranty and Security Agreement, dated as of the date hereof, by and among Parent and the Subsidiaries
of Parent (other than the Borrowers) which are guarantors under the Term Loan Agreement (together with Parent, each a “New Grantor”),
and Agent;


 


(c) The
Term Loan Agreement (as defined in the Credit Agreement, as amended hereby) and all other Term Loan Documents (as defined in the Credit
Agreement, as amended hereby), in form and substance satisfactory to Agent;


 


(d) an
intercreditor agreement, in form and substance satisfactory to Agent, duly executed and delivered by Term Loan Agent (as defined in the
Credit Agreement, as amended hereby), and acknowledged by the Loan Parties and Parent;


 


(e) appropriate
financing statement to be filed in the office of the applicable Secretary of State against each New Grantor to perfect the Agent’s
Liens in and to the Collateral of such New Grantor, which Agent is authorized to file with such Secretary of State;


 


(f) a
certificate from the Secretary of each New Grantor, dated as of the date hereof, (i) attesting to the resolutions of such New Grantor’s
Board of Directors or Managers, as applicable, authorizing its execution, delivery, and performance of the Joinder and Amendment No. 1
to Guaranty and Security Agreement, (ii) authorizing officers of such New Grantor to execute the same, and (iii) attesting to the incumbency
and signatures of such specific officers of such New Grantor;


 


(g) a
certificate of status with respect to each New Grantor, dated as of a recent date, such certificate to be issued by the appropriate officer
of the jurisdiction of organization of such New Grantor, which certificate shall indicate that such New Grantor is in good standing in
such jurisdiction;


 






    3


     


    

 


(h) certificates
of status with respect to each New Grantor, if any, dated as of a recent date, such certificates to be issued by the appropriate officer
of the jurisdictions (other than the jurisdiction of organization of New Grantor) in which the failure to be duly qualified or licensed
would constitute a Material Adverse Effect, which certificates shall indicate that such New Grantor is in good standing in such jurisdictions;


 


(i) copies
of each New Grantor’s governing documents, as amended, modified or supplemented to the date hereof, certified by the Secretary of
such New Grantor; and


 


(j) the
Amendment and Extension Fee.


 


9. Effect
of this Amendment. Except as modified pursuant hereto, no other changes or modifications to the Credit Agreement are intended
or implied and in all other respects the Credit Agreement is hereby specifically ratified, restated and confirmed by all parties hereto
as of the date hereof. To the extent of conflict between the terms of this Amendment, on the one hand, and Credit Agreement, on the other
hand, the terms of this Amendment shall control.


 


10. Further
Assurances. Borrowers shall execute and deliver such additional documents and take such additional action as may be reasonably requested
by Agent to effectuate the provisions and purposes of this Amendment.


 


11. Binding
Effect. This Amendment shall be binding upon and inure to the benefit of each of the parties hereto and their respective successors
and assigns.


 


12. Governing
Law. The rights and obligations hereunder of each of the parties hereto shall be governed by and interpreted and determined in accordance
with the internal laws of the State of California (without giving effect to principles of conflict of laws).


 


13. Counterparts.
This Amendment and any notices delivered under this Amendment, may be executed by means of (a) an electronic signature that complies with
the federal Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic Transactions Act, or
any other relevant and applicable electronic signatures law; (b) an original manual signature; or (c) a faxed, scanned, or photocopied
manual signature. Each electronic signature or faxed, scanned, or photocopied manual signature shall for all purposes have the same validity,
legal effect, and admissibility in evidence as an original manual signature. Agent reserves the right, in its sole discretion, to accept,
deny, or condition acceptance of any electronic signature on this Amendment or on any notice delivered to Agent under this Amendment.
This Amendment and any notices delivered under this Amendment may be executed in any number of counterparts, each of which shall be deemed
to be an original, but such counterparts shall, together, constitute only one instrument. Delivery of an executed counterpart of a signature
page of this Amendment and any notices as set forth herein will be as effective as delivery of a manually executed counterpart of this
Amendment or notice.


 


[Remainder
of page intentionally left blank]


 




    4


     


    


 


IN WITNESS WHEREOF, the parties
hereto have caused this Amendment to be duly executed and delivered by their authorized officers as of the day and year first above written.


 


	BORROWERS:	 
	 	 	 
	Kinergy Marketing LLC,	 
	as a Borrower	 
	 	 	 
	By:  	/s/ Bryon T. McGregor	 
	Name: 	Bryon T. McGregor	 
	Title:	Chief Financial Officer, Vice President 

and Assistant Secretary	 
	 	 	 
	ALTO NUTRIENTS, LLC,  	 
	as a Borrower	 
	 	 	 
	By:	/s/ Bryon T. McGregor	 
	Name: 	Bryon T. McGregor	 
	Title:	Chief Financial Officer, Vice President

 and Assistant Secretary	 



 


ACKNOWLEDGED:


 


ALTO INGREDIENTS, INC.


ALTO CENTRAL, LLC


EAGLE ALCOHOL COMPANY LLC


ALTO OP CO.


ALTO SPECIALTY PRODUCTS, LLC


ALTO WEST, LLC


ALTO PEKIN, LLC


ALTO ICP, LLC


ALTO CANTON, LLC


ALTO MAGIC VALLEY, LLC


PACIFIC ETHANOL STOCKTON LLC


ALTO COLUMBIA, LLC


PACIFIC ETHANOL MADERA LLC


 


	By:	/s/ Bryon T. McGregor	 
	Name: 	Bryon T. McGregor	 
	Title:	Chief Financial Officer, Vice President and

 Assistant Secretary	 


 


[Signature Page to Amendment No. 6. To Credit Agreement]

 






     


     


    

 


	AGENT AND LENDER:	 
	 	 	 
	wells fargo BANK, NATIONAL ASSOCIATION, 	 
	as Agent and sole Lender	 
	 	 	 
	By:	/s/ Carlos Valles	 
	Name: 	Carlos Valles	 
	Title:	Authorized Signatory	 



 


[Signature Page to Amendment No. 6. To Credit Agreement]


 




     


     


    


 


Exhibit A


to


Amendment No. 6 to Credit Agreement 


 


Amended Credit Agreement


 


See attached.




 






     


     


    

 


EXHIBIT
A


TO


AMENDMENT
NO. 6 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT

 


 



 


SECOND
AMENDED AND RESTATED 


 


		CREDIT
                                            AGREEMENT

                                              

                                             by
                                            and among
	 



 


WELLS
FARGO BANK, NATIONAL ASSOCIATION,


 


as
Administrative Agent, Sole Lead Arranger, Book Runner, Syndication Agent, and Documentation Agent,


 


THE
LENDERS THAT ARE PARTIES HERETO


 


as
the Lenders, and 


 


KINERGY
MARKETING LLC and


 


ALTO
NUTRIENTS, LLC


 


as
Borrowers


 


Dated
as of August 2, 2017







 







 



 


 


 


 


 


 


 


 


 






     


     


    

 


Table
of Contents


 






	 	 	Page
	 	 	 
	1.	DEFINITIONS
    AND CONSTRUCTION	1
	 	1.1	Definitions	1
	 	1.2	Accounting Terms	34
	 	1.3	Code	35
	 	1.4	Construction	35
	 	1.5	Time References	35
	 	1.6	Schedules and Exhibits	35
	2.	LOANS
    AND TERMS OF PAYMENT	35
	 	2.1	Revolving Loans	35
	 	2.2	[Reserved]	36
	 	2.3	Borrowing Procedures
    and Settlements	36
	 	2.4	Payments; Reductions
    of Commitments; Prepayments	42
	 	2.5	Promise to Pay; Promissory
    Notes	44
	 	2.6	Interest Rates and
    Letter of Credit Fee:  Rates, Payments, and Calculation.	44
	 	2.7	Crediting Payments	45
	 	2.8	Designated Account	45
	 	2.9	Maintenance of Loan
    Account; Statements of Obligations	46
	 	2.10	Fees	46
	 	2.11	Letters of Credit	46
	 	2.12	Special Provisions
    Applicable to Adjusted Daily Simple SOFR	53
	 	2.13	Capital Requirements	54
	 	2.14	Incremental Facility	55
	 	2.15	Joint and Several
    Liability of Borrowers	57
	3.	CONDITIONS;
    TERM OF AGREEMENT	60
	 	3.1	Conditions Precedent
    to the Initial Extension of Credit	60
	 	3.2	Conditions Precedent
    to all Extensions of Credit	60
	 	3.3	Maturity	60
	 	3.4	Effect of Maturity	60
	  	3.5	Early Termination
    by Borrowers	60
	4.	REPRESENTATIONS
    AND WARRANTIES	61
	 	4.1	Due Organization
    and Qualification; Subsidiaries	61
	 	4.2	Due Authorization;
    No Conflict	62
	 	4.3	Governmental Consents	62
	 	4.4	Binding Obligations;
    Perfected Liens	62
	 	4.5	Title to Assets;
    No Encumbrances	63
	 	4.6	Litigation	63
	 	4.7	Compliance with Laws	63
	 	4.8	No Material Adverse
    Effect	63
	 	4.9	Solvency	63
	 	4.10	Employee Benefits	63
	 	4.11	Environmental Condition	64
	 	4.12	Complete Disclosure	64
	 	4.13	Patriot Act	65
	 	4.14	[Reserved]	65
	 	4.15	Payment of Taxes	65
	 	4.16	Margin Stock	65



 






    i


     


    

 


	 	4.17	Governmental
    Regulation	65
	 	4.18	OFAC; Sanctions;
    Anti-Corruption Laws; Anti-Money Laundering Laws	66
	 	4.19	Employee and Labor
    Matters	66
	 	4.20	[Reserved]	67
	 	4.21	Leases	67
	 	4.22	Eligible Accounts	67
	 	4.23	Eligible Inventory	67
	 	4.24	Location of Inventory	67
	 	4.25	Inventory Records	67
	 	4.26	Hedge Agreements	67
	 	4.27	Material Contracts	67
	 	4.28	Pacific Ethanol Acquired
    Inventory	68
	5.	AFFIRMATIVE
    COVENANTS	68
	 	5.1	Financial Statements,
    Reports, Certificates	68
	 	5.2	Reporting	68
	 	5.3	Existence	68
	 	5.4	Maintenance of Properties	68
	 	5.5	Taxes	69
	 	5.6	Insurance	69
	 	5.7	Inspection.	69
	 	5.8	Compliance with Laws	70
	 	5.9	Environmental	70
	 	5.10	Disclosure Updates	71
	 	5.11	Formation of Subsidiaries	71
	 	5.12	Further Assurances	71
	 	5.13	[Reserved]	72
	 	5.14	Location of Inventory;
    Chief Executive Office	72
	 	5.15	OFAC; Sanctions;
    Anti-Corruption Laws; Anti-Money Laundering Laws	72
	 	5.16	Compliance with ERISA
    and the IRC	72
	6.	NEGATIVE
    COVENANTS	73
	 	6.1	Indebtedness	73
	 	6.2	Liens	73
	 	6.3	Restrictions on Fundamental
    Changes	73
	 	6.4	Disposal of Assets	74
	 	6.5	Nature of Business	74
	 	6.6	Prepayments and Amendments	74
	 	6.7	Restricted Payments	74
	 	6.8	Accounting Methods	75
	 	6.9	Investments	75
	 	6.10	Transactions with
    Affiliates	75
	 	6.11	Use of Proceeds	76
	 	6.12	Limitation on Issuance
    of Equity Interests	76
	 	6.13	Inventory with Bailees	77
	 	6.14	[Reserved]	77
	 	6.15	[Reserved]	77
	 	6.16	Employee Benefits	77
	7.	FINANCIAL
    COVENANTS	77
	 	7.1	Fixed Charge Coverage
    Ratio	77
	8.	EVENTS
    OF DEFAULT	78
	 	8.1	Payments	78
	 	8.2	Covenants	78
	 	8.3	Judgments	78
	 	8.4	Voluntary Bankruptcy,
    etc	79
	 	8.5	Involuntary Bankruptcy,
    etc	79
	 	8.6	Default Under Other
    Agreements	79
	 	8.7	Representations,
    etc	79



 






    ii


     


    

 


	 	8.8	Guaranty	79
	 	8.9	Security Documents	79
	 	8.10	Loan Documents	80
	 	8.11	Change of Control	80
	 	8.12	ERISA	80
	 	8.13	Material Adverse
    Effect	80
	9.	RIGHTS
    AND REMEDIES	80
	 	9.1	Rights and Remedies	80
	 	9.2	Remedies Cumulative	81
	 	9.3	Reserved	81
	10.	WAIVERS;
    INDEMNIFICATION	81
	 	10.1	Demand; Protest;
    etc	81
	 	10.2	The Lender Group’s
    Liability for Collateral	81
	 	10.3	Indemnification	82
	11.	NOTICES.	83
	12.	CHOICE
    OF LAW AND VENUE; JURY TRIAL WAIVER; JUDICIAL REFERENCE PROVISION	84
	13.	ASSIGNMENTS
    AND PARTICIPATIONS; SUCCESSORS	86
	 	13.1	Assignments and Participations	86
	 	13.2	Successors	90
	14.	AMENDMENTS;
    WAIVERS	90
	 	14.1	Amendments and Waivers	90
	 	14.2	Replacement of Certain
    Lenders	92
	15.	14.3	No Waivers; Cumulative
    Remedies	93
	 	AGENT;
    THE LENDER GROUP	93
	 	15.1	Appointment and Authorization
    of Agent	93
	 	15.2	Delegation of Duties	94
	 	15.3	Liability of Agent	94
	 	15.4	Reliance by Agent	94
	 	15.5	Notice of Default
    or Event of Default	94
	 	15.6	Credit Decision	95
	 	15.7	Costs and Expenses;
    Indemnification	95
	 	15.8	Agent in Individual
    Capacity	96
	 	15.9	Successor Agent	96
	 	15.10	Lender in Individual
    Capacity	97
	 	15.11	Collateral Matters	97
	 	15.12	Restrictions on Actions
    by Lenders; Sharing of Payments	98
	 	15.13	Agency for Perfection	98
	 	15.14	Payments by Agent
    to the Lenders	98
	 	15.15	Concerning the Collateral
    and Related Loan Documents	99
	 	15.16	Field Examination
    Reports; Confidentiality; Disclaimers by Lenders; Other Reports and Information	99
	 	15.17	Several Obligations;
    No Liability	100
	 	15.18	[Reserved]	100
	16.	WITHHOLDING
    TAXES	100
	 	16.1	Payments	100
	 	16.2	Exemptions	101
	 	16.3	Reductions	102
	 	16.4	Refunds	103
	17.	GENERAL
    PROVISIONS	103
	 	17.1	Effectiveness	103
	 	17.2	Section Headings	103
	 	17.3	Interpretation	103
	 	17.4	Severability of Provisions	103
	 	17.5	Bank Product Provider	104
	 	17.6	Debtor-Creditor Relationship	104
	 	17.7	Counterparts; Electronic
    Execution	104
	 	17.8	Revival and Reinstatement
    of Obligations; Certain Waivers	105
	 	17.9	Confidentiality	105
	 	17.10	Survival	106
	 	17.11	Patriot Act; Due
    Diligence	106
	 	17.12	Integration	106
	 	17.13	Kinergy as Agent
    for Borrowers	107
	 	17.14	Acknowledgement and
    Consent to Bail-In of EEA Financial Institutions	107
	 	17.15	Amendment and Restatement	108
	 	17.16	Acknowledgement Regarding
    Any Supported QFCs	108
	 	17.17	Intercreditor Agreement	108



 



    iii


     


    

 


EXHIBITS
AND SCHEDULES


 


	Exhibit A-1	Form of Assignment and Acceptance
	Exhibit B-1	Form of Borrowing Base Certificate
	Exhibit C-1	Form of Compliance Certificate
	Exhibit J-1	Form of Joinder
	Exhibit P-1	Form of Perfection Certificate
	Schedule A-1	Agent’s Account
	Schedule A-2	Authorized Persons
	Schedule C-1	Commitments
	Schedule D-1	Designated Account
	Schedule E-1	Existing Letters of Credit
	Schedule P-1	Permitted Investments
	Schedule P-2	Permitted Liens
	Schedule 3.1	Conditions Precedent
	Schedule 4.1(b)	Capitalization of Borrowers
	Schedule 4.1(c)	Capitalization of Borrowers’ Subsidiaries
	Schedule 4.1(d)	Subscriptions, Options, Warrants, Calls
	Schedule 4.6	Litigation
	Schedule 4.10	Employee Benefits
	Schedule 4.11	Environmental Matters
	Schedule 4.14	Permitted Indebtedness
	Schedule 4.25	Location of Inventory
	Schedule 5.1	Financial Statements, Reports, Certificates
	Schedule 5.2	Collateral Reporting
	Schedule 6.5	Nature of Business


 




    iv


     


    

 


SECOND
AMENDED AND RESTATED CREDIT AGREEMENT


 


THIS
SECOND AMENDED AND RESTATED CREDIT AGREEMENT, is entered into as of August 2, 2017 by and among the lenders identified on the signature
pages hereof (each of such lenders, together with its successors and permitted assigns, is referred to hereinafter as a “Lender”,
as that term is hereinafter further defined), WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as administrative
agent for each member of the Lender Group and the Bank Product Provider (in such capacity, together with its successors and assigns in
such capacity, “Agent”), as sole Lead Arranger (in such capacity, together with its successors and assigns in such
capacity, the “Lead Arranger”), Book Runner (in such capacity, together with its successors and assigns in such capacity,
the “Book Runner”), syndication agent (in such capacity, together with is successors and assigns in such capacity,
the “Syndication Agent”), and Documentation Agent (in such capacity, together with its successors and assigns in such
capacity, the “Documentation Agent”), KINERGY MARKETING LLC, an Oregon limited liability company (“Kinergy”),
ALTO NUTRIENTS, LLC, a California limited liability company (“Alto Nutrients”) and those additional entities
that hereafter become parties hereto as Borrowers in accordance with the terms hereof by executing the form of Joinder attached hereto
as Exhibit J-1 (each, a “Borrower” and individually and collectively, jointly and severally, the “Borrowers”).


 


The
parties agree as follows:


 


1.
DEFINITIONS AND CONSTRUCTION.


 


1.1
Definitions. As used in this Agreement, the following terms shall have the following definitions:


 


“Acceptable
Appraisal” means, with respect to an appraisal of Inventory, the most recent appraisal of such property received by Agent (a)
from an appraisal company satisfactory to Agent, (b) the scope and methodology (including, to the extent relevant, any sampling procedure
employed by such appraisal company) of which are satisfactory to Agent, and (c) the results of which are satisfactory to Agent, in each
case, in Agent’s Permitted Discretion.


 


“Account”
means an account (as that term is defined in the Code).


 


“Account
Debtor” means any Person who is obligated on an Account, chattel paper, or a general intangible.


 


“Account
Party” has the meaning specified therefor in Section 2.11(h) of this Agreement.


 


“Accounting
Changes” means changes in accounting principles required by the promulgation of any rule, regulation, pronouncement or opinion
by the Financial Accounting Standards Board of the American Institute of Certified Public Accountants (or successor thereto or any agency
with similar functions).


 


“Additional
Payment Conditions” means, with respect to any cash dividend or distribution by a Borrower to Parent, that (a) the amount
of such cash dividend or distribution does not exceed seventy-five (75%) percent of Excess Cash Flow (calculated, for the avoidance
of doubt, net of all dividends and distributions) of Borrowers and their Subsidiaries for the trailing twelve (12) month period most
recently then ended, as reflected in unaudited consolidated financial statements for such trailing twelve (12) months of Borrowers
and their respective Subsidiaries required to be delivered under this Agreement (the “TTM Financial Statements”),
(b) Agent shall receive no less than five (5) days prior written notice from Administrative Borrower setting forth the intended date
and amount of such distribution, together with the TTM Financial Statements, (c) no Event of Default exists and is continuing or
would arise after giving effect to such dividend or distribution, (d) such dividend or distribution shall be paid with funds legally
available therefor, (e) such dividend or distribution shall not violate any law or regulation or the terms of any indenture,
agreement or undertaking to which any Borrower is a party or by which any Borrower or its property are bound, (f) as of the date of
such dividend or distribution, Excess Availability for the thirty (30) consecutive day period immediately prior to the date of any
such distribution, calculated on a pro forma basis as if such dividend or distribution had occurred on each day during such thirty
(30) day period, shall not be less than 15% of the Maximum Revolver Amount, and (g) as of the date of such dividend or distribution
and after giving effect to such distribution, Excess Availability shall be not less than 15% of the Maximum Revolver
Amount.


 






     


     


    

 


“Additional
Documents” has the meaning specified therefor in Section 5.12 of this Agreement.


 


“Adjusted
Daily Simple SOFR” means, with respect to any day (a “Reference Day”), a rate per annum equal to the sum of (i)
SOFR for the date that is (a “SOFR Rate Date”) two (2) U.S. Government Securities Business Days prior to (x) if such Reference
Day is a U.S. Government Securities Business Day, such Reference Day or (y) if such Reference Day is not a U.S. Government Securities
Business Day, the U.S. Government Securities Business Day immediately preceding such Reference Day, in each case, as such rate appears
on the SOFR Administrator’s Website at approximately 3:00 p.m. (New York City time) on the U.S. Government Securities Business
Day immediately following such SOFR Rate Date, plus (ii) the Daily Simple SOFR Adjustment; provided, however, that if Daily Simple SOFR
determined as provided above would be less than zero, then Daily Simple SOFR shall be deemed to be zero.


 


“Administrative
Borrower” has the meaning specified therefor in Section 17.13 of this Agreement.


 


“Administrative
Questionnaire” has the meaning specified therefor in Section 13.1(a) of this Agreement.


 


“Affected
Lender” has the meaning specified therefor in Section 2.13(b) of this Agreement.


 


“Affiliate”
means, as applied to any Person, any other Person who controls, is controlled by, or is under common control with, such Person; provided
that for all purposes under the Loan Documents, the lenders and their agents party to any Term Loan Documents shall be deemed not
to be Affiliates of the Borrowers or any of their Subsidiaries solely as a result of the pledge of the Equity Interests of the Loan Parties
and their Subsidiaries pursuant to the terms of the Term Loan Documents or the issuance of Participation Shares (as defined in the Term
Loan Credit Agreement as in effect on the Amendment No. 6 Effective Date) under and in accordance with the Term Loan Credit Agreement
as of the Amendment No. 6 Effective Date. For purposes of this definition, “control” means the possession, directly or indirectly
through one or more intermediaries, of the power to direct the management and policies of a Person, whether through the ownership of
Equity Interests, by contract, or otherwise; provided, that for purposes of the definition of Eligible Accounts and Section
6.10 of this Agreement: (a) any Person which owns directly or indirectly 10% or more of the Equity Interests having ordinary voting
power for the election of directors or other members of the governing body of a Person or 10% or more of the partnership or other ownership
interests of a Person (other than as a limited partner of such Person) shall be deemed an Affiliate of such Person, (b) each director
(or comparable manager) of a Person shall be deemed to be an Affiliate of such Person, and (c) each partnership in which a Person is
a general partner shall be deemed an Affiliate of such Person.


 





“Affiliate
Company Agreement” shall mean that certain Affiliated Company Agreement, effective as of July 1, 2015, by and among the Borrowers
party thereto, certain of the Pacific Ethanol Affiliates, and Parent pursuant to which Parent will provide certain services to Borrowers
as more particularly set forth therein, as amended, restated, modified or supplemented from time to time.


 


“Agent”
has the meaning specified therefor in the preamble to this Agreement.


 


“Agent-Related
Persons” means Agent, together with its Affiliates, officers, directors, employees, attorneys, and agents.


 


“Agent’s
Account” means the Deposit Account of Agent identified on Schedule A-1 to this Agreement (or such other Deposit Account
of Agent that has been designated as such, in writing, by Agent to Borrowers and the Lenders).


 


“Agent’s
Liens” means the Liens granted by each Loan Party or its Subsidiaries to Agent under the Loan Documents and securing the Obligations.


 


“Agreement”
means this Second Amended and Restated Credit Agreement, as amended, restated, amended and restated, supplemented or otherwise modified
from time to time.


 


“Amendment
No. 1 Effective Date” shall mean March 27, 2019.


 


“Amendment
No. 2 Effective Date” shall mean July 31, 2019.


 






    2


     


    

 


“Amendment
No. 3 Effective Date” shall mean November 19, 2019.


 


“Amendment
No. 5 Effective Date” means June 16, 2021.


 


“Amendment
No. 6 Effective Date” means November 7, 2022.


 


“Alto
Nutrients” has the meaning specified therefor in the preamble to this Agreement.


 


“Anti-Corruption
Laws” means the FCPA, the U.K. Bribery Act of 2010, as amended, and all other applicable laws and regulations or ordinances
concerning or relating to bribery, money laundering or corruption in any jurisdiction in which any Loan Party or any of its Subsidiaries
or Affiliates is located or is doing business.


 


“Anti-Money
Laundering Laws” means the applicable laws or regulations in any jurisdiction in which any Loan Party or any of its Subsidiaries
or Affiliates is located or is doing business that relates to money laundering, any predicate crime to money laundering, or any financial
record keeping and reporting requirements related thereto.


 


“Applicable
Margin” means, as of any date of determination, the applicable margin set forth in the following table that corresponds to
the Average Excess Availability of Borrowers for the most recently completed quarter:


 


	Level	 	Average Excess Availability	 	Applicable Margin
	I	 	≥
    50% of the Maximum Revolver Amount	 	1.25
    percentage points
	II	 	<
    50% of the Maximum Revolver Amount and ≥ 25% of the Maximum Revolver Amount	 	1.50
    percentage points
	III	 	<
    25% of the Maximum Revolver Amount	 	1.75
    percentage points


 


The
Applicable Margin shall be re-determined as of the first day of each quarter. Notwithstanding anything to the contrary herein, the Applicable
Margin shall be the highest percentage set forth above plus two (2%) percent per annum, at Agent’s option, without notice, (i)
either (A) for the period on and after the date of termination or non-renewal hereof until such time as all Obligations are indefeasibly
paid and satisfied in full in immediately available funds, or (B) for the period from and after the date of the occurrence of any Event
of Default, and for so long as such Event of Default is continuing as determined by Agent and (ii) on the Revolving Loans to Borrowers
at any time outstanding in excess of the Borrowing Base (whether or not such excess(es) arise or are made with or without Agent’s
or any Lender’s knowledge or consent and whether made before or after an Event of Default). The Applicable Margin as of the Amendment
No. 5 Effective Date shall be the Applicable Margin shall be set at the margin in the row styled “Level III”.


 


“Applicable
Unused Line Fee Percentage” means, as of any date of determination, the applicable percentage set forth in the following table
that corresponds to the Average Revolver Usage of Borrowers for the most recently completed quarter as determined by Agent in its Permitted
Discretion; provided further, that any time an Event of Default has occurred and is continuing, the Applicable Unused Line Fee
Percentage shall be set at the margin in the row styled “Level II”:


 


	Level	 	Average Revolver Usage 	 	Applicable Unused Line Fee Percentage
	I	 	≥
    50% of the Maximum Revolver Amount	 	0.25
    percentage points
	II	 	<
    50% of the Maximum Revolver Amount	 	0.375
    percentage points


 


The
Applicable Unused Line Fee Percentage shall be re-determined on the first date of each quarter by Agent.


 


“Application
Event” means the occurrence of (a) a failure by Borrowers to repay all of the Obligations in full on the Maturity Date, or
(b) an Event of Default and the election by Agent or the Required Lenders to require that payments and proceeds of Collateral be applied
pursuant to Section 2.4(b)(iii) of this Agreement.


 






    3


     


    

 


“Assignee”
has the meaning specified therefor in Section 13.1(a) of this Agreement.


 


“Assignment
and Acceptance” means an Assignment and Acceptance Agreement substantially in the form of Exhibit A-1 to this Agreement.


 


“Authorized
Person” means any one of the individuals identified as an officer of a Borrower on Schedule A-2 to this Agreement, or
any other individual identified by Administrative Borrower as an authorized person and authenticated through Agent’s electronic
platform or portal in accordance with its procedures for such authentication.


 


“Availability”
means, as of any date of determination, the amount that Borrowers are entitled to borrow as Revolving Loans under Section 2.1
of this Agreement (after giving effect to the then outstanding Revolver Usage).


 


“Average
Excess Availability” means, with respect to any period, the sum of the aggregate amount of Excess Availability for each day
in such period (as calculated by Agent as of the end of each respective day) divided by the number of days in such period.


 


“Average
Revolver Usage” means, with respect to any period, the sum of the aggregate amount of Revolver Usage for each day in such period
(calculated as of the end of each respective day) divided by the number of days in such period.


 


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


 


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


 


“Bank
Product” means any one or more of the following financial products or accommodations extended to any Borrower or any of its
Subsidiaries by a Bank Product Provider: (a) credit cards (including commercial cards (including so-called “purchase cards”,
“procurement cards” or “p-cards”)), (b) payment card processing services, (c) debit cards, (d) stored value cards,
(e) Cash Management Services, or (f) transactions under Hedge Agreements.


 


“Bank
Product Agreements” means those agreements entered into from time to time by any Borrower or any of its Subsidiaries with a
Bank Product Provider in connection with the obtaining of any of the Bank Products.


 


“Bank
Product Collateralization” means providing cash collateral (pursuant to documentation reasonably satisfactory to Agent) to
be held by Agent for the benefit of the Bank Product Provider (other than the Hedge Providers) in an amount determined by Agent as sufficient
to satisfy the reasonably estimated credit exposure, operational risk or processing risk with respect to the then existing Bank Product
Obligations (other than Hedge Obligations).


 


“Bank
Product Obligations” means (a) all obligations, liabilities, reimbursement obligations, fees, or expenses owing by each Borrower
and its Subsidiaries to any Bank Product Provider pursuant to or evidenced by a Bank Product Agreement and irrespective of whether for
the payment of money, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, (b)
all Hedge Obligations, and (c) all amounts that Agent or any Lender is obligated to pay to a Bank Product Provider as a result of Agent
or such Lender purchasing participations from, or executing guarantees or indemnities or reimbursement obligations to, a Bank Product
Provider with respect to the Bank Products provided by such Bank Product Provider to a Borrower or its Subsidiaries.


 





“Bank
Product Provider” means Wells Fargo or any of its Affiliates, including each of the foregoing in its capacity, if applicable,
as a Hedge Provider.


 


“Bankruptcy
Code” means title 11 of the United States Code, as in effect from time to time.


 


“Base
Rate” means the greatest of (a) the Federal Funds Rate plus 1⁄2%, and (b) the rate of interest announced,
from time to time, within Wells Fargo at its principal office in San Francisco as its “prime rate”, with the understanding
that the “prime rate” is one of Wells Fargo’s base rates (not necessarily the lowest of such rates) and serves as the
basis upon which effective rates of interest are calculated for those loans making reference thereto and is evidenced by the recording
thereof after its announcement in such internal publications as Wells Fargo may designate (and, if any such announced rate is below zero,
then the rate determined pursuant to this clause (b) shall be deemed to be zero).


 






    4


     


    

 


“BHC
Act Affiliate” of a Person means an “affiliate” (as such term is defined under, and interpreted in accordance with,
12 U.S.C. 1841(k)) of such Person.


 


“Board
of Directors” means, as to any Person, the board of directors (or comparable managers) of such Person, or any committee thereof
duly authorized to act on behalf of the board of directors (or comparable managers).


 


“Board
of Governors” means the Board of Governors of the Federal Reserve System of the United States (or any successor).


 


“Book
Runner” has the meaning set forth in the preamble to this Agreement.


 


“Borrower”
and “Borrowers” have the respective meanings specified therefor in the preamble to this Agreement.


 


“Borrower
Materials” has the meaning specified therefor in Section 17.9(c) of this Agreement.


 


“Borrowing”
means a borrowing consisting of Revolving Loans made on the same day by the Lenders (or Agent on behalf thereof), or by Swing Lender
in the case of a Swing Loan, or by Agent in the case of an Extraordinary Advance.


 


“Borrowing
Base” shall mean, at any time, the amount equal to:


 


(a)
the sum of:


 


(i)
eighty-five percent (85%) of the Eligible Accounts of Borrowers; plus


 


(ii)
the lesser of (A) $50,000,000, (B) seventy percent (70%) multiplied by the Value of the Eligible Inventory and Eligible-In-Transit Inventory
of Borrowers, or (C) eighty-five percent (85%) of the Net Recovery Percentage multiplied by the Value of Eligible Inventory and Eligible
In-Transit Inventory of Borrowers; minus


 


(b)
Reserves.


 


In
no event shall the amount determined under the foregoing clauses (a)(ii)(B) or (a)(ii)(C) include more than (i) $20,000,000 in respect
of fuel or alcohol products, (ii) $15,000,000 in respect
of Eligible In Transit Inventory, (iii) $30,000,000 in respect of co products, or (iv) $40,000,000 in respect of corn products (including
wet milling byproducts and dry milling byproducts).








 


“Borrowing
Base Certificate” means a certificate in the form of Exhibit B-1 to this Agreement.


 


“Business
Day” means any day that is not a Saturday, Sunday, or other day on which banks are authorized or required to close in the state
of California or North Carolina.


 


“Capital
Expenditures” means, with respect to any Person for any period, the amount of all expenditures by such Person and its Subsidiaries
during such period that are capital expenditures as determined in accordance with GAAP, whether such expenditures are paid in cash or
financed, but excluding, without duplication (a) with respect to the purchase price of assets that are purchased substantially contemporaneously
with the trade-in of existing assets during such period, the amount that the gross amount of such purchase price is reduced by the credit
granted by the seller of such assets for the assets being traded in at such time, and (b) expenditures during such period that, pursuant
to a written agreement, are reimbursed by a third Person (excluding any Loan Party or any of its Affiliates).


 


“Capitalized
Lease Obligation” means that portion of the obligations under a Capital Lease that is required to be capitalized in accordance
with GAAP.


 


“Capital
Lease” means a lease that is required to be capitalized for financial reporting purposes in accordance with GAAP.


 






    5


     


    

 


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


 


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


 


“CFC”
means a controlled foreign corporation (as that term is defined in the IRC) in which any Loan Party is a “United States shareholder”
within the meaning of Section 951(b) of the IRC.


 


“Change
of Control” shall mean (a) the transfer (in one transaction or a series of transactions) of all or substantially all of the
assets of any Borrower or any Loan Party (including Parent) to any Person or group (as such term is used in Section 13(d)(3) of the Exchange
Act), other than as permitted in Section 6.4 hereof; (b) the liquidation or dissolution of any Borrower or Parent or the adoption
of a plan by the stockholders of any Borrower or Parent relating to the dissolution or liquidation of any Borrower or Parent, other than
as permitted in Section 6.4 hereof; (c) the acquisition by any Person or group (as such term is used in Section 13(d)(3) of the
Exchange Act), except Parent, of beneficial ownership, directly or indirectly, of a majority of the voting power of the total outstanding
Voting Stock of any Loan Party or the Board of Directors (or similar governing authority) of any Loan Party; (d) with respect to Parent
only, the occupation at any time of a majority of the seats (other than vacant seats) on the board of directors of Parent by Persons
who were not (i) directors of the Parent on the date of this Agreement, (ii) nominated or appointed by the board of directors of Parent,
or (iii) approved by the board of directors of Parent as director candidates prior to their election, or any Person or two or more Persons
acting in concert, shall have acquired beneficial ownership, directly or indirectly, of the voting power of the total outstanding Voting
Stock of Parent with the ability to change the majority of seats (other than vacant seats) on the board of directors of Parent in the
foregoing manner set forth in this clause (d), or (e) the failure of Parent to own directly or indirectly one hundred (100%) percent
of the voting power of the total outstanding Voting Stock of any Borrower; (e) the failure of Kinergy to own directly or indirectly one
hundred (100%) percent of the voting power of the total outstanding Voting Stock of Alto Nutrients; or (f) a “Change in Control”
as defined in the Term Loan Agreement; provided that, notwithstanding anything to the contrary contained herein, the pledge of
the Equity Interests of the Loan Parties and their Subsidiaries pursuant to the terms of the Term Loan Documents shall not constitute
a Change of Control hereunder.


 


“Change
in Law” means the occurrence after the date of this Agreement of: (a) the adoption or effectiveness of any law, rule, regulation,
judicial ruling, judgment or treaty, (b) any change in any law, rule, regulation, judicial ruling, judgment or treaty or in the administration,
interpretation, implementation or application by any Governmental Authority of any law, rule, regulation, guideline or treaty, or (c)
the making or issuance by any Governmental Authority of any request, rule, guideline or directive, whether or not having the force of
law; provided, that notwithstanding anything in this Agreement to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection
Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith, and (ii) all requests, rules, guidelines
or directives concerning capital adequacy promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision
(or any successor or similar authority) or the United States or foreign regulatory authorities shall, in each case, be deemed to be a
“Change in Law,” regardless of the date enacted, adopted or issued.


 






    6


     


    

 


“Closing
Date” means the date of the making of the initial Revolving Loan (or other extension of credit) under this Agreement.


 


“Code”
means the California Uniform Commercial Code, as in effect from time to time.


 


“Collateral”
means all assets and interests in assets and proceeds thereof now owned or hereafter acquired by any Loan Party or its Subsidiaries in
or upon which a Lien is granted by such Person in favor of Agent or the Lenders under any of the Loan Documents.


 


“Collateral
Access Agreement” means a landlord waiver, bailee letter, or acknowledgement agreement of any lessor, warehouseman, processor,
consignee, or other Person in possession of, having a Lien upon, or having rights or interests in any Loan Party’s or its Subsidiaries’
books and records, Equipment, or Inventory, in each case, in form and substance reasonably satisfactory to Agent.


 


“Collections”
means, all cash, checks, notes, instruments, and other items of payment (including insurance proceeds, cash proceeds of asset sales,
rental proceeds and tax refunds).


 


“Commitment”
means, with respect to each Lender, its Revolver Commitment, in each case as such Dollar amounts are set forth beside such Lender’s
name under the applicable heading on Schedule C-1 to this Agreement or in the Assignment and Acceptance pursuant to which such
Lender became a Lender under this Agreement, as such amounts may be reduced or increased from time to time pursuant to assignments made
in accordance with the provisions of Section 13.1 of this Agreement.


 


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


 


“Compliance
Certificate” means a certificate substantially in the form of Exhibit C-1 to this Agreement delivered by the chief financial
officer or treasurer of Administrative Borrower to Agent.


 


“Confidential
Information” has the meaning specified therefor in Section 17.9(a) of this Agreement.


 


“Control
Agreement” means a control agreement, in form and substance reasonably satisfactory to Agent, executed and delivered by a Loan
Party or one of its Subsidiaries, Agent, and the applicable securities intermediary (with respect to a Securities Account) or bank (with
respect to a Deposit Account).


 


“Copyright
Security Agreement” has the meaning specified therefor in the Guaranty and Security Agreement.


 


“Covered
Entity” means any of the following:


 


(a)  a
“covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);


 


(b)  a
“covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or


 


(c)  a
“covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).


 


“Covered
Party” has the meaning specified therefor in Section 17.16 of this Agreement.


 


“Daily
Simple SOFR Adjustment” means a percentage equal to 0.10% per annum.


 


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


 




    7


     


    

 


“Default
Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81,
47.2 or 382.1, as applicable.


 


“Defaulting
Lender” means any Lender that (a) has failed to (i) fund all or any portion of its Loans within two Business Days of the date
such Loans were required to be funded hereunder unless such Lender notifies Agent and Administrative Borrower in writing that such failure
is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent,
together with any applicable Default or Event of Default, shall be specifically identified in such writing) has not been satisfied, or
(ii) pay to Agent, Issuing Bank, or any other Lender any other amount required to be paid by it hereunder (including in respect of its
participation in Letters of Credit) within two Business Days of the date when due, (b) has notified any Borrower, Agent or Issuing Bank
in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless
such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is
based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable
Default or Event of Default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed,
within three Business Days after written request by Agent or Administrative Borrower, to confirm in writing to Agent and Administrative
Borrower that it will comply with its prospective funding obligations hereunder (provided, that such Lender shall cease to be
a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by Agent and Administrative Borrower), or (d)
has, or has a direct or indirect parent company that has, (i) become the subject of any Insolvency Proceeding, (ii) had appointed for
it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization
or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory
authority acting in such a capacity, or (iii) become the subject of a Bail-in Action; provided, that a Lender shall not be a Defaulting
Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company
thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the
jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such
Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.
Any determination by Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive
and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender upon delivery of written notice of such
determination to Administrative Borrower, Issuing Bank, and each Lender.


 


“Defaulting
Lender Rate” means the Base Rate plus the Applicable Margin.


 


“Deposit
Account” means any deposit account (as that term is defined in the Code).


 


“Designated
Account” means the Deposit Account of Administrative Borrower identified on Schedule D-1 to this Agreement (or such
other Deposit Account of Administrative Borrower located at Designated Account Bank that has been designated as such, in writing, by
Borrowers to Agent).


 


“Designated
Account Bank” has the meaning specified therefor in Schedule D-1 to this Agreement (or such other bank that is located
within the United States that has been designated as such, in writing, by Borrowers to Agent).


 


“Dilution”
means, as of any date of determination, a percentage, based upon the experience of the immediately prior twelve months (or such
shorter period as Agent may determine, in its Permitted Discretion), that is the result of dividing the Dollar amount of
(a) bad debt write-downs, discounts, advertising allowances, credits, or other dilutive items with respect to Borrowers’
Accounts during such period, by (b) Borrowers’ billings with respect to Accounts during such period.


 


“Dilution
Reserve” means, as of any date of determination, an amount sufficient to reduce the advance rate against Eligible Accounts
by the extent to which Dilution is in excess of 5%.


 






    8


     


    

 


“Disqualified
Equity Interests” means any Equity Interests that, by their terms (or by the terms of any security or other Equity Interests
into which they are convertible or for which they are exchangeable), or upon the happening of any event or condition (a) matures or are
mandatorily redeemable (other than solely for Qualified Equity Interests), pursuant to a sinking fund obligation or otherwise (except
as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control
or asset sale event shall be subject to the prior repayment in full of the Loans and all other Obligations that are accrued and payable
and the termination of the Commitments), (b) are redeemable at the option of the holder thereof (other than solely for Qualified Equity
Interests), in whole or in part, (c) provide for the scheduled payments of dividends in cash, or (d) are or become convertible into or
exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Equity Interests, in each case, prior
to the date that is 180 days after the Maturity Date.


 


“Disqualified
Institution” means, on any date, (a) any Person designated by Administrative Borrower as a “Disqualified Institution”
by written notice delivered to Agent prior to the date hereof, and (b) those Persons who are direct competitors of the Borrowers identified
in writing by Administrative Borrower to Agent from time to time, subject to the written consent of Agent; provided, that “Disqualified
Institutions” shall exclude any Person that Administrative Borrower has designated as no longer being a “Disqualified Institution”
by written notice delivered to Agent from time to time; provided further, that in connection with any assignment or participation,
the Assignee or Participant with respect to such proposed assignment or participation that is an investment bank, a commercial bank,
a finance company, a fund, or other Person which merely has an economic interest in any such direct competitor, and is not itself such
a direct competitor of Borrower or its Subsidiaries, shall not be deemed to be a Disqualified Institution for the purposes of this definition.


 


“Documentation
Agent” has the meaning set forth in the preamble to this Agreement.


 


“Dollars”
or “$” means United States dollars.


 


“Domestic
Subsidiary” means any Subsidiary of any Borrower that is not a Foreign Subsidiary.


 


“Drawing
Document” means any Letter of Credit or other document presented for purposes of drawing under any Letter of Credit, including
by electronic transmission such as SWIFT, electronic mail, facsimile or computer generated communication.


 


“EBITDA”
means, with respect to any fiscal period and with respect to Borrowers, determined, in each case, on a consolidated basis in accordance
with GAAP:


 


(a)
the consolidated net income (or loss),


 


minus


 


(b)
without duplication, the sum of the following amounts for such period to the extent included in determining consolidated net income (or
loss) for such period:


 


(i)
extraordinary gains,


 


(ii)
interest income,


 


(iii)
Management Fees for such period to the extent paid to Parent in such period but are attributable to any prior period (all to the extent
deducted in the computation of consolidated net income or loss for such period), and


 


(iv)  non-cash
income for such period (all to the extent included in the computation of consolidated net income or loss for such period),


 


plus


 


(c)
without duplication, the sum of the following amounts for such period to the extent included in determining consolidated net income (or
loss) for such period:


 


(i)
non-cash extraordinary losses,


 






    9


     


    

 


(ii)
Interest Expense (to the extent deducted in the computation of consolidated net income or loss for such period),


 


(iii)
income taxes (to the extent deducted in the computation of consolidated net income or loss for such period),


 


(iv)
depreciation and amortization,(including amortization of deferred financing fees), non-cash impairment charges, imputed interest and
deferred compensation, non-cash inventory valuation adjustments, non-cash mark-to-market of derivative instruments and bank fees paid
for such period (all to the extent deducted in the computation of consolidated net income or loss for such period), all in accordance
with GAAP, and


 


(v)
Management Fees for such period to the extent not paid to Parent.


 


“EEA
Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject
to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution
described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary
of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.


 


“EEA
Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.


 


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


 


“Eligible
Accounts” shall mean Accounts created by a Borrower that in each case satisfy the criteria set forth below as determined by
Agent in good faith and in the exercise of its reasonable credit judgment. In general, Accounts shall be Eligible Accounts if:


 


(a)
 such Accounts arise from the actual and bona fide sale and delivery of goods bysuch Borrower or rendition of services by such
Borrower in the ordinary course of its business which transactions are completed in accordance with the terms and provisions contained
in any documents related thereto;


 


(b)
[intentionally omitted];


 


(c)
such Accounts comply with the terms and conditions contained in Section 4.2 of this Agreement;


 


(d)
such Accounts do not arise from sales on consignment, guaranteed sale, sale and return, sale on approval, or similar terms under which
payment by the account debtor may be conditional or contingent;


 


(e)
the chief executive office of the account debtor with respect to such Accounts is located in the United States of America or Canada (provided,
that, at any time promptly upon Agent’s request, such Borrower shall execute and deliver, or cause to be executed and delivered,
such other agreements, documents and instruments as may be reasonably required by Agent to perfect the security interests of Agent in
those Accounts of an account debtor with its chief executive office or principal place of business in Canada in accordance with the applicable
laws of the Province of Canada in which such chief executive office or principal place of business is located and take or cause to be
taken such other and further actions as Agent may reasonably request to enable Agent as secured party with respect thereto to collect
such Accounts under the applicable Federal or Provincial laws of Canada) or, at Agent’s option, if the chief executive office and
principal place of business of the account debtor with respect to such Accounts is located other than in the United States of America
or Canada, then if: the account debtor has delivered to such Borrower an irrevocable letter of credit issued or confirmed by a bank reasonably
satisfactory to Agent and payable only in the United States of America and in U.S. dollars, sufficient to cover such Account, in form
and substance reasonably satisfactory to Agent and if required by Agent, the original of such letter of credit has been delivered to
Agent or Agent’s agent and the issuer thereof, and such Borrower has complied with the terms of Section 7(d) of the Guaranty and
Security Agreement with respect to the assignment of the proceeds of such letter of credit to Agent or naming Agent as transferee beneficiary
thereunder, as Agent may specify, or such Account is subject to credit insurance payable to Agent issued by an insurer and on terms
and in an amount reasonably acceptable to Agent, or such Account is otherwise reasonably acceptable in all respects to Agent (subject
to such lending formula with respect thereto as Agent may determine in good faith and in the exercise of its reasonable credit judgment);


 






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(f)
such Accounts do not consist of progress billings (such that the obligation of the account debtors with respect to such Accounts is conditioned
upon such Borrower’s satisfactory completion of any further performance under the agreement giving rise thereto), bill and hold
invoices or retainage invoices, except as to bill and hold invoices, if Agent shall have received an agreement in writing from the account
debtor, in form and substance reasonably satisfactory to Agent, confirming the unconditional obligation of the account debtor to take
the goods related thereto and pay such invoice;


 


(g)
the account debtor with respect to such Accounts has not asserted a counterclaim, defense or dispute and is not owed or does not claim
to be owed any amounts that may give rise to any right of setoff or recoupment against such Accounts (but the portion of the Accounts
of such account debtor in excess of the amount at any time and from time to time owed by such Borrower to such account debtor or claimed
owed by such account debtor may be deemed Eligible Accounts);


 


(h)
there are no facts, events or occurrences which would impair the validity, enforceability or collectability of such Accounts or reduce
the amount payable or delay payment thereunder;


 


(i)
 such Accounts are subject to the first priority, valid and perfected security interest of Agent and any goods giving rise thereto are
not, and were not at the time of the sale thereof, subject to any liens except those permitted in this Agreement that are subject to
an intercreditor agreement in form and substance satisfactory to Agent between the holder of such security interest or lien and Agent;


 


(j)
neither the account debtor nor any officer or employee of the account debtor with respect to such Accounts is an officer, employee, agent
or other Affiliate of any Borrower or any Loan Party;


 


(k)
the account debtors with respect to such Accounts are not any foreign government, the United States of America, any State, political
subdivision, department, agency or instrumentality thereof, unless, if the account debtor is the United States of America, any State,
political subdivision, department, agency or instrumentality thereof, upon Agent’s request, the Federal Assignment of Claims Act
of 1940, as amended or any similar State or local law, if applicable, has been complied with in a manner satisfactory to Agent in its
Permitted Discretion;


 


(l)
there are no proceedings or actions which are threatened or pending against the account debtors with respect to such Accounts which might
result in any material adverse change in any such account debtor’s financial condition (including, without limitation, any bankruptcy,
dissolution, liquidation, reorganization or similar proceeding);


 


(m)
the aggregate amount of such Accounts of the Borrowers owing by a single account debtor do not constitute more than twenty (20%) percent
of the aggregate amount of all otherwise Eligible Accounts (but the portion of the Accounts not in excess of the applicable percentage
set forth above may be deemed Eligible Accounts and such applicable percentage may from time to time be increased by Agent in the exercise
of its Permitted Discretion at the request of Borrower, and may from time to time be reduced by Agent in the exercise of its sole discretion
(and, with respect to any such reduction below such initial percentages, in accordance with and subject to the terms hereof));


 


(n)
such Accounts are not unpaid more than (i) in the case of Accounts of Alto Nutrients, thirty (30) days after the original due date for
such Accounts or ninety (90) days after the date of the original invoice for them; provided that, with respect to Accounts due from Proctor
& Gamble, such ninety (90) day period shall be one hundred and fifty (150) days; and (ii) in the case of all other Accounts, thirty
(30) days after the original due date for such Accounts or forty-five (45) days after the date of the original invoice for them; provided
that, with respect to Accounts due from Proctor & Gamble, such forty-five (45) day period shall be one hundred and fifty (150) days;


 


(o)
the account debtor is not located in a state requiring the filing of a Notice of Business Activities Report or similar report in order
to permit such Borrower to seek judicial enforcement in such State of payment of such Account, unless such Borrower has qualified to
do business in such state or has filed a Notice of Business Activities Report or equivalent report for the then current year or such
failure to file and inability to seek judicial enforcement is capable of being remedied without any material delay or material cost;


 


(p)
such Accounts are owed by account debtors whose total indebtedness to such Borrower does not exceed the credit limit with respect to
such account debtors as determined by such Borrower from time to time, to the extent such credit limit as to any account debtor is established
consistent with the current practices of such Borrower as of the date hereof and such credit limit is reasonably acceptable to Agent
(but the portion of the Accounts not in excess of such credit limit may be deemed Eligible Accounts); and


 




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(q)
 such Accounts are owed by account debtors deemed creditworthy at all times by Agent in good faith and in the exercise of its reasonable
credit judgment;


 


(r)
such Accounts are not owed by an account debtor who has fifty percent (50%) or more of its aggregate Accounts ineligible under clauses
(b) or (n) of this definition; and


 


(s)
such Accounts do not arise from the sale of Pacific Ethanol Acquired Inventory unless the Special Eligibility Conditions have been satisfied
as reasonably determined by Agent in good faith; and


 


The
criteria for Eligible Accounts set forth above may only be changed and any new criteria for Eligible Accounts may only be established
by Agent in good faith and in the exercise of its reasonable credit judgment based on either: an event, condition or other circumstance
arising after the date hereof, or an event, condition or other circumstance existing on the date hereof to the extent Agent has no written
notice thereof from a Borrower prior to the date hereof, in either case under clause (i) or (ii) which adversely affects or could reasonably
be expected to adversely affect the Accounts in the good faith determination of Agent based upon the exercise of its reasonable credit
judgment. Any Accounts that are not Eligible Accounts shall nevertheless be part of the Collateral.


 


“Eligible
Finished Goods Inventory” means Inventory that qualifies as Eligible Inventory and consists of first quality finished goods
held for sale in the ordinary course of Borrowers’ business.


 


“Eligible
In-Transit Inventory” means shall mean, as to each Borrower, all finished goods Inventory of such Borrower (including ethanol,
corn, co-products, dry and wet distillers grain, corn oil, germ, and yeast) which is in transit to one of the Borrowers’ facilities
(as identified on Schedule 4.25), from one such facility to another or in transit to a customer of such Borrower and which Inventory
(a) (i) has been paid for and is owned by such Borrower, or (ii) is subject to a Letter of Credit, (b) is fully insured, (c) is subject
to a first priority security interest in and lien upon such goods in favor of Agent (except for any possessory lien upon such goods in
the possession of a freight carrier or shipping company securing only the freight charges for the transportation of such goods to Borrowers),
(d) to the extent requested by Agent, (i) is evidenced or deliverable pursuant to documents that have been delivered to Agent or an agent
acting on its behalf or designating Agent as consignee or (ii) Agent shall have received a Collateral Access Agreement from the freight
carrier or shipping company in possession of the goods, duly authorized, executed and delivered by such freight carrier or shipping company
in favor of Agent, (e) is not Pacific Ethanol Acquired Inventory unless the Special Eligibility Conditions have been satisfied as reasonably
determined by Agent in good faith and (f) is otherwise deemed to be “Eligible Inventory” hereunder.


 


“Eligible
Inventory” means , as to each Borrower, Inventory of such Borrower (excluding any Swap Inventory) consisting of (i)
finished goods held for resale in the ordinary course of the business of such Borrower, (ii) raw materials consisting of corn and
feed stock and (iii) certain other raw materials of the such Borrower deemed eligible by Agent in good faith and in the exercise of
its reasonable credit judgment, that in each case satisfy the criteria set forth below as determined by Agent in good faith and in
the exercise of its reasonable credit judgment. In general, Eligible Inventory shall not include: (a) (i) raw materials described in
clause (iii) above, except to the extent deemed eligible by Agent in good faith and in the exercise of its reasonable credit
judgment, and work in process, (ii) components which are not part of finished goods, (iii) spare parts for equipment, (iv) packaging
and shipping materials, or (v) supplies used or consumed in such Borrower’s business; (b) Inventory (i) at premises other than
those owned or leased and controlled by a Borrower unless Agent has received a Collateral Access Agreement or (ii) constituting
Pacific Ethanol Acquired Inventory commingled with assets of the Pacific Ethanol Affiliates or any other Person (besides a
Borrower);” therefor; (c) Inventory subject to a security interest or lien in favor of any Person other than Agent except
those permitted in this Agreement and, if such security interest secures Indebtedness for borrowed money or could have priority over
the security interest in favor of Agent, that are subject to an intercreditor agreement in form and substance satisfactory to Agent
between the holder of such security interest or lien and Agent; (d) Inventory located at the premises of or in the possession of any
Ethanol Holder that has become the subject of any Insolvency Proceeding or had appointed for it a receiver, custodian, conservator,
trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its
business or assets, (e) bill and hold goods; (f) unserviceable, obsolete or slow moving Inventory; (g) Inventory that is not subject
to the first priority, valid and perfected security interest of Agent; (h) damaged and/or defective Inventory or returned Inventory
to the extent that such returned Inventory remains subject to an Account deemed to be an Eligible Account hereunder; (i) Inventory
purchased or sold on consignment; (j) in-transit inventory other than Eligible In-Transit Inventory and (k) Inventory located
outside the United States of America (except, if approved in writing by Agent in its sole discretion, Canada).


 






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The
criteria for Eligible Inventory set forth above may only be changed and any new criteria for Eligible Inventory may only be established
by Agent in good faith and in the exercise of its reasonable credit judgment based on either: (i) an event, condition or other circumstance
arising after the date hereof, or (ii) an event, condition or other circumstance existing on the date hereof to the extent Agent has
no written notice thereof from any Borrower (or Administrative Borrower on behalf of any Borrower) prior to the date hereof, in either
case under clause (i) or (ii) which adversely affects or could reasonably be expected to adversely affect the Inventory in the good faith
determination of Agent based upon the exercise of its reasonable credit judgment. Pacific Ethanol Acquired Inventory shall not constitute
Eligible Inventory unless the Special Eligibility Conditions have been satisfied as reasonably determined by Agent in good faith and
such Pacific Ethanol Acquired Inventory is otherwise deemed Eligible Inventory hereunder. Any Inventory that is not Eligible Inventory
shall nevertheless be part of the Collateral.


 


“Eligible
Transferee” means (a) any Lender (other than a Defaulting Lender), any Affiliate of any Lender and any Related Fund of any
Lender; (b) (i) a commercial bank organized under the laws of the United States or any state thereof, and having total assets in excess
of $1,000,000,000; (ii) a savings and loan association or savings bank organized under the laws of the United States or any state thereof,
and having total assets in excess of $1,000,000,000; (iii) a commercial bank organized under the laws of any other country or a political
subdivision thereof; provided, that (A) (x) such bank is acting through a branch or agency located in the United States, or (y)
such bank is organized under the laws of a country that is a member of the Organization for Economic Cooperation and Development or a
political subdivision of such country, and (B) such bank has total assets in excess of $1,000,000,000; (c) any other entity (other than
a natural person) that is an “accredited investor” (as defined in Regulation D under the Securities Act) that extends credit
or buys loans as one of its businesses including insurance companies, investment or mutual funds and lease financing companies, and having
total assets in excess of $1,000,000,000; and (d) during the continuation of an Event of Default, any other Person approved by Agent.


 


“Employee
Benefit Plan” means an employee benefit plan within the meaning of Section 3(3) of ERISA, which is sponsored, maintained or
contributed to by any Loan Party for the benefit of its respective employees.


 


“Environmental
Action” means any written complaint, summons, citation, notice, directive, order, claim, litigation, investigation,
judicial or administrative proceeding, judgment, letter, or other written communication from any Governmental Authority, or any
third party involving violations of Environmental Laws or releases of Hazardous Materials (a) from any assets, properties, or
businesses of any Borrower, any Subsidiary of any Borrower, or any of their predecessors in interest, (b) from adjoining properties
or businesses, or (c) from or onto any facilities which received Hazardous Materials generated by any Borrower, any Subsidiary of
any Borrower, or any of their predecessors in interest.


 


“Environmental
Law” means any applicable federal, state, provincial, foreign or local statute, law, rule, regulation, ordinance, code, binding
and enforceable guideline, binding and enforceable written policy, or rule of common law now or hereafter in effect and in each case
as amended, or any judicial or administrative interpretation thereof, including any judicial or administrative order, consent decree
or judgment, in each case, to the extent binding on any Loan Party or its Subsidiaries, relating to the environment, the effect of the
environment on employee health, or Hazardous Materials, in each case as amended from time to time.


 


“Environmental
Liabilities” means all liabilities, monetary obligations, losses, damages, costs and expenses (including all reasonable fees,
disbursements and expenses of counsel, experts, or consultants, and costs of investigation and feasibility studies), fines, penalties,
sanctions, and interest incurred as a result of any claim or demand, or Remedial Action required, by any Governmental Authority or any
third party, and which relate to any Environmental Action.


 


“Environmental
Lien” means any Lien in favor of any Governmental Authority for Environmental Liabilities.


 


“Equipment”
means equipment (as that term is defined in the Code).


 


“Equity
Interests” means, with respect to a Person, all of the shares, options, warrants, interests, participations, or other equivalents
(regardless of how designated) of or in such Person, whether voting or nonvoting, including capital stock (or other ownership or profit
interests or units), preferred stock, or any other “equity security” (as such term is defined in Rule 3a11-1 of the General
Rules and Regulations promulgated by the SEC under the Exchange Act).


 


“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended, and any successor statute thereto.


 






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“ERISA
Affiliate” ” means (i) any Person subject to ERISA whose employees are treated as employed by the same employer as the
employees of any Loan Party or its Subsidiaries under IRC Section 414(b), (ii) any trade or business subject to ERISA whose employees
are treated as employed by the same employer as the employees of any Loan Party or its Subsidiaries under IRC Section 414(c), (iii) any
organization subject to ERISA that is a member of an affiliated service group of which any Loan Party or any of its Subsidiaries is a
member under IRC Section 414(m), or (iv) any Person subject to ERISA that is a party to an arrangement with any Loan Party or any of
its Subsidiaries and whose employees are aggregated with the employees of such Loan Party or its Subsidiaries under IRC Section 414(o).


 


“Ethanol
Holder” means any Person that has possession of, or on whose premises is located, any Ethanol Products owned by any Loan Party
or in which any Loan Party has or is deemed by law to have rights in or the power to convey rights in.


 


“Ethanol
Products” mean, collectively, ethanol, ethanol co-products, corn, corn co-products, and co-products of the ethanol production
process (which may include any of the following: Corn Gluten Meal, Corn Gluten Feed, Wet Distillers Grains, Dry Distillers Grains, Corn
Condensed Distillers Solubles, Corn Germ, Distillers Grains with Solubles, Corn Oil, and Yeast).


 


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


 


“Event
of Default” has the meaning specified therefor in Section 8 of this Agreement.


 


“Excess”
has the meaning specified therefor in Section 2.14 of this Agreement.


 


“Excess
Availability” means, as of any date of determination, the amount equal to Availability minus the sum of (a) the
aggregate amount of all then outstanding and unpaid trade payables and other obligations of Borrowers which are past due as of the end
of the immediately preceding month or at Agent’s option, as of a more recent date based on such reports as Agent may from time
to time specify (other than trade payables or other obligations being contested or disputed by Borrowers in good faith), plus (b) without
duplication, the amount of checks issued by Borrowers to pay trade payables and other obligations which are past due as of the end of
the immediately preceding month or at Agent’s option, as of a more recent date based on such reports as Agent may from time to
time specify (other than trade payables or other obligations being contested or disputed by Borrowers in good faith), but not yet sent.


 


“Excess
Cash Flow” shall mean, without duplication, with respect to any fiscal period of Borrowers: (a) EBITDA for such fiscal period,
less (b) the sum of (i) all cash Interest Expense during such fiscal period, plus (ii) unfinanced Capital Expenditures made or incurred
by the Borrowers during such fiscal period, plus (iii) all regularly scheduled (as determined at the beginning of the respective fiscal
period) principal payments of Indebtedness for borrowed money incurred, paid or assumed by the Borrowers and Indebtedness with respect
to Capital Leases (and without duplicating items in (a)(i) and (iii) of this definition, the interest component with respect to Indebtedness
under Capital Leases) incurred, paid or assumed by the Borrowers during such fiscal period, plus (c) taxes paid by the Borrowers during
such fiscal period in cash.


 


“Exchange
Act” means the Securities Exchange Act of 1934, as in effect from time to time.


 


“Excluded
Swap Obligation” means, with respect to any Loan Party, any Swap Obligation if, and to the extent that, all or a portion of
the guaranty of such Loan Party of (including by virtue of the joint and several liability provisions of Section 2.15), or the
grant by such Loan Party of a security interest to secure, such Swap Obligation (or any guaranty thereof) is or becomes illegal under
the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official
interpretation of any thereof) by virtue of such Loan Party’s failure for any reason to constitute an “eligible contract
participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the guaranty of such Loan Party
or the grant of such security interest becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master
agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to
swaps for which such guaranty or security interest is or becomes illegal.


 






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“Excluded
Taxes” means (i) any tax imposed on the net income or net profits of any Lender or any Participant (including any branch
profits taxes), in each case imposed by the jurisdiction (or by any political subdivision or taxing authority thereof) in which such
Lender or such Participant is organized or the jurisdiction (or by any political subdivision or taxing authority thereof) in which
such Lender’s or such Participant’s principal office is located in or as a result of a present or former connection
between such Lender or such Participant and the jurisdiction or taxing authority imposing the tax (other than any such connection
arising solely from such Lender or such Participant having executed, delivered or performed its obligations or received payment
under, or enforced its rights or remedies under this Agreement or any other Loan Document), (ii) United States federal withholding
taxes that would not have been imposed but for a Lender’s or a Participant’s failure to comply with the requirements of Section
16.2 of this Agreement, (iii) any United States federal withholding taxes that would be imposed on amounts payable to a Foreign
Lender based upon the applicable withholding rate in effect at the time such Foreign Lender becomes a party to this Agreement (or
designates a new lending office, other than a designation made at the request of a Loan Party), except that Excluded Taxes
shall not include (A) any amount that such Foreign Lender (or its assignor, if any) was previously entitled to receive pursuant to Section
16.1 of this Agreement, if any, with respect to such withholding tax at the time such Foreign Lender becomes a party to this
Agreement (or designates a new lending office), and (B) additional United States federal withholding taxes that may be imposed after
the time such Foreign Lender becomes a party to this Agreement (or designates a new lending office), as a result of a change in law,
rule, regulation, treaty, order or other decision or other Change in Law with respect to any of the foregoing by any Governmental
Authority, and (iv) any United States federal withholding taxes imposed under FATCA.


 


“Existing
Letters of Credit” means those letters of credit issued pursuant to the Existing Loan Agreement for the account of a Borrower
or any Guarantor or for which such Borrower or Guarantor is otherwise liable listed on Schedule E-1 hereto, as the same now exist or
may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced.


 


“Existing
Loan Agreement” shall mean the Amended and Restated Loan and Security Agreement, dated May 4, 2012, entered into and executed
between Kinergy, Wells Fargo Bank, National Association, as Agent, and Wells Fargo Bank, National Association, as Sole Lead Arranger,
Manager and Bookrunner.


 


“Extraordinary
Advances” has the meaning specified therefor in Section 2.3(d)(iii) of this Agreement.


 


“FATCA”
means Sections 1471 through 1474 of the IRC, as of the date of this Agreement (or any amended or successor version that is substantively
comparable and not materially more onerous to comply with), and (a) any current or future regulations or official interpretations thereof,
(b) any agreements entered into pursuant to Section 1471(b)(1) of the IRC, and (c) any intergovernmental agreement entered into by the
United States (or any fiscal or regulatory legislation, rules, or practices adopted pursuant to any such intergovernmental agreement
entered into in connection therewith).


 


“FCPA”
means the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder.


 


“Fee
Letter” means that certain fee letter, dated as of even date with this Agreement, among Borrowers and Agent, in form and substance
reasonably satisfactory to Agent.


 


“Federal
Funds Rate” means, for any period, a fluctuating interest rate per annum equal to, for each day during such period, the weighted
average of the rates on overnight Federal funds transactions with members of the Federal Reserve System, as published on the next succeeding
Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average
of the quotations for such day on such transactions received by Agent from three Federal funds brokers of recognized standing selected
by it (and, if any such rate is below zero, then the rate determined pursuant to this definition shall be deemed to be zero).


 


“Fixed
Charges” means, with respect to any fiscal period with respect to Borrowers determined on a consolidated basis in accordance
with GAAP, the sum, without duplication, of (a) Interest Expense required to be paid by the Borrowers (other than interest paid-in-kind,
amortization of financing fees, and other non-cash Interest Expense) during such period, plus (b) all principal payments in respect of
Indebtedness made by the Borrowers during such period (excluding payments in respect of Loans which do not result in a permanent reduction
of the Maximum Revolver Amount but including payments of Indebtedness with respect to Capital Leases), plus (c) all federal, state, and
local income taxes required to be paid by the Borrowers during such period, and plus (d) all Restricted Payments paid during such period
(and without duplicating items in (a), (b), (c) and (d) of this definition, the interest component with respect to Indebtedness under
Capital Leases required to be paid by the Borrowers during such period).


 






    15


     


    

 


“Fixed
Charge Coverage Ratio” means, with respect to any fiscal period and with respect to Borrowers determined on a consolidated
basis in accordance with GAAP, the ratio of (a) EBITDA for such period minus Unfinanced Capital Expenditures made (to the
extent not already incurred in a prior period) or incurred during such period, minus the aggregate amount of consideration
and other transaction expenses paid by Borrowers with respect to the Fuel Logistics Acquisition (net of the amount of any such consideration
and transaction expenses provided by Parent on behalf of Borrowers), to (b) Fixed Charges of such Borrower and its Subsidiaries, on a
consolidated basis, for such period.


 


“Foreign
Lender” means any Lender or Participant that is not a United States person within the meaning of IRC section 7701(a)(30).


 


“Fuel
Logistics Acquisition” means that certain proposed transaction whereby a Loan Party or Subsidiary thereof shall acquire a majority
Equity Interest in Fuel Logistics LLC, an Oregon limited liability company, or a newly formed entity, from Lane Forest Products, LLC,
Inc. an Oregon corporation, for the purpose of transloading by direct connection via an offloading and pumping facility to the Kinder
Morgan facility located on Prairie Road in Eugene, Oregon.


 


“Funded
Indebtedness” means, as of any date of determination, all Indebtedness for borrowed money or letters of credit of Borrowers,
determined on a consolidated basis in accordance with GAAP, including, in any event, but without duplication, with respect to the Loan
Parties and their Subsidiaries, the Revolver Usage, and the amount of their Capitalized Lease Obligations.


 


“Funding
Date” means the date on which a Borrowing occurs.


 


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


 


“Governing
Documents” means, with respect to any Person, the certificate or articles of incorporation, by-laws, or other organizational
documents of such Person.


 


“Governmental
Authority” means the government of any nation or any political subdivision thereof, whether at the national, state, territorial,
provincial, county, municipal or any other level, and any agency, authority, instrumentality, regulatory body, court, central bank or
other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of, or pertaining
to, government (including any supra-national bodies such as the European Union or the European Central Bank).


 


“Guarantor”
means (a) Parent and any other Person that is a “Guarantor” under the Guaranty and Security Agreement, and (b) each other Person
that becomes a guarantor after the Closing Date pursuant to Section 5.11 of this Agreement.


 


“Guaranty
and Security Agreement” means a guaranty and security agreement, dated as of even date with this Agreement, in form and substance
reasonably satisfactory to Agent, executed and delivered by each of the Loan Parties to Agent.


 


“Hazardous
Materials” means (a) substances that are defined or listed in, or otherwise classified pursuant to, any applicable laws or
regulations as “hazardous substances,” “hazardous materials,” “hazardous wastes,” “toxic substances,”
or any other formulation intended to define, list, or classify substances by reason of deleterious properties such as ignitability, corrosivity,
reactivity, carcinogenicity, reproductive toxicity, or “EP toxicity”, (b) oil, petroleum, or petroleum derived substances,
natural gas, natural gas liquids, synthetic gas, drilling fluids, produced waters, and other wastes associated with the exploration,
development, or production of crude oil, natural gas, or geothermal resources, (c) any flammable substances or explosives or any radioactive
materials, and (d) asbestos in any form or electrical equipment that contains any oil or dielectric fluid containing levels of polychlorinated
biphenyls in excess of 50 parts per million.


 


“Hedge
Agreement” means a “swap agreement” as that term is defined in Section 101(53B)(A) of the Bankruptcy Code.


 






    16


     


    

 


“Hedge
Obligations” means any and all obligations or liabilities, whether absolute or contingent, due or to become due, now existing
or hereafter arising, of each Borrower and its Subsidiaries arising under, owing pursuant to, or existing in respect of Hedge Agreements
entered into with one or more of the Hedge Providers.


 


“Hedge
Provider” means Wells Fargo or any of its Affiliates.


 


“Increase”
has the meaning specified therefor in Section 2.14 of this Agreement.


 


“Increase
Date” has the meaning specified therefor in Section 2.14 of this Agreement.


 


“Increase
Joinder” has the meaning specified therefor in Section 2.14 of this Agreement.


 


“Increased
Reporting Event” means if at any time (a) Excess Availability is less than fifteen percent (15%) of the Maximum Revolver Amount
or (b) a Default or Event of Default shall have occurred and be continuing.


 


“Increased
Reporting Period” means the period commencing after the continuance of an Increased Reporting Event and continuing until the
date when no Increased Reporting Event has occurred for 90 consecutive days.


 


“Indebtedness”
as to any Person means (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds,
debentures, notes, or other similar instruments and all reimbursement or other obligations in respect of letters of credit, bankers acceptances,
or other financial products, (c) all obligations of such Person as a lessee under Capital Leases, (d) all obligations or liabilities
of others secured by a Lien on any asset of such Person, irrespective of whether such obligation or liability is assumed, (e) all obligations
of such Person to pay the deferred purchase price of assets (other than trade payables incurred in the ordinary course of business and
repayable in accordance with customary trade practices and, for the avoidance of doubt, other than royalty payments payable in the ordinary
course of business in respect of non-exclusive licenses) and any earn-out or similar obligations, (f) all monetary obligations of such
Person owing under Hedge Agreements (which amount shall be calculated based on the amount that would be payable by such Person if the
Hedge Agreement were terminated on the date of determination), (g) any Disqualified Equity Interests of such Person, and (h) any obligation
of such Person guaranteeing or intended to guarantee (whether directly or indirectly guaranteed, endorsed, co-made, discounted, or sold
with recourse) any obligation of any other Person that constitutes Indebtedness under any of clauses (a) through (g) above. For purposes
of this definition, (i) the amount of any Indebtedness represented by a guaranty or other similar instrument shall be the lesser of the
principal amount of the obligations guaranteed and still outstanding and the maximum amount for which the guaranteeing Person may be
liable pursuant to the terms of the instrument embodying such Indebtedness, and (ii) the amount of any Indebtedness which is limited
or is non-recourse to a Person or for which recourse is limited to an identified asset shall be valued at the lesser of (A) if applicable,
the limited amount of such obligations, and (B) if applicable, the fair market value of such assets securing such obligation.


 


“Indemnified
Liabilities” has the meaning specified therefor in Section 10.3 of this Agreement.


 


“Indemnified
Person” has the meaning specified therefor in Section 10.3 of this Agreement.


 


“Indemnified
Taxes” means, (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by, or on account of any
obligation of, any Loan Party under any Loan Document, and (b) to the extent not otherwise described in the foregoing clause (a), Other
Taxes.


 


“Insolvency
Proceeding” means any proceeding commenced by or against any Person under any provision of the Bankruptcy Code or under any
other state or federal bankruptcy or insolvency law, assignments for the benefit of creditors, formal or informal moratoria, compositions,
extensions generally with creditors, or proceedings seeking reorganization, arrangement, or other similar relief.


 






    17


     


    

 


“Intercreditor
Agreement” means the Intercreditor Agreement, dated on or about the date hereof, between Agent and Term Loan Agent, and acknowledged
by the Loan Parties.


 


“Interest
Expense” means, for any period, the aggregate of the interest expense of Borrowers for such period, determined on a consolidated
basis in accordance with GAAP.


 


“Inventory”
means inventory (as that term is defined in the Code).


 


“Investment”
means, with respect to any Person, any investment by such Person in any other Person (including Affiliates) in the form of loans, guarantees,
advances, capital contributions (excluding (a) commission, travel, and similar advances to officers and employees of such Person made
in the ordinary course of business, and (b) bona fide accounts receivable arising in the ordinary course of business), or acquisitions
of Indebtedness, Equity Interests, or all or substantially all of the assets of such other Person (or of any division or business line
of such other Person), and any other items that are or would be classified as investments on a balance sheet prepared in accordance with
GAAP. The amount of any Investment shall be the original cost of such Investment plus the cost of all additions thereto,
without any adjustment for increases or decreases in value, or write-ups, write-downs, or write-offs with respect to such Investment.


 


“IRC”
means the Internal Revenue Code of 1986, as amended, and any successor statute thereto.


 


“ISP”
means, with respect to any Letter of Credit, the International Standby Practices 1998 (International Chamber of Commerce Publication
No. 590) and any version or revision thereof accepted by the Issuing Bank for use.


 


“Issuer
Document” means, with respect to any Letter of Credit, a letter of credit application, a letter of credit agreement, or any
other document, agreement or instrument entered into (or to be entered into) by a Borrower in favor of Issuing Bank and relating to such
Letter of Credit.


 


“Issuing
Bank” means Wells Fargo or any other Lender that, at the request of Borrowers and with the consent of Agent, agrees, in such
Lender’s sole discretion, to become an Issuing Bank for the purpose of issuing Letters of Credit pursuant to Section 2.11
of this Agreement, and Issuing Bank shall be a Lender.


 


“Joinder”
means a joinder agreement substantially in the form of Exhibit J-1 to this Agreement.


 


“Landlord
Reserve” means, as to each location at which a Borrower has Inventory or books and records located and as to which a Collateral
Access Agreement has not been received by Agent, a reserve in an amount equal to 3 months’ rent, storage charges, fees or other
amounts under the lease or other applicable agreement relative to such location or, if greater and Agent so elects, the number of months’
rent, storage charges, fess or other amounts for which the landlord, bailee, warehouseman or other property owner will have, under applicable
law, a Lien in the Inventory of such Borrower to secure the payment of such amounts under the lease or other applicable agreement relative
to such location.


 


“Lead
Arranger” has the meaning set forth in the preamble to this Agreement.


 


“Lender”
has the meaning set forth in the preamble to this Agreement, shall include Issuing Bank and the Swing Lender, and shall also include
any other Person made a party to this Agreement pursuant to the provisions of Section 13.1 of this Agreement and “Lenders”
means each of the Lenders or any one or more of them.


 


“Lender
Group” means each of the Lenders (including Issuing Bank and the Swing Lender) and Agent, or any one or more of them.


 






    18


     


    

 


“Lender
Group Expenses” means all (a) costs or expenses (including taxes and insurance premiums) required to be paid by any Loan
Party or its Subsidiaries under any of the Loan Documents that are paid, advanced, or incurred by the Lender Group, (b) documented
out-of-pocket fees or charges paid or incurred by Agent in connection with the Lender Group’s transactions with each Loan
Party and its Subsidiaries under any of the Loan Documents, including, photocopying, notarization, couriers and messengers,
telecommunication, public record searches, filing fees, recording fees, publication, real estate surveys, real estate title policies
and endorsements, and environmental audits, (c) Agent’s customary fees and charges imposed or incurred in connection with any
background checks or OFAC/PEP searches related to any Loan Party or its Subsidiaries, (d) Agent’s customary fees and charges
(as adjusted from time to time) with respect to the disbursement of funds (or the receipt of funds) to or for the account of any
Borrower (whether by wire transfer or otherwise), together with any out-of-pocket costs and expenses incurred in connection
therewith, (e) customary charges imposed or incurred by Agent resulting from the dishonor of checks payable by or to any Loan Party,
(f) reasonable, documented out-of-pocket costs and expenses paid or incurred by the Lender Group to correct any default or enforce
any provision of the Loan Documents, or during the continuance of an Event of Default, in gaining possession of, maintaining,
handling, preserving, storing, shipping, selling, preparing for sale, or advertising to sell the Collateral, or any portion thereof,
irrespective of whether a sale is consummated, (g) field examination, appraisal, and valuation fees and expenses of Agent related to
any field examinations, appraisals, or valuation to the extent of the fees and charges (and up to the amount of any limitation)
provided in Section 2.10 of this Agreement, (h) Agent’s and Lenders’ reasonable, documented costs and expenses
(including reasonable and documented attorneys’ fees and expenses) in defending any claims made or threatened against Agent or
any Lender arising out of the transactions contemplated hereby and under any other Loan Documents, except to the extent arising from
any such Agent’s or Lender’s gross negligence or willful misconduct, (i) Agent’s reasonable, documented costs and
expenses (including reasonable and documented attorneys’ fees and expenses) relative to any other lawsuit or adverse
proceeding paid or incurred, whether in enforcing or defending the Loan Documents or otherwise in connection with the transactions
contemplated by the Loan Documents, Agent’s Liens in and to the Collateral, or the Lender Group’s relationship with any
Loan Party or any of its Subsidiaries, (i) Agent’s reasonable and documented costs and expenses (including reasonable and
documented attorneys’ fees and due diligence expenses) incurred in advising, structuring, drafting, reviewing, administering
(including travel, meals, and lodging), syndicating (including reasonable costs and expenses relative to the rating of CUSIP,
DXSyndicateTM, SyndTrak or other communication costs incurred in connection with a syndication of the loan facilities), or
amending, waiving, or modifying the Loan Documents, and (j) Agent’s reasonable and documented costs and expenses (including
reasonable and documented attorneys, accountants, consultants, and other advisors fees and expenses) incurred in terminating,
enforcing (including attorneys, accountants, consultants, and other advisors fees and expenses incurred in connection with a
“workout,” a “restructuring,” or an Insolvency Proceeding concerning any Loan Party or any of its
Subsidiaries or in exercising rights or remedies under the Loan Documents), or defending the Loan Documents, irrespective of whether
a lawsuit or other adverse proceeding is brought, or in taking any enforcement action or any Remedial Action with respect to the
Collateral.


 


“Lender
Group Representatives” has the meaning specified therefor in Section 17.9 of this Agreement.


 


“Lender-Related
Person” means, with respect to any Lender, such Lender, together with such Lender’s Affiliates, officers, directors,
employees, attorneys, and agents.


 


“Letter
of Credit” means a letter of credit (as that term is defined in the Code) issued by Issuing Bank.


 


“Letter
of Credit Collateralization” means either (a) providing cash collateral (pursuant to documentation reasonably satisfactory
to Agent (including that Agent has a first priority perfected Lien in such cash collateral), including provisions that specify that the
Letter of Credit Fees and all commissions, fees, charges and expenses provided for in Section 2.11(k) of this Agreement (including
any fronting fees) will continue to accrue while the Letters of Credit are outstanding) to be held by Agent for the benefit of the Revolving
Lenders in an amount equal to 105% of the then existing Letter of Credit Usage, (b) delivering to Agent documentation executed by all
beneficiaries under the Letters of Credit, in form and substance reasonably satisfactory to Agent and Issuing Bank, terminating all of
such beneficiaries’ rights under the Letters of Credit, or (c) providing Agent with a standby letter of credit, in form and substance
reasonably satisfactory to Agent, from a commercial bank acceptable to Agent (in its sole discretion) in an amount equal to 105% of the
then existing Letter of Credit Usage (it being understood that the Letter of Credit Fee and all fronting fees set forth in this Agreement
will continue to accrue while the Letters of Credit are outstanding and that any such fees that accrue must be an amount that can be
drawn under any such standby letter of credit).


 






    19


     


    

 


“Letter
of Credit Disbursement” means a payment made by Issuing Bank pursuant to a Letter of Credit.


 


“Letter
of Credit Exposure” means, as of any date of determination with respect to any Lender, such Lender’s participation in
the Letter of Credit Usage pursuant to Section 2.11(e) on such date.


 


“Letter
of Credit Fee” has the meaning specified therefor in Section 2.6(b) of this Agreement.


 


“Letter
of Credit Indemnified Costs” has the meaning specified therefor in Section 2.11(f) of this Agreement.


 


“Letter
of Credit Related Person” has the meaning specified therefor in Section 2.11(f) of this Agreement.


 


“Letter
of Credit Sublimit” means $20,000,000.


 


“Letter
of Credit Usage” means, as of any date of determination, the sum of (a) the aggregate undrawn amount of all outstanding Letters
of Credit, plus (b) the aggregate amount of outstanding reimbursement obligations with respect to Letters of Credit which remain
unreimbursed or which have not been paid through a Revolving Loan.


 


“Lien”
means any pledge, hypothecation, assignment, charge, deposit arrangement, encumbrance, easement, lien (statutory or other), security
interest, or other security arrangement and any other preference, priority, or preferential arrangement of any kind or nature whatsoever,
including any conditional sale contract or other title retention agreement, the interest of a lessor under a Capital Lease and any synthetic
or other financing lease having substantially the same economic effect as any of the foregoing.


 


“Line
Cap” means, as of any date of determination, the lesser of (a) the Maximum Revolver Amount, and (b) the Borrowing Base as of
such date of determination.


 


“Liquidity”
means, as of any date of determination, any amount equal to the Excess Availability plus all Qualified Cash.


 


“Loan”
means any Revolving Loan, Swing Loan, or Extraordinary Advance made (or to be made) hereunder.


 


“Loan
Account” has the meaning specified therefor in Section 2.9 of this Agreement.


 


“Loan
Documents” means this Agreement, the Control Agreements, the Copyright Security Agreement, any Borrowing Base Certificate,
the Fee Letter, the Intercreditor Agreement, the Guaranty and Security Agreement, the Parental Assistance Agreement, any Issuer Documents,
the Letters of Credit, the Loan Manager Side Letter, the Patent Security Agreement, the Trademark Security Agreement, any note or notes
executed by Borrowers in connection with this Agreement and payable to any member of the Lender Group, and any other instrument or agreement
entered into, now or in the future, by any Loan Party or any of its Subsidiaries and any member of the Lender Group in connection with
this Agreement (but specifically excluding Bank Product Agreements).


 


“Loan
Manager Side Letter” means that certain letter agreement between the Borrowers and Wells Fargo regarding the terms under which
Wells Fargo will provide services to the Borrowers in respect of Wells Fargo’s proprietary automated loan management program.


 


“Loan
Party” means any Borrower or any Guarantor.


 


“Management
Fees” means payments for services rendered pursuant to the Affiliate Company Agreement.


 




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“Margin
Stock” as defined in Regulation U of the Board of Governors as in effect from time to time.


 


“Marketing
Agreements” shall mean the Marketing Agreements set forth on Schedule 4.29 attached hereto, as such schedule may be updated
from time to time by Borrowers with prior notice to Agent, provided, that, (i) any additional Marketing Agreements
listed in updates to such Schedule 4.29 shall be substantially similar to the other Marketing Agreements listed on such Schedule 4.29
and (ii) such updates shall be in form and substance satisfactory to Agent.


 


“Material
Adverse Effect” means any condition, change, effect or circumstance that, individually or when taken together with all such
conditions, changes, effects or circumstances, has or would reasonably be expected to have an adverse effect on the financial condition,
assets, properties, business, operations or results of operations of any of the Borrowers which is material to such Borrower, excluding
(a) any changes or effects that are not unique to such Borrower and do not adversely affect such Borrower disproportionately compared
to its competitors, directly resulting from general changes in economic, financial or capital market, regulatory, political or national
security conditions (including acts of war or terrorism), (b) any changes in conditions generally applicable to the industries in which
such Borrower is involved, (c) any changes that result from the announcement or the consummation of the transactions contemplated hereby,
(d) any “going concern” or similar qualification to the opinion of Borrowers’ or Parent’s independent certified
public accountants with respect to the financial statements of Borrowers or Parent, unless such “going concern” or similar
qualification to any such opinion relates solely to Borrowers (independent of Parent), and (e) any changes or effects that have been
disclosed to Agent and Lenders as of the date hereof that has or could reasonably be expected to have a material adverse effect on the
financial condition, assets, properties, business, operations or results of operations of any of the Borrowers (the foregoing exclusion
in this clause (e) shall not apply to any changes or effects that have not been disclosed to Agent and Lenders as of the date hereof
or any changes or affects arising after the date hereof).


 


“Material
Contract” shall mean (a) any contract or agreement (other than the Financing Agreements and any ethanol purchase and sale contracts
or agreements), written or oral, of any Borrower involving monetary liability of or to any Person in an amount in excess of $750,000,
(b) any ethanol purchase and sale contract or agreement with a stated term in excess of six (6) months and (c) any contract or other
agreement (other than the Financing Agreements), whether written or oral, to which any Borrower is a party as to which the breach, nonperformance,
cancellation or failure to renew by any party thereto would have a Material Adverse Effect.


 


“Maturity
Date” means November [__], 2027.


 


“Maximum
Revolver Amount” means $100,000,000, subject to increase in accordance with Section 2.14 of this Agreement, decreased by the
amount of reductions in the Revolver Commitments made in accordance with Section 2.4(c) of this Agreement.


 


“Moody’s”
has the meaning specified therefor in the definition of Cash Equivalents.


 


“Multiemployer
Plan” means any multiemployer plan within the meaning of Section 3(37) or 4001(a)(3) of ERISA with respect to which any Loan
Party or ERISA Affiliate has an obligation to contribute for the benefit of its respective employees or has any liability, contingent
or otherwise or could be assessed Withdrawal Liability assuming a complete withdrawal from any such multiemployer plan.


 


“Net
Recovery Percentage” means, as of any date of determination, the percentage of the book value of Borrowers’ Inventory
that is reasonably estimated to be recoverable in an orderly liquidation of such Inventory net of all associated costs and expenses of
such liquidation, such percentage to be determined as to each category of Inventory and to be as specified in the most recent Acceptable
Appraisal of Inventory.


 


“Non-Consenting
Lender” has the meaning specified therefor in Section 14.2(a) of this Agreement.


 


“Non-Defaulting
Lender” means each Lender other than a Defaulting Lender.


 






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“Notification
Event” means (a) the occurrence of a “reportable event” described in Section 4043 of ERISA for which the 30-day
notice requirement has not been waived by applicable regulations issued by the PBGC, (b) the withdrawal of any Loan Party or ERISA Affiliate
from a Pension Plan during a plan year in which it was a “substantial employer” as defined in Section 4001(a)(2) of ERISA,
(c) the termination of a Pension Plan, the filing of a notice of intent to terminate a Pension Plan or the treatment of a Pension Plan
amendment as a termination, under Section 4041 of ERISA, by any Loan Party or any of its Subsidiaries if the plan assets are not sufficient
to pay all plan liabilities, (d) the institution of proceedings to terminate, or the appointment of a trustee with respect to, any Pension
Plan by the PBGC or any Pension Plan or Multiemployer Plan administrator, (e) any Loan Party or any of its Subsidiaries become aware
of any other event or condition that would constitute grounds under Section 4042(a) of ERISA for the termination of, or the appointment
of a trustee to administer, any Pension Plan, with respect to which the PBGC is reasonably likely to take such action in the reasonably-foreseeable
future, (f) the imposition of a Lien pursuant to the IRC or ERISA in connection with any Pension Plan or any Loan Party or any of its
Subsidiaries become aware of the existence of any facts or circumstances that is reasonably expected to result in the imposition of a
Lien, (g) the partial or complete withdrawal of any Loan Party or any ERISA Affiliate from a Multiemployer Plan, (h) any Loan Party or
any of its Subsidiaries receiving written notice of any event or condition that results in the reorganization or insolvency of a Multiemployer
Plan under Sections of ERISA, (i) any Loan Party or any of its Subsidiaries receiving written notice of any event or condition that results
in the termination of a Multiemployer Plan under Section 4041A of ERISA or the institution by the PBGC of proceedings to terminate or
to appoint a trustee to administer a Multiemployer Plan under ERISA, (j) any Pension Plan being in “at risk status” within
the meaning of IRC Section 430(i), (k) any Multiemployer Plan being in “endangered status” or “critical status”
within the meaning of IRC Section 432(b) or the determination that any Multiemployer Plan is or is expected to be insolvent or in reorganization
within the meaning of Title IV of ERISA, (l) with respect to any Pension Plan, any Loan Party or ERISA Affiliate incurring a substantial
cessation of operations within the meaning of ERISA Section 4062(e), (m) the failure of any Pension Plan or Multiemployer Plan to meet
the minimum funding standards within the meaning of the IRC or ERISA (including Section 412 of the IRC or Section 302 of ERISA), whether
or not waived, (n) the filing of an application for a waiver of the minimum funding standards within the meaning of the IRC or ERISA
(including Section 412 of the IRC or Section 302 of ERISA) with respect to any Pension Plan or Multiemployer Plan, (o) the failure by
any Loan Party or any of its Subsidiaries to make by its due date a required payment or contribution with respect to any Pension Plan
or Multiemployer Plan, (p) any event that results in or could reasonably be expected to result in a liability by a Loan Party pursuant
to Title I of ERISA or the excise tax provisions of the IRC relating to Employee Benefit Plans or any event that results in or could
reasonably be expected to result in a liability to any Loan Party or ERISA Affiliate pursuant to Title IV of ERISA or Section 401(a)(29)
of the IRC, or (q) any of the foregoing is reasonably likely to occur in the following 30 days.


 


“Obligations”
means (a) all loans (including the Revolving Loans (inclusive of Extraordinary Advances and Swing Loans)), debts, principal, interest
(including any interest that accrues after the commencement of an Insolvency Proceeding, regardless of whether allowed or allowable in
whole or in part as a claim in any such Insolvency Proceeding), reimbursement or indemnification obligations with respect to Letters
of Credit (irrespective of whether contingent), premiums, liabilities (including all amounts charged to the Loan Account pursuant to
this Agreement), obligations (including indemnification obligations), fees (including the fees provided for in the Fee Letter), Lender
Group Expenses (including any fees or expenses that accrue after the commencement of an Insolvency Proceeding, regardless of whether
allowed or allowable in whole or in part as a claim in any such Insolvency Proceeding), guaranties, and all covenants and duties of any
other kind and description owing by any Loan Party (including Parent) arising out of, under, pursuant to, in connection with, or evidenced
by this Agreement or any of the other Loan Documents and irrespective of whether for the payment of money, whether direct or indirect,
absolute or contingent, due or to become due, now existing or hereafter arising, and including all interest not paid when due and all
other expenses or other amounts that any Loan Party (including Parent) is required to pay or reimburse by the Loan Documents or by law
or otherwise in connection with the Loan Documents, and (b) all Bank Product Obligations, if any; provided that, anything to the
contrary contained in the foregoing notwithstanding, the Obligations shall exclude any Excluded Swap Obligation. Without limiting the
generality of the foregoing, the Obligations of Borrowers under the Loan Documents include the obligation to pay (i) the principal of
the Revolving Loans, (ii) interest accrued on the Revolving Loans, (iii) the amount necessary to reimburse Issuing Bank for amounts paid
or payable pursuant to Letters of Credit, (iv) Letter of Credit commissions, fees (including fronting fees) and charges, (v) Lender Group
Expenses, (vi) fees payable under this Agreement or any of the other Loan Documents, and (vii) indemnities and other amounts payable
by any Loan Party (including Parent) under any Loan Document. Any reference in this Agreement or in the Loan Documents to the Obligations
shall include all or any portion thereof and any extensions, modifications, renewals, or alterations thereof, both prior and subsequent
to any Insolvency Proceeding.


 


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


 






    22


     


    

 


“Originating
Lender” has the meaning specified therefor in Section 13.1(e) of this Agreement.


 


“Other
Taxes” means all present or future stamp, court, excise, value added, or documentary, intangible, recording, filing or similar
Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt
or perfection of a security interest under, or otherwise with respect to, any Loan Document.


 


“Overadvance”
means, as of any date of determination, that the Revolver Usage is greater than any of the limitations set forth in Section 2.1
or Section 2.11 of this Agreement.


 


“Pacific
Ethanol Acquired Inventory” means Inventory purchased or acquired by Borrowers from an Affiliate of Borrowers.


 


“Pacific
Ethanol Affiliates” mean, collectively, (a) Alto Pekin, Inc., (b) Alto Magic Valley, LLC, (c) Alto ICP, LLC, (d) Alto Columbia
LLC, and (e) such other Affiliates of Borrowers which may from time to time enter into Marketing Agreements with Borrowers, so long as
Borrowers notify Agent of such additional Affiliate and deliver to Agent executed Marketing Agreements with such Affiliate, in each instance,
together with its successors and assigns.


 


“Parent”
means Alto Ingredients, Inc., a Delaware corporation.


 


“Parental
Assistance Agreement” means that certain Third Amended and Restated Parent Assistance Agreement (as amended and/or supplemented)
among Borrowers, Parent and Agent.


 


“Participant”
has the meaning specified therefor in Section 13.1(e) of this Agreement.


 


“Participant
Register” has the meaning set forth in Section 13.1(i) of this Agreement.


 


“Patent
Security Agreement” has the meaning specified therefor in the Guaranty and Security Agreement.


 


“Patriot
Act” has the meaning specified therefor in Section 4.13 of this Agreement.


 


“PBGC”
means the Pension Benefit Guaranty Corporation or any successor agency.


 


“Pension
Plan” means any Employee Benefit Plan, other than a Multiemployer Plan, which is subject to the provisions of Title IV or Section
302 of ERISA or Sections 412 or 430 of the Code sponsored, maintained, or contributed to by any Loan Party or ERISA Affiliate for the
benefit of its respective employees or to which any Loan Party or ERISA Affiliate has any liability, contingent or otherwise.


 


“Perfection
Certificate” means a certificate in the form of Exhibit P-1 to this Agreement.


 


“Permitted
Discretion” means a determination made in the exercise of reasonable (from the perspective of a secured asset-based lender)
business judgment.


 


“Permitted
Dispositions” means:


 


(a)
sales, abandonment, or other dispositions of Equipment (including Equipment that is substantially worn, damaged, or obsolete or no longer
used or useful in the ordinary course of business) so long as such sales or other dispositions do not involve Equipment having an aggregate
fair market value in excess of $500,000 for all such Equipment disposed of in any fiscal year of Borrowers or as Agent may otherwise
agree and leases or subleases of Real Property not useful in the conduct of the business of the Borrowers and their Subsidiaries,


 


(b)
sales of Inventory to buyers in the ordinary course of business,


 


(c)
the use or transfer of money or Cash Equivalents in a manner that is not prohibited by the terms of this Agreement or the other Loan
Documents,


 






    23


     


    

 


(d)
the licensing, on a non-exclusive basis, of patents, trademarks, copyrights, and other intellectual property rights in the ordinary course
of business,


 


(e)
the granting of Permitted Liens,


 


(f)
the sale or discount, in each case without recourse, of accounts receivable (other than Eligible Accounts) arising in the ordinary course
of business, but only in connection with the compromise or collection thereof,


 


(g)
any involuntary loss, damage or destruction of property,


 


(h)
any involuntary condemnation, seizure or taking, by exercise of the power of eminent domain or otherwise, or confiscation or requisition
of use of property,


 


(i)
 the leasing or subleasing of assets of any Borrower or its Subsidiaries in the ordinary course of business,


 


(j)
(i) the lapse of registered patents, trademarks, copyrights and other intellectual property of any Borrower or any of its Subsidiaries
to the extent not economically desirable in the conduct of its business, or (ii) the abandonment of patents, trademarks, copyrights,
or other intellectual property rights in the ordinary course of business so long as (in each case under clauses (i) and (ii)), (A) with
respect to copyrights, such copyrights are not material revenue generating copyrights, and (B) such lapse is not materially adverse to
the interests of the Lender Group,


 


(k)
the making of Restricted Payments that are expressly permitted to be made pursuant to this Agreement,


 


(l)
the making of Permitted Investments,


 


(m) 
so long as no Event of Default has occurred and is continuing or would immediately result therefrom, transfers of assets (i) from any
Borrower or any of its Subsidiaries (other than any Borrower) to a Borrower, and (ii) from any Subsidiary of any Loan Party that is not
a Loan Party to any other Subsidiary of any Loan Party,


 


(n)
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 are promptly applied to the purchase price of such replacement
property; provided, that to the extent the property being transferred constitutes Collateral, such replacement property shall
constitute Collateral, and


 


(o)
sales or dispositions of fixed assets (including intangible property related to such fixed assets) not otherwise permitted in clauses
(a) through (o) above so long as made at fair market value and the aggregate fair market value of all assets disposed of in fiscal year
(including the proposed disposition) would not exceed $1,000,000.00,


 


(p)
subject to the terms of the Intercreditor Agreement, the disposition of Equity Interests of any Loan Party so long as (x) such disposition
does not result in a Change of Control and (y) the proceeds of such disposition are used to prepay the Term Loan Obligations to the extent
permitted pursuant to Section 6.6(a)(i) herein.


 


“Permitted
Indebtedness” means:


 


(a)
Indebtedness in respect of the Obligations,


 


(b)
Indebtedness as of the Closing Date as identified in Borrowers’ financial statements or fiscal quarter ending June 30, 2017 which
have been previously delivered to Agent plus such additional Indebtedness as identified on Schedule 4.14,


 


(c)
Permitted Purchase Money Indebtedness and any Refinancing Indebtedness in respect of such Indebtedness purchase money Indebtedness (including
Capital Leases) arising after the date hereof to the extent secured by purchase money security interests in Equipment (including Capital
Leases) and purchase money mortgages on Real Property, so long as such security interests and mortgages do not apply to any property
of such Borrower or any Subsidiary other than the Equipment or Real Property so acquired, and the Indebtedness secured thereby does not
exceed the cost of the Equipment or Real Property so acquired, as the case may be;


 




    24


     


    

 


(d)
 Indebtedness arising in connection with the endorsement of instruments or other payment items for deposit,


 


(e)
Indebtedness consisting of (i) unsecured guarantees incurred in the ordinary course of business with respect to surety and appeal bonds,
performance bonds, bid bonds, appeal bonds, completion guarantee and similar obligations; and (ii) unsecured guarantees arising with
respect to customary indemnification obligations to purchasers in connection with Permitted Dispositions,


 


(f)
the Term Loan Debt in an aggregate principal amount not to exceed $125,000,000,


 


(g)
[Reserved],


 


(h)
Indebtedness incurred in the ordinary course of business under performance, surety, statutory, or appeal bonds,


 


(i)
Indebtedness owed to any Person providing property, casualty, liability, or other insurance to any Borrower or any of its Subsidiaries,
so long as the amount of such Indebtedness is not in excess of the amount of the unpaid cost of, and shall be incurred only to defer
the cost of, such insurance for the year in which such Indebtedness is incurred and such Indebtedness is outstanding only during such
year,


 


(j)
the incurrence by any Borrower or its Subsidiaries of Indebtedness under Hedge Agreements that is incurred for the bona fide purpose
of hedging the interest rate, commodity, or foreign currency risks associated with such Borrower’s or such Subsidiary’s operations
and not for speculative purposes,


 


(k)
Indebtedness incurred in the ordinary course of business in respect of credit cards, credit card processing services, debit cards, stored
value cards, commercial cards (including so-called “purchase cards”, “procurement cards” or “p-cards”),
or Cash Management Services,


 


(l)
unsecured Indebtedness of any Borrower owing to employees, former employees, former officers, directors, or former directors (or any
spouses, ex-spouses, or estates of any of the foregoing) incurred in connection with the repurchase or redemption by such Borrower of
the Equity Interests of such Borrower that has been issued to such Persons, so long as (i) no Default or Event of Default has occurred
and is continuing or would result from the incurrence of such Indebtedness, (ii) the aggregate amount of all such Indebtedness outstanding
at any one time does not exceed $50,000 in any calendar year, and (iii) such Indebtedness is subordinated in right of payment to the
Obligations on terms and conditions reasonably acceptable to Agent,


 


(m)
 [Reserved],


 


(n)
Indebtedness composing Permitted Investments,


 


(o)
unsecured Indebtedness incurred in respect of netting services, overdraft protection, and other like services, in each case, incurred
in the ordinary course of business,


 


(p)
[Reserved],


 


(q)
[Reserved],


 


(r)
 accrual of interest, accretion or amortization of original issue discount, or the payment of interest in kind, in each case, on Indebtedness
that otherwise constitutes Permitted Indebtedness,


 


(s)
Subordinated Indebtedness, the aggregate outstanding amount of which does not exceed $2,500,000, and


 


(t)
In addition to and without limitation of any the categories of Permitted Indebtedness set forth above, any other unsecured Indebtedness
incurred by any Borrower or any of its Subsidiaries in an aggregate outstanding amount not to exceed $2,500,000 at any one time.


 






    25


     


    

 


“Permitted
Investments” means:


 


(a)
Investments in cash and Cash Equivalents,


 


(b)
Investments in negotiable instruments deposited or to be deposited for collection in the ordinary course of business,


 


(c)
advances made in connection with purchases of goods or services in the ordinary course of business,


 


(d)
Investments received in settlement of amounts due to any Borrower or any of its Subsidiaries effected in the ordinary course of business
or owing to any Borrower or any of its Subsidiaries as a result of Insolvency Proceedings involving an account debtor or upon the foreclosure
or enforcement of any Lien in favor of a Borrower or its Subsidiaries,


 


(e)
Investments owned by any Borrower or any of its Subsidiaries on the Closing Date and set forth on Schedule P-1 to this Agreement, provided,
that, except for Kinergy with respect to Alto Nutrients, no Borrower shall have any further obligations or liabilities to make any capital
contributions or other additional investments or other payments to or in or for the benefit of any of such Subsidiaries,


 


(f)
guarantees permitted under the definition of Permitted Indebtedness,


 


(g)
[Reserved],


 


(h)
Equity Interests or other securities acquired in connection with the satisfaction or enforcement of Indebtedness or claims due or owing
to a Loan Party or its Subsidiaries (in bankruptcy of customers or suppliers or otherwise outside the ordinary course of business) or
as security for any such Indebtedness or claims,


 


(i)
deposits of cash made in the ordinary course of business to secure performance of operating leases,


 


(j)
loans and advances to employees and officers of a Borrower or any of its Subsidiaries in the ordinary course of business for any other
business purpose and in an aggregate amount not to exceed $250,000 at any one time for: (i) reasonably and necessary work-related travel
or other ordinary business expenses to be incurred by such employee in connection with their work for such Borrower and (ii) reasonable
and necessary relocation expenses of such employees (including home mortgage financing for relocated employees),


 


(k)
[Reserved],


 


(l)
 Investments in the form of capital contributions and the acquisition of Equity Interests made by any Borrower or any of its Subsidiaries
in any Borrower or Subsidiary thereof,


 


(m) 
Investments resulting from entering into (i) Bank Product Agreements, or (ii) agreements relative to obligations permitted under
clause (j) of the definition of Permitted Indebtedness; and


 


(n)
the Fuel Logistics Acquisition, provided, that, (a) the amount of consideration and other transaction expenses
paid by Borrowers with respect to the Fuel Logistics Acquisition does not exceed $7,500,000 in the aggregate, (b) no Event of Default
exists and is continuing or would arise after giving effect to the Fuel Logistics Acquisition, (c) as of the date of the consummation
of the Fuel Logistics Acquisition, Excess Availability for the thirty (30) consecutive day period immediately prior to the date of any
such distribution, calculated on a pro forma basis as if such dividend or distribution had occurred on each day during such thirty (30)
day period, shall not be less than 10% of the Maximum Revolver Amount, and (d) as of the date of the consummation of the Fuel Logistics
Acquisition and after giving effect to the Fuel Logistics Acquisition, Excess Availability shall be not less than 10% of the Maximum
Revolver Amount.


 


“Permitted
Liens” means:


 


(a)
Liens granted to, or for the benefit of, Agent to secure the Obligations,


 


(b)
Liens for unpaid taxes, assessments, or other governmental charges or levies that either (i) are not yet delinquent, or (ii) do not have
priority over Agent’s Liens and the underlying taxes, assessments, or charges or levies are the subject of Permitted Protests,


 






    26


     


    

 


(c)
judgment Liens arising solely as a result of the existence of judgments, orders, or awards that do not constitute an Event of Default
under Section 8.3 of this Agreement,


 


(d)
Liens set forth on Schedule P-2 to this Agreement; provided, that to qualify as a Permitted Lien, any such Lien described on Schedule
P-2 to this Agreement shall only secure the Indebtedness that it secures on the Closing Date and any Refinancing Indebtedness in
respect thereof,


 


(e)
the interests of lessors under operating leases and non-exclusive licensors under license agreements,


 


(f)
purchase money Liens on Real Property, and purchase money liens on other fixed assets or the interests of lessors under Capital Leases,
to the extent that such Liens or interests secure Indebtedness that is Permitted Purchase Money Indebtedness and so long as (i) such
Lien attaches only to the fixed asset purchased or acquired and the proceeds thereof, and (ii) such Lien only secures the Indebtedness
that was incurred to acquire the Real Property or other fixed asset purchased or acquired or any Refinancing Indebtedness in respect
thereof,


 


(g)
Liens arising by operation of law in favor of warehousemen, landlords, carriers, mechanics, materialmen, laborers, or suppliers, incurred
in the ordinary course of business and not in connection with the borrowing of money, and which Liens either (i) are for sums not yet
delinquent, or (ii) are the subject of Permitted Protests,


 


(h)
Liens on amounts deposited to secure any Borrower’s and its Subsidiaries’ obligations in connection with worker’s compensation
or other unemployment insurance,


 


(i)
 Liens on amounts deposited to secure any Borrower’s and its Subsidiaries’ obligations in connection with the making or entering
into of bids, tenders, leases, statutory obligations and similar obligations in the ordinary course of business, consistent with Borrowers’
current business practices, and not in connection with the borrowing of money,


 


(j)
Liens on amounts deposited to secure any Borrower’s and its Subsidiaries’ reimbursement obligations with respect to surety
or appeal bonds obtained in the ordinary course of business,


 


(k)
with respect to any Real Property, easements, rights of way, and zoning restrictions that do not materially interfere with or impair
the use or operation thereof,


 


(l)
non-exclusive licenses of patents, trademarks, copyrights, and other intellectual property rights in the ordinary course of business,


 


(m) 
Liens that are replacements of Permitted Liens to the extent that the original Indebtedness is the subject of permitted Refinancing Indebtedness
and so long as the replacement Liens only encumber those assets that secured the original Indebtedness,


 


(n)
rights of setoff or bankers’ liens upon deposits of funds in favor of banks or other depository institutions, solely to the extent
incurred in connection with the maintenance of such Deposit Accounts in the ordinary course of business,


 


(o)
Liens granted in the ordinary course of business on the unearned portion of insurance premiums securing the financing of insurance premiums
to the extent the financing is permitted under the definition of Permitted Indebtedness,


 


(p)
Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the
importation of goods,


 


(q)
Liens securing the Term Loan Debt permitted pursuant to clause (f) of the definition of Permitted Indebtedness; provided, that,
such Liens are subject to the Intercreditor Agreement, and


 


(r)
In addition to and without limitation of any the categories of Permitted Liens set forth above, other Liens which do not secure Indebtedness
for borrowed money or letters of credit and as to which the aggregate amount of the obligations secured thereby does not exceed $2,500,000.


 






    27


     


    

 


“Permitted
Protest” means the right of any Loan Party or any of its Subsidiaries to protest any Lien (other than any Lien that secures
the Obligations), Tax (other than payroll taxes or taxes that are the subject of a United States federal tax lien), any rental payment
or levy; provided, that either (1) such protest is being defended and otherwise handled by Borrowers’ insurer at insurer’s
sole cost and risk (subject to any applicable deductibles and standard reservation of rights provisions) or (2) (a) a reserve with respect
to such obligation is established on such Loan Party’s or its Subsidiaries’ books and records in such amount as is required
under GAAP, if any, (b) any such protest is instituted promptly and prosecuted diligently by such Loan Party or its Subsidiary, as applicable,
in good faith, and (c) Agent is satisfied that, while any such protest is pending, there will be no impairment of the enforceability,
validity, or priority of any of Agent’s Liens.


 


“Permitted
Purchase Money Indebtedness” means, as of any date of determination, Indebtedness (other than the Obligations, but including
Capitalized Lease Obligations (other than any obligations in respect of operating leases beginning after December 15, 2018, that would
not have been


 


classified
as Capitalized Lease Obligations prior to the new Financial Accounting Standards Board standard issued in 2016), incurred after the Closing
Date and at the time of, or within 20 days after, the acquisition of any fixed assets or Real Property for the purpose of financing all
or any part of the acquisition cost thereof, in an aggregate principal amount outstanding at any one time not in excess of $4,000,000.


 


“Person”
means natural persons, corporations, limited liability companies, limited partnerships, general partnerships, limited liability partnerships,
joint ventures, trusts, land trusts, business trusts, or other organizations, irrespective of whether they are legal entities, and governments
and agencies and political subdivisions thereof.


 


“Platform”
has the meaning specified therefor in Section 17.9(c) of this Agreement.


 


“Pro
Rata Share” means, as of any date of determination:


 


(a)
with respect to a Lender’s obligation to make all or a portion of the Revolving Loans, with respect to such Lender’s right
to receive payments of interest, fees, and principal with respect to the Revolving Loans, and with respect to all other computations
and other matters related to the Revolver Commitments or the Revolving Loans, the percentage obtained by dividing (i) the Revolving Loan
Exposure of such Lender, by (ii) the aggregate Revolving Loan Exposure of all Lenders,


 


(b)
with respect to a Lender’s obligation to participate in the Letters of Credit, with respect to such Lender’s obligation to
reimburse Issuing Bank, and with respect to such Lender’s right to receive payments of Letter of Credit Fees, and with respect
to all other computations and other matters related to the Letters of Credit, the percentage obtained by dividing (i) the Revolving Loan
Exposure of such Lender, by (ii) the aggregate Revolving Loan Exposure of all Lenders; provided, that if all of the Revolving
Loans have been repaid in full and all Revolver Commitments have been terminated, but Letters of Credit remain outstanding, Pro Rata
Share under this clause shall be the percentage obtained by dividing (A) the Letter of Credit Exposure of such Lender, by (B) the Letter
of Credit Exposure of all Lenders, and


 


(c)
with respect to all other matters and for all other matters as to a particular Lender (including the indemnification obligations arising
under Section 15.7 of this Agreement), the percentage obtained by dividing (i) the Revolving Loan Exposure of such Lender, by
(ii) the aggregate Revolving Loan Exposure of all Lenders, in any such case as the applicable percentage may be adjusted by assignments
permitted pursuant to Section 13.1; provided, that if all of the Loans have been repaid in full and all Commitments have
been terminated, Pro Rata Share under this clause shall be the percentage obtained by dividing (A) the Letter of Credit Exposure of such
Lender, by (B) the Letter of Credit Exposure of all Lenders.


 


“Protective
Advances” has the meaning specified therefor in Section 2.3(d)(i) of this Agreement.


 


“Public
Lender” has the meaning specified therefor in Section 17.9(c) of this Agreement.


 


“Qualified
Cash” means, as of any date of determination, the amount of unrestricted cash and Cash Equivalents of the Loan Parties and
their Subsidiaries that is in Deposit Accounts or in Securities Accounts, or any combination thereof, and which such Deposit Account
or Securities Account is the subject of a Control Agreement and is maintained by a branch office of the bank or securities intermediary
located within the United States.


 




    28


     


    

 


“Qualified
Equity Interests” means and refers to any Equity Interests issued by Borrowers (and not by one or more of their Subsidiaries
(other than by Kinergy with respect to Alto Nutrients) that is not a Disqualified Equity Interest.


 


“QFC”
has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C.
§ 5390(c)(8)(D).


 


“QFC
Credit Support” has the meaning specified therefor in Section 17.16 of this Agreement.


 


“Real
Property” means any estates or interests in real property now owned or hereafter acquired by any Borrower or one of its Subsidiaries
and the improvements thereto.


 


“Record”
means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable
form.


 


“Reference
Period” has the meaning set forth in the definition of EBITDA.


 


“Refinancing
Indebtedness” means refinancings, renewals, or extensions of Indebtedness so long as:


 


(a)
such refinancings, renewals, or extensions do not result in an increase in the principal amount of the Indebtedness so refinanced, renewed,
or extended, other than by the amount of premiums paid thereon and the fees and expenses incurred in connection therewith and by the
amount of unfunded commitments with respect thereto,


 


(b)
such refinancings, renewals, or extensions do not result in a shortening of the final stated maturity or the average weighted maturity
(measured as of the refinancing, renewal, or extension) of the Indebtedness so refinanced, renewed, or extended, nor are they on terms
or conditions that, taken as a whole, are or could reasonably be expected to be materially adverse to the interests of the Lenders,


 


(c)
if the Indebtedness that is refinanced, renewed, or extended was subordinated in right of payment to the Obligations, then the terms
and conditions of the refinancing, renewal, or extension must include subordination terms and conditions that are at least as favorable
to the Lender Group as those that were applicable to the refinanced, renewed, or extended Indebtedness,


 


(d)
the Indebtedness that is refinanced, renewed, or extended is not recourse to any Person that is liable on account of the Obligations
other than those Persons which were obligated with respect to the Indebtedness that was refinanced, renewed, or extended,


 


(e)
if the Indebtedness that is refinanced, renewed or extended was unsecured, such refinancing, renewal or extension shall be unsecured,
and


 


(f)
if the Indebtedness that is refinanced, renewed, or extended was secured (i) such refinancing, renewal, or extension shall be secured
by substantially the same or less collateral as secured such refinanced, renewed or extended Indebtedness on terms no less favorable
to Agent or the Lender Group and (ii) the Liens securing such refinancing, renewal or extension shall not have a priority more senior
than the Liens securing such Indebtedness that is refinanced, renewed or extended.


 


“Register”
has the meaning set forth in Section 13.1(h) of this Agreement.


 


“Related
Fund” means any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans
and similar extensions of credit in the ordinary course and that is administered, advised or managed by (a) a Lender, (b) an Affiliate
of a Lender, or (c) an entity or an Affiliate of an entity that administers, advises or manages a Lender.


 






    29


     


    

 


“Remedial
Action” means all actions taken to (a) clean up, remove, remediate, contain, treat, monitor, assess, evaluate, or in any way
address Hazardous Materials in the indoor or outdoor environment, (b) prevent or minimize a release or threatened release of Hazardous
Materials so they do not migrate or endanger or threaten to endanger public health or welfare or the indoor or outdoor environment, (c)
restore or reclaim natural resources or the environment, (d) perform any pre-remedial studies, investigations, or post-remedial operation
and maintenance activities, or (e) conduct any other actions with respect to Hazardous Materials required by Environmental Laws.


 


“Replacement
Lender” has the meaning specified therefor in Section 2.13(b) of this Agreement.


 


“Report”
has the meaning specified therefor in Section 15.16 of this Agreement.


 


“Required
Lenders” means, at any time, Lenders having or holding more than 50% of the sum of the aggregate Revolving Loan Exposure of
all Lenders; provided, that (i) the Revolving Loan Exposure of any Defaulting Lender shall be disregarded in the determination
of the Required Lenders, and (ii) at any time there are two or more Lenders (who are not Affiliates of one another or Defaulting Lenders),
“Required Lenders” must include at least two Lenders (who are not Affiliates of one another).


 


“Reserves”
shall mean as of any date of determination, such amounts as Agent may from time to time establish and revise in good faith and in
the exercise of its reasonable credit judgment reducing the amount of Revolving Loans and Letters of Credit that would otherwise be
available to Borrowers under the lending formula(s) provided for herein: (a) to reflect events, conditions, contingencies or risks
which, as determined by Agent in good faith and in the exercise of its reasonable credit judgment, adversely affect, or would have a
reasonable likelihood of adversely affecting, either the Collateral or any other property which is security for the Obligations or
its value or the assets, business or prospects of any Borrower or any Loan Party or the security interests and other rights of Agent
or any Lender in the Collateral (including the enforceability, perfection and priority thereof) or (b) to reflect Agent’s good
faith belief that any collateral report or financial information furnished by or on behalf of any Loan Party (including Parent) to
Agent is or may have been incomplete, inaccurate or misleading in any material respect or (c) to reflect outstanding Letter of
Credit Obligations as provided in Section 2.10 hereof or (d) in respect of any state of facts which Agent determines in good faith
and in the exercise of its reasonable credit judgment constitutes a Default or an Event of Default. Without limiting the generality
of the foregoing, Reserves may, at Agent’s option, in good faith and in the exercise of its reasonable credit judgment, be
established to reflect: (i) dilution with respect to the Accounts (based on the ratio of the aggregate amount of non-cash reductions
in Accounts for any period to the aggregate dollar amount of the sales of Borrowers for such period) as calculated by Agent for any
period is or is reasonably anticipated to be greater than five (5%) percent; (ii) returns, discounts, claims, credits and allowances
of any nature that are not paid pursuant to the reduction of Accounts; (iii) sales, excise or similar taxes included in the amount
of any Accounts reported to Agent; (iv) a change in the turnover, age or mix of the categories of Inventory that adversely affects
the aggregate value of all Inventory; (v) amounts due or to become due to owners and lessors of premises where any Collateral is
located, other than for those locations where Agent has received a Collateral Access Agreement that Agent has accepted in writing;
(vi) amounts due or to become due to owners and licensors of trademarks and other Intellectual Property used by Borrowers and (vii)
obligations, liabilities or indebtedness (contingent or otherwise) of any Borrower to Agent or any Bank Product Provider arising
under or in connection with any Bank Products or as such Affiliate or Person may otherwise require in connection therewith to the
extent that such obligations, liabilities or indebtedness constitute Obligations as such term is defined herein or otherwise receive
the benefit of the security interest of Agent in any Collateral. The amount of any Reserve established by Agent shall have a
reasonable relationship to the event, condition or other matter which is the basis for such reserve as determined by Agent in good
faith and in the exercise of its reasonable credit judgment and to the extent that such Reserve is in respect of amounts that may be
payable to third parties Agent may, at its option, deduct such Reserve from the Maximum Revolver Amount, at any time that such limit
is less than the amount of the Borrowing Base.


 


“Restricted
Payment” means (a) any declaration or payment of any dividend or the making of any other payment or distribution, directly
or indirectly, on account of Equity Interests issued by a Borrower (including any payment in connection with any merger or consolidation
involving Borrowers) or to the direct or indirect holders of Equity Interests issued by Borrowers in their capacity as such (other than
dividends or distributions payable in Qualified Equity Interests issued by a Borrower, or (b) any purchase, redemption, making of any
sinking fund or similar payment, or other acquisition or retirement for value (including in connection with any merger or consolidation
involving a Borrower) any Equity Interests issued by Borrowers, (c) any making of any payment to retire, or to obtain the surrender of,
any outstanding warrants, options, or other rights to acquire Equity Interests of Borrowers now or hereafter outstanding, or (d) reimbursement
payments by a Borrower to Parent on account of any margin call due in connection with any hedging position created by Parent for or on
behalf of such Borrower pursuant to the Affiliate Company Agreement.


 






    30


     


    

 


“Revolver
Commitment” means, with respect to each Revolving Lender, its Revolver Commitment, and, with respect to all Revolving Lenders,
their Revolver Commitments, in each case as such Dollar amounts are set forth beside such Revolving Lender’s name under the applicable
heading on Schedule C-1 to this Agreement or in the Assignment and Acceptance pursuant to which such Revolving Lender became a Revolving
Lender under this Agreement, as such amounts may be reduced or increased from time to time pursuant to assignments made in accordance
with the provisions of Section 13.1 of this Agreement, and as such amounts may be decreased by the amount of reductions in the
Revolver Commitments made in accordance with Section 2.4(c) hereof.


 


“Revolver
Usage” means, as of any date of determination, the sum of (a) the amount of outstanding Revolving Loans (inclusive of Swing
Loans and Protective Advances), plus (b) the amount of the Letter of Credit Usage.


 


“Revolving
Lender” means a Lender that has a Revolving Loan Exposure or Letter of Credit Exposure.


 


“Revolving
Loan Exposure” means, with respect to any Revolving Lender, as of any date of determination (a) prior to the termination of
the Revolver Commitments, the amount of such Lender’s Revolver Commitment, and (b) after the termination of the Revolver Commitments,
the aggregate outstanding principal amount of the Revolving Loans of such Lender.


 


“Revolving
Loans” has the meaning specified therefor in Section 2.1(a) of this Agreement.


 


“Sanctioned
Entity” means (a) a country or a government of a country, (b) an agency of the government of a country, (c) an organization
directly or indirectly controlled by a country or its government, or (d) a Person resident in or determined to be resident in a country,
in each case of clauses (a) through (d) that is a target of Sanctions, including a target of any country sanctions program administered
and enforced by OFAC.


 


“Sanctioned
Person” means, at any time (a) any Person named on the list of Specially Designated Nationals and Blocked Persons maintained
by OFAC, OFAC’s consolidated Non-SDN list or any other Sanctions-related list maintained by any Governmental Authority, (b) a Person
or legal entity that is a target of Sanctions, (c) any Person operating, organized or resident in a Sanctioned Entity, or (d) any Person
directly or indirectly owned or controlled (individually or in the aggregate) by or acting on behalf of any such Person or Persons described
in clauses (a) through (c) above.


 


“Sanctions”
means individually and collectively, respectively, any and all economic sanctions, trade sanctions, financial sanctions, sectoral sanctions,
secondary sanctions, trade embargoes anti-terrorism laws and other sanctions laws, regulations or embargoes, including those imposed,
administered or enforced from time to time by: (a) the United States of America, including those administered by OFAC, the U.S. Department
of State, the U.S. Department of Commerce, or through any existing or future executive order, (b) the United Nations Security Council,
(c) the European Union or any European Union member state, (d) Her Majesty’s Treasury of the United Kingdom, or (d) any other Governmental
Authority with jurisdiction over any member of Lender Group or any Loan Party or any of their respective Subsidiaries or Affiliates.


 


“S&P”
has the meaning specified therefor in the definition of Cash Equivalents.


 


“SEC”
means the United States Securities and Exchange Commission and any successor thereto.


 


“Securities
Account” means a securities account (as that term is defined in the Code).


 


“Securities
Act” means the Securities Act of 1933, as amended from time to time, and any successor statute.


 


“Settlement”
has the meaning specified therefor in Section 2.3(e)(i) of this Agreement.


 


“Settlement
Date” has the meaning specified therefor in Section 2.3(e)(i) of this Agreement.


 


“SOFR”
means a rate per annum equal to the secured overnight financing rate published by the SOFR Administrator on the SOFR Administrator’s
Website.


 






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“SOFR
Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing
rate).


 


“SOFR
Administrator’s Website” means the website of the Federal Reserve Bank of New York, currently at http://www.newyorkfed.org,
or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.


 


“SOFR
Loans” means each portion of a Revolving Loan that bears interest at a rate determined by reference to Adjusted Daily Simple
SOFR.


 


“Solvent”
means, with respect to any Person as of any date of determination, that (a) at fair valuations, the sum of such Person’s debts
(including contingent liabilities) is less than all of such Person’s assets, (b) such Person is not engaged or about to engage
in a business or transaction for which the remaining assets of such Person are unreasonably small in relation to the business or
transaction or for which the property remaining with such Person is an unreasonably small capital, (c) such Person has not incurred
and does not intend to incur, or reasonably believe that it will incur, debts beyond its ability to pay such debts as they become
due (whether at maturity or otherwise), and (d) such Person is “solvent” or not “insolvent”, as applicable
within the meaning given those terms and similar terms under applicable laws relating to fraudulent transfers and conveyances. For
purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that, in light of
all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual
or matured liability (irrespective of whether such contingent liabilities meet the criteria for accrual under Statement of Financial
Accounting Standard No. 5).


 


“Special
Eligibility Conditions” means, with respect to any item of Pacific Ethanol Acquired Inventory, that (a) such Pacific Ethanol
Acquired Inventory was purchased by a Borrower from a Pacific Ethanol Affiliate pursuant to a Marketing Agreement, (b) Agent has received
an original (or electronic copy) of such Marketing Agreement executed by the parties thereto, (c) Agent has the first priority Lien in
any such Pacific Ethanol Acquired Inventory and (d) Agent has received, in form and substance reasonably satisfactory to Agent, one or
more agreements, consents, access and/or licenses including pursuant to the Intercreditor Agreement, providing for (i) Agent’s
first priority Lien in such Pacific Ethanol Acquired Inventory and (ii) the right of Agent to access such Pacific Ethanol Acquired Inventory.


 


“Standard
Letter of Credit Practice” means, for Issuing Bank, any domestic or foreign law or letter of credit practices applicable in
the city in which Issuing Bank issued the applicable Letter of Credit or, for its branch or correspondent, such laws and practices applicable
in the city in which it has advised, confirmed or negotiated such Letter of Credit, as the case may be, in each case, (a) which letter
of credit practices are of banks that regularly issue letters of credit in the particular city, and (b) which laws or letter of credit
practices are required or permitted under ISP or UCP, as chosen in the applicable Letter of Credit.


 


“Subject
Holder” has the meaning specified therefor in Section 2.4(e)(v) of this Agreement.


 


“Subordinated
Indebtedness” means any Indebtedness of any Borrower or its Subsidiaries incurred from time to time that is subordinated in
right of payment to the Obligations and is subject to a subordination agreement or contains terms and conditions of subordination that
are acceptable to Agent.


 


“Subsidiary”
of a Person means a corporation, partnership, limited liability company, or other entity in which that Person directly or indirectly
owns or controls the Equity Interests having ordinary voting power to elect a majority of the Board of Directors of such corporation,
partnership, limited liability company, or other entity.


 


“Supported
QFC” has the meaning specified therefor in Section 17.16 of this Agreement.


 


“Swap
Inventory” shall mean, as to each Borrower other than Alto Nutrients, Inventory of such Borrower consisting of ethanol finished
goods with respect to which such Borrower has entered into a Hedge Agreement with Wells Fargo or an Affiliate thereof, providing for
coverage with respect to such Eligible Inventory in an amount equal to, on any date of determination, at least 100% of the Value thereof.


 






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“Swap
Obligation” means, with respect to any Loan Party, any obligation to pay or perform under any agreement, contract or transaction
that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.


 


“Swing
Lender” means Wells Fargo or any other Lender that, at the request of Borrowers and with the consent of Agent agrees, in such
Lender’s sole discretion, to become the Swing Lender under Section 2.3(b) of this Agreement.


 


“Swing
Loan” has the meaning specified therefor in Section 2.3(b) of this Agreement.


 


“Swing
Loan Exposure” means, as of any date of determination with respect to any Lender, such Lender’s Pro Rata Share of the
Swing Loans on such date.


 


“Syndication
Agent” has the meaning set forth in the preamble to this Agreement.


 


“Taxes”
means any taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any jurisdiction
or by any political subdivision or taxing authority thereof or therein, and all interest, penalties or similar liabilities with respect
thereto.


 


“Tax
Lender” has the meaning specified therefor in Section 14.2(a) of this Agreement.


 


“Term
Loan Agent” means OIC Investment Agent, LLC, a Delaware limited liability company, in its capacity as administrative agent
and collateral agent for the lenders under the Term Loan Agreement.


 


“Term
Loan Agreement” means the Credit Agreement, dated as of November 7, 2022, Alto Ingredients, Inc., as borrower, the subsidiary
guarantors party thereto from time to time, the lenders party thereto from time to time, and the Term Loan Agent, as amended, supplemented,
modified, extended, renewed, restated or refinanced in a manner that is not in contravention of the Intercreditor Agreement.


 


“Term
Loan Debt” shall mean the Indebtedness evidenced by the Term Loan Documents.


 


“Term
Loan Documents” means the Term Loan Agreement and all documents, instruments and other agreements from time to time entered
into by any Loan Party in connection therewith, as amended, supplemented, modified, extended, renewed, restated or refinanced in a manner
that is not in contravention of the Intercreditor Agreement.


 


“Trademark
Security Agreement” has the meaning specified therefor in the Guaranty and Security Agreement.


 


“TTM
Financial Statements” has the meaning specified therefor in Section 6.10(f) of this Agreement.


 


“UCP”
means, with respect to any Letter of Credit, the Uniform Customs and Practice for Documentary Credits 2007 Revision, International Chamber
of Commerce Publication No. 600 and any version or revision thereof accepted by Issuing Bank for use.


 


“Unfinanced
Capital Expenditures” means Capital Expenditures (a) not financed with the proceeds of any incurrence of Indebtedness (other
than the incurrence of any Revolving Loans), the proceeds of any sale or issuance of Equity Interests or equity contributions, the proceeds
of any asset sale (other than the sale of Inventory in the ordinary course of business) or (y) any insurance proceeds, and (b) that are
not reimbursed by a third person (excluding any Loan Party or any of its Affiliates) in the period such expenditures are made pursuant
to a written agreement.


 


“United
States” means the United States of America.


 


“U.S.
Government Securities Business Day” means any day except for (a) a Saturday, (b) a Sunday or (c) a day on which the Securities
Industry and Financial Markets Association, or any successor thereto, recommends that the fixed income departments of its members be
closed for the entire day for purposes of trading in United States government securities.


 






    33


     


    

 


“Unused
Line Fee” has the meaning specified therefor in Section 2.10(b) of this Agreement.


 


“U.S.
Special Resolution Regimes” has the meaning specified therefor in Section 17.16 of this Agreement.


 


“Value”
shall mean, as determined by Agent in good faith and in the exercise of its reasonable credit judgment, with respect to Inventory, the
lower of (a) cost computed on a first-in first-out basis in accordance with GAAP or (b) market value,; provided, that, for purposes of
the calculation of the Borrowing Base, (i) the Value of the Inventory shall not include: (A) the portion of the value of Inventory equal
to the profit earned by any Affiliate on the sale thereof to any Borrower or (B) write-ups or write-downs in value with respect to currency
exchange rates and, (ii) notwithstanding anything to the contrary contained herein, the cost of the Inventory shall be computed in the
same manner and consistent with the most recent appraisal of the Inventory received and accepted by Agent prior to the date hereof, if
any. For purposes of this definition, the “market value” of Inventory shall be determined based on published or reported
mark to market commodity pricing created or distributed by the Los Angeles Oil Price Information Service (commonly known as OPIS) and/or
the Chicago Board of Trade (commonly known as CBOT); provided, that, in the event that any change in market conditions shall, in the
reasonable opinion of Agent, make it impractical for Agent to determine the market value of an item of Inventory based on such publications,
or the mark to market commodity pricing of an item of Inventory is not reported or published by such publications, the Value of such
Inventory shall be determined under clause (a) of this definition.


 


“Voidable
Transfer” has the meaning specified therefor in Section 17.8 of this Agreement.


 


“Voting
Stock” shall mean with respect to any Person, one (1) or more classes of Equity Interests of such Person having general voting
powers to elect at least a majority of the board of directors, managers or trustees of such Person, irrespective of whether at the time
Equity Interests of any other class or classes have or might have voting power by reason of the happening of any contingency, and any
Equity Interests of such Person convertible or exchangeable without restriction at the option of the holder thereof into Equity Interests
of such Person described in clause (a) of this definition.


 


“Wells
Fargo” means Wells Fargo Bank, National Association, a national banking association.


 


“Withdrawal
Liability” ” means liability with respect to a Multiemployer Plan as a result of a complete or partial withdrawal from
such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.


 


“Write-Down
and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA
Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion
powers are described in the EU Bail-In Legislation Schedule.


 


1.2
 Accounting Terms. All accounting terms not specifically defined herein shall be construed in accordance with GAAP; provided,
that if Administrative Borrower notifies Agent that Borrowers request an amendment to any provision hereof to eliminate the effect of
any Accounting Change occurring after the Closing Date or in the application thereof on the operation of such provision (or if Agent
notifies Administrative Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless
of whether any such notice is given before or after such Accounting Change or in the application thereof, then Agent and Borrowers agree
that they will negotiate in good faith amendments to the provisions of this Agreement that are directly affected by such Accounting Change
with the intent of having the respective positions of the Lenders and Borrowers after such Accounting Change conform as nearly as possible
to their respective positions immediately before such Accounting Change took effect and, until any such amendments have been agreed upon
and agreed to by the Required Lenders, the provisions in this Agreement shall be calculated as if no such Accounting Change had occurred.
When used herein, the term “financial statements” shall include the notes and schedules thereto. Whenever the term “Borrowers”
is used in respect of a financial covenant or a related definition, it shall be understood to mean the Borrowers and their Subsidiaries
on a consolidated basis, unless the context clearly requires otherwise. Notwithstanding anything to the contrary contained herein, (a)
all financial statements delivered hereunder shall be prepared, and all financial covenants contained herein shall be calculated, without
giving effect to any election under the Statement of Financial Accounting Standards Board’s Accounting Standards Codification Topic
825 (or any similar accounting principle) permitting a Person to value its financial liabilities or Indebtedness at the fair value thereof,
and (b) the term “unqualified opinion” as used herein to refer to opinions or reports provided by accountants shall mean
an opinion or report that is (i) unqualified, and (ii) does not include any explanation, supplemental comment, or other comment concerning
the ability of the applicable Person to continue as a going concern or concerning the scope of the audit (except for any such qualification
pertaining to impending debt maturities of the Obligations or the Term Loan Obligations occurring within twelve (12) months of such audit
or any breach of any financial covenant thereunder).


 






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1.3
Code. Any terms used in this Agreement that are defined in the Code shall be construed and defined as set forth in the
Code unless otherwise defined herein; provided, that to the extent that the Code is used to define any term herein and such term
is defined differently in different Articles of the Code, the definition of such term contained in Article 9 of the Code shall govern.


 


1.4 Construction.
Unless the context of this Agreement or any other Loan Document clearly requires otherwise, references to the plural include the
singular, references to the singular include the plural, the terms “includes” and “including” are not
limiting, and the term “or” has, except where otherwise indicated, the inclusive meaning represented by the phrase
“and/or.” The words “hereof,” “herein,” “hereby,” “hereunder,” and
similar terms in this Agreement or any other Loan Document refer to this Agreement or such other Loan Document, as the case may be,
as a whole and not to any particular provision of this Agreement or such other Loan Document, as the case may be. Section,
subsection, clause, schedule, and exhibit references herein are to this Agreement unless otherwise specified. Any reference in this
Agreement or in any other Loan Document to any agreement, instrument, or document shall include all alterations, amendments,
changes, extensions, modifications, renewals, replacements, substitutions, joinders, and supplements, thereto and thereof, as
applicable (subject to any restrictions on such alterations, amendments, changes, extensions, modifications, renewals, replacements,
substitutions, joinders, and supplements set forth herein). The words “asset” and “property” shall be
construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties. Any
reference herein or in any other Loan Document to the satisfaction, repayment, or payment in full of the Obligations shall mean (a)
the payment or repayment in full in immediately available funds of (i) the principal amount of, and interest accrued and unpaid with
respect to, all outstanding Loans, together with the payment of any premium applicable to the repayment of the Loans, (ii) all
Lender Group Expenses that have accrued and are unpaid regardless of whether demand has been made therefor, and (iii) all fees or
charges that have accrued hereunder or under any other Loan Document (including the Letter of Credit Fee and the Unused Line Fee)
and are unpaid, (b) in the case of contingent reimbursement obligations with respect to Letters of Credit, providing Letter of
Credit Collateralization, (c) in the case of obligations with respect to Bank Products (other than Hedge Obligations), providing
Bank Product Collateralization, (d) the receipt by Agent of cash collateral in order to secure any other contingent Obligations for
which a claim or demand for payment has been made on or prior to such time or in respect of matters or circumstances known to Agent
or a Lender at such time that are reasonably expected to result in any loss, cost, damage, or expense (including attorneys’
fees and legal expenses), such cash collateral to be in such amount as Agent reasonably determines is appropriate to secure such
contingent Obligations, (e) the payment or repayment in full in immediately available funds of all other outstanding Obligations
(including the payment of any termination amount then applicable (or which would or could become applicable as a result of the
repayment of the other Obligations) under Hedge Agreements provided by Hedge Providers) other than (i) unasserted contingent
indemnification Obligations, (ii) any Bank Product Obligations (other than Hedge Obligations) that, at such time, are allowed by the
applicable Bank Product Provider to remain outstanding without being required to be repaid or cash collateralized, and (iii) any
Hedge Obligations that, at such time, are allowed by the applicable Hedge Provider to remain outstanding without being required to
be repaid, and (f) the termination of all of the Commitments of the Lenders. Any reference herein to any Person shall be construed
to include such Person’s successors and assigns. Any requirement of a writing contained herein or in any other Loan Document
shall be satisfied by the transmission of a Record.


 


1.5
Time References. Unless the context of this Agreement or any other Loan Document clearly requires otherwise, all references
to time of day refer to Pacific standard time or Pacific daylight saving time, as in effect in Los Angeles, California on such day. For
purposes of the computation of a period of time from a specified date to a later specified date, unless otherwise expressly provided,
the word “from” means “from and including” and the words “to” and “until” each means
“to and including”; provided, that with respect to a computation of fees or interest payable to Agent or any Lender,
such period shall in any event consist of at least one full day.


 


1.6
Schedules and Exhibits. All of the schedules and exhibits attached to this Agreement shall be deemed incorporated herein
by reference.


 


2.
LOANS AND TERMS OF PAYMENT.


 


2.1
Revolving Loans.


 


(a)
Subject to the terms and conditions of this Agreement, and during the term of this Agreement, each Revolving Lender agrees (severally,
not jointly or jointly and severally) to make revolving loans (“Revolving Loans”) to Borrowers in an amount at any
one time outstanding not to exceed the lesser of:


 


(i)
such Lender’s Revolver Commitment, or


 






    35


     


    

 


(ii)
such Lender’s Pro Rata Share of an amount equal to the lesser of:


 


(A) 
the amount equal to (1) the Maximum Revolver Amount, less (2) the sum of (y) the Letter of Credit Usage at such time, plus
(z) the principal amount of Swing Loans outstanding at such time, and


 


(B) 
the amount equal to (1) the Borrowing Base as of such date (based upon the most recent Borrowing Base Certificate delivered by
Borrowers to Agent, as adjusted for Reserves established by Agent in accordance with Section 2.1(c)), less (2)
the sum of (x) the Letter of Credit Usage at such time, plus (y) the principal amount of Swing Loans outstanding at
such time.


 


(b)
Amounts borrowed pursuant to this Section 2.1 may be repaid and, subject to the terms and conditions of this Agreement, reborrowed
at any time during the term of this Agreement. The outstanding principal amount of the Revolving Loans, together with interest accrued
and unpaid thereon, shall constitute Obligations and shall be due and payable on the Maturity Date or, if earlier, on the date on which
they otherwise become due and payable pursuant to the terms of this Agreement.


 


(c)
Anything to the contrary in this Section 2.1 notwithstanding, Agent shall have the right (but not the obligation) at any time,
in the exercise of its Permitted Discretion, to establish and increase or decrease Reserves and against the Borrowing Base or the Maximum
Revolver Amount. The amount of any Reserve established by Agent, and any changes to the eligibility criteria set forth in the definitions
of Eligible Accounts, Eligible Inventory, and Eligible In-Transit Inventory shall have a reasonable relationship to the event, condition,
other circumstance, or fact that is the basis for such reserve or change in eligibility and shall not be duplicative of any other reserve
established and currently maintained or eligibility criteria. Upon establishment or increase in Reserves, Agent agrees to make itself
available to discuss the Reserve or increase, and Borrowers may take such action as may be required so that the event, condition, circumstance,
or fact that is the basis for such reserve or increase no longer exists, in a manner and to the extent reasonably satisfactory to Agent
in the exercise of its Permitted Discretion. In no event shall such opportunity limit the right of Agent to establish or change such
Reserve, unless Agent shall have determined, in its Permitted Discretion, that the event, condition, other circumstance, or fact that
was the basis for such Reserve or such change no longer exists or has otherwise been adequately addressed by Borrowers.


 


2.2
 [Reserved]


 


2.3
Borrowing Procedures and Settlements.


 


(a)
Procedure for Borrowing Revolving Loans. Each Borrowing shall be made by a written request by an Authorized Person delivered to
Agent (which may be delivered through Agent’s electronic platform or portal) and received by Agent no later than 11:00 a.m. (i)
on the Business Day that is the requested Funding Date in the case of a request for a Swing Loan, and (ii) on the Business Day that is
three Business Days prior to the requested Funding Date in the case of all other requests, specifying (A) the amount of such Borrowing,
and (B) the requested Funding Date (which shall be a Business Day); provided, that Agent may, in its sole discretion, elect to accept
as timely requests that are received later than 11:00 a.m. on the applicable Business Day. All Borrowing requests which are not made
on-line via Agent’s electronic platform or portal shall be subject to (and unless Agent elects otherwise in the exercise of its
sole discretion, such Borrowings shall not be made until the completion of) Agent’s authentication process (with results satisfactory
to Agent) prior to the funding of any such requested Revolving Loan.


 


(b) Making
of Swing Loans. In the case of a Revolving Loan and so long as any of (i) the aggregate amount of Swing Loans made since the
last Settlement Date, minus all payments or other amounts applied to Swing Loans since the last Settlement Date, plus
the amount of the requested Swing Loan does not exceed $10,000,000, or (ii) Swing Lender, in its sole discretion, agrees to make a
Swing Loan notwithstanding the foregoing limitation, Swing Lender shall make a Revolving Loan (any such Revolving Loan made by Swing
Lender pursuant to this Section 2.3(b) being referred to as a “Swing Loan” and all such Revolving Loans
being referred to as “Swing Loans”) available to Borrowers on the Funding Date applicable thereto by transferring
immediately available funds in the amount of such Borrowing to the Designated Account. Each Swing Loan shall be deemed to be a
Revolving Loan hereunder and shall be subject to all the terms and conditions (including Section 3) applicable to other
Revolving Loans, except that all payments (including interest) on any Swing Loan shall be payable to Swing Lender solely for its own
account. Subject to the provisions of Section 2.3(d)(ii), Swing Lender shall not make and shall not be obligated to make any
Swing Loan if Swing Lender has actual knowledge that (i) one or more of the applicable conditions precedent set forth in Section
3 will not be satisfied on the requested Funding Date for the applicable Borrowing, or (ii) the requested Borrowing would exceed
the Availability on such Funding Date. Swing Lender shall not otherwise be required to determine whether the applicable conditions
precedent set forth in Section 3 have been satisfied on the Funding Date applicable thereto prior to making any Swing Loan.
The Swing Loans shall be secured by Agent’s Liens, constitute Revolving Loans and Obligations, and bear interest at the rate
applicable from time to time to all other Revolving Loans and Obligations.


 






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(c)
Making of Revolving Loans.


 


(i)
In the event that Swing Lender is not obligated to make a Swing Loan, then after receipt of a request for a Borrowing pursuant to Section
2.3(a)(i), Agent shall notify the Lenders by telecopy, telephone, email, or other electronic form of transmission, of the requested
Borrowing; such notification to be sent on the Business Day that is at least one Business Day prior to the requested Funding Date. If
Agent has notified the Lenders of a requested Borrowing on the Business Day that is one Business Day prior to the Funding Date, then
each Lender shall make the amount of such Lender’s Pro Rata Share of the requested Borrowing available to Agent in immediately
available funds, to Agent’s Account, not later than 10:00 a.m. on the Business Day that is the requested Funding Date. After Agent’s
receipt of the proceeds of such Revolving Loans from the Lenders, Agent shall make the proceeds thereof available to Borrowers on the
applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to the Designated Account;
provided, that subject to the provisions of Section 2.3(d)(ii), no Lender shall have an obligation to make any Revolving
Loan, if (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested
Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Availability
on such Funding Date.


 


(ii)
Unless Agent receives notice from a Lender prior to 9:30 a.m. on the Business Day that is the requested Funding Date relative to a requested
Borrowing as to which Agent has notified the Lenders of a requested Borrowing that such Lender will not make available as and when required
hereunder to Agent for the account of Borrowers the amount of that Lender’s Pro Rata Share of the Borrowing, Agent may assume that
each Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but
shall not be so required), in reliance upon such assumption, make available to Borrowers a corresponding amount. If, on the requested
Funding Date, any Lender shall not have remitted the full amount that it is required to make available to Agent in immediately available
funds and if Agent has made available to Borrowers such amount on the requested Funding Date, then such Lender shall make the amount
of such Lender’s Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent’s
Account, no later than 10:00 a.m. on the Business Day that is the first Business Day after the requested Funding Date (in which case,
the interest accrued on such Lender’s portion of such Borrowing for the Funding Date shall be for Agent’s separate account).
If any Lender shall not remit the full amount that it is required to make available to Agent in immediately available funds as and when
required hereby and if Agent has made available to Borrowers such amount, then that Lender shall be obligated to immediately remit such
amount to Agent, together with interest at the Defaulting Lender Rate for each day until the date on which such amount is so remitted.
A notice submitted by Agent to any Lender with respect to amounts owing under this Section 2.3(c)(ii) shall be conclusive, absent
manifest error. If the amount that a Lender is required to remit is made available to Agent, then such payment to Agent shall constitute
such Lender’s Revolving Loan for all purposes of this Agreement. If such amount is not made available to Agent on the Business
Day following the Funding Date, Agent will notify Administrative Borrower of


 


such
failure to fund and, upon demand by Agent, Borrowers shall pay such amount to Agent for Agent’s account, together with interest
thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal to the interest rate applicable at the time
to the Revolving Loans composing such Borrowing.


 


(d)
Protective Advances and Optional Overadvances.


 


(i)
Any contrary provision of this Agreement or any other Loan Document notwithstanding (but subject to Section 2.3(d)(iv)), at any
time (A) after the occurrence and during the continuance of a Default or an Event of Default, or (B) that any of the other applicable
conditions precedent set forth in Section 3 are not satisfied, Agent hereby is authorized by Borrowers and the Lenders, from time
to time, in Agent’s sole discretion, to make Revolving Loans to, or for the benefit of, Borrowers, on behalf of the Revolving Lenders,
that Agent, in its Permitted Discretion, deems necessary or desirable (1) to preserve or protect the Collateral, or any portion thereof,
or (2) to enhance the likelihood of repayment of the Obligations (other than the Bank Product Obligations) (the Revolving Loans described
in this Section 2.3(d)(i) shall be referred to as “Protective Advances”). In any event if any Protective Advance
remains outstanding for more than 60 days, unless otherwise agreed to by the Required Lenders, Borrowers shall immediately repay such
Protective Advance. Notwithstanding the foregoing, the aggregate amount of all Protective Advances outstanding at any one time shall
not exceed 10% of the Borrowing Base.


 






    37


     


    

 


(ii)
Any contrary provision of this Agreement or any other Loan Document notwithstanding, the Lenders hereby authorize Agent or Swing Lender,
as applicable, and either Agent or Swing Lender, as applicable, may, but is not obligated to, knowingly and intentionally, continue to
make Revolving Loans (including Swing Loans) to Borrowers notwithstanding that an Overadvance exists or would be created thereby, so
long as (A) after giving effect to such Revolving Loans, the outstanding Revolver Usage does not exceed the Borrowing Base by more than
10% of the Borrowing Base, and (B) subject to Section 2.3(d)(iv) below, after giving effect to such Revolving Loans, the outstanding
Revolver Usage (except for and excluding amounts charged to the Loan Account for interest, fees, or Lender Group Expenses) does not exceed
the Maximum Revolver Amount. In the event Agent obtains actual knowledge that the Revolver Usage exceeds the amounts permitted by this
Section 2.3(d), regardless of the amount of, or reason for, such excess, Agent shall notify the Lenders as soon as practicable
(and prior to making any (or any additional) intentional Overadvances (except for and excluding amounts charged to the Loan Account for
interest, fees, or Lender Group Expenses) unless Agent determines that prior notice would result in imminent harm to the Collateral or
its value, in which case Agent may make such Overadvances and provide notice as promptly as practicable thereafter), and the Lenders
with Revolver Commitments thereupon shall, together with Agent, jointly determine the terms of arrangements that shall be implemented
with Borrowers intended to reduce, within a reasonable time, the outstanding principal amount of the Revolving Loans to Borrowers to
an amount permitted by the preceding sentence. In such circumstances, if any Lender with a Revolver Commitment objects to the proposed
terms of reduction or repayment of any Overadvance, the terms of reduction or repayment thereof shall be implemented according to the
determination of the Required Lenders. In any event if any Overadvance not otherwise made or permitted pursuant to this Section 2.3(d)
remains outstanding for more than 60 days, unless otherwise agreed to by the Required Lenders, Borrowers shall immediately repay
Revolving Loans in an amount sufficient to eliminate all such Overadvances not otherwise made or permitted to this Section 2.3(d)
The foregoing provisions are meant for the benefit of the Lenders and Agent and are not meant for the benefit of Borrowers, which
shall continue to be bound by the provisions of Section 2.4(e)(1).


 


(iii)
Each Protective Advance and each Overadvance (each, an “Extraordinary Advance”) shall be deemed to be a Revolving Loan
hereunder. Prior to Settlement of any Extraordinary Advance, all payments with respect thereto, including interest thereon, shall be
payable to Agent solely for its own account. Each Revolving Lender shall be obligated to settle with Agent as provided in Section
2.3(e) (or Section 2.3(g), as applicable) for the amount of such Lender’s Pro Rata Share of any Extraordinary
Advance. The Extraordinary Advances shall be repayable on demand, secured by Agent’s Liens, constitute Obligations hereunder,
and bear interest at the rate applicable from time to time to Revolving Loans. The provisions of this Section 2.3(d) are for
the exclusive benefit of Agent, Swing Lender, and the Lenders and are not intended to benefit Borrowers (or any other Loan Party) in
any way.


 


(iv)
Notwithstanding anything contained in this Agreement or any other Loan Document to the contrary, no Extraordinary Advance may be made
by Agent if such Extraordinary Advance would cause the aggregate Revolver Usage to exceed the Maximum Revolver Amount or any Lender’s
Pro Rata Share of the Revolver Usage to exceed such Lender’s Revolver Commitments; provided that Agent may make Extraordinary
Advances in excess of the foregoing limitations so long as such Extraordinary Advances that cause the aggregate Revolver Usage to exceed
the Maximum Revolver Amount or a Lender’s Pro Rata Share of the Revolver Usage to exceed such Lender’s Revolver Commitments
are for Agent’s sole and separate account and not for the account of any Lender. No Lender shall have an obligation to settle with
Agent for such Extraordinary Advances that cause the aggregate Revolver Usage to exceed the Maximum Revolver Amount or a Lender’s
Pro Rata Share of the Revolver Usage to exceed such Lender’s Revolver Commitments as provided in Section 2.3(e) (or Section
2.3(g), as applicable).


 






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(e)
Settlement. It is agreed that each Lender’s funded portion of the Revolving Loans is intended by the Lenders to equal, at
all times, such Lender’s Pro Rata Share of the outstanding Revolving Loans. Such agreement notwithstanding, Agent, Swing Lender,
and the other Lenders agree (which agreement shall not be for the benefit of Borrowers) that in order to facilitate the administration
of this Agreement and the other Loan Documents, settlement among the Lenders as to the Revolving Loans (including Swing Loans and Extraordinary
Advances) shall take place on a periodic basis in accordance with the following provisions:


 


(i)
Agent shall request settlement (“Settlement”) with the Lenders on a weekly basis, or on a more frequent basis if
so determined by Agent in its sole discretion (1) on behalf of Swing Lender, with respect to the outstanding Swing Loans, (2) for
itself, with respect to the outstanding Extraordinary Advances, and (3) with respect to any Borrower’s or any of their
Subsidiaries’ payments or other amounts received, as to each by notifying the Lenders by telecopy, telephone, or other similar
form of transmission, of such requested Settlement, no later than 2:00 p.m. on the Business Day immediately prior to the date of
such requested Settlement (the date of such requested Settlement being the “Settlement Date”). Such notice of a
Settlement Date shall include a summary statement of the amount of outstanding Revolving Loans (including Swing Loans and
Extraordinary Advances) for the period since the prior Settlement Date. Subject to the terms and conditions contained herein
(including Section 2.3(g)): (y) if the amount of the Revolving Loans (including Swing Loans and Extraordinary Advances) made
by a Lender that is not a Defaulting Lender exceeds such Lender’s Pro Rata Share of the Revolving Loans (including Swing Loans
and Extraordinary Advances) as of a Settlement Date, then Agent shall, by no later than 12:00 p.m. on the Settlement Date, transfer
in immediately available funds to a Deposit Account of such Lender (as such Lender may designate), an amount such that each such
Lender shall, upon receipt of such amount, have as of the Settlement Date, its Pro Rata Share of the Revolving Loans (including
Swing Loans and Extraordinary Advances), and (z) if the amount of the Revolving Loans (including Swing Loans and Extraordinary
Advances) made by a Lender is less than such Lender’s Pro Rata Share of the Revolving Loans (including Swing Loans and
Extraordinary Advances) as of a Settlement Date, such Lender shall no later than 12:00 p.m. on the Settlement Date transfer in
immediately available funds to Agent’s Account, an amount such that each such Lender shall, upon transfer of such amount, have
as of the Settlement Date, its Pro Rata Share of the Revolving Loans (including Swing Loans and Extraordinary Advances). Such
amounts made available to Agent under clause (z) of the immediately preceding sentence shall be applied against the amounts of the
applicable Swing Loans or Extraordinary Advances and, together with the portion of such Swing Loans or Extraordinary Advances
representing Swing Lender’s Pro Rata Share thereof, shall constitute Revolving Loans of such Lenders. If any such amount is
not made available to Agent by any Lender on the Settlement Date applicable thereto to the extent required by the terms hereof,
Agent shall be entitled to recover for its account such amount on demand from such Lender together with interest thereon at the
Defaulting Lender Rate.


 


(ii)
In determining whether a Lender’s balance of the Revolving Loans (including Swing Loans and Extraordinary Advances) is less than,
equal to, or greater than such Lender’s Pro Rata Share of the Revolving Loans (including Swing Loans and Extraordinary Advances)
as of a Settlement Date, Agent shall, as part of the relevant Settlement, apply to such balance the portion of payments actually received
in good funds by Agent with respect to principal, interest, fees payable by Borrowers and allocable to the Lenders hereunder, and proceeds
of Collateral.


 


(iii)
Between Settlement Dates, Agent, to the extent Extraordinary Advances or Swing Loans are outstanding, may pay over to Agent or Swing
Lender, as applicable, any payments or other amounts received by Agent, that in accordance with the terms of this Agreement would be
applied to the reduction of the Revolving Loans, for application to the Extraordinary Advances or Swing Loans. Between Settlement Dates,
Agent, to the extent no Extraordinary Advances or Swing Loans are outstanding, may pay over to Swing Lender any payments or other amounts
received by Agent, that in accordance with the terms of this Agreement would be applied to the reduction of the Revolving Loans, for
application to Swing Lender’s Pro Rata Share of the Revolving Loans. If, as of any Settlement Date, payments or other amounts of
the Borrowers or their Subsidiaries received since the then immediately preceding Settlement Date have been applied to Swing Lender’s
Pro Rata Share of the Revolving Loans other than to Swing Loans, as provided for in the previous sentence, Swing Lender shall pay to
Agent for the accounts of the Lenders, and Agent shall pay to the Lenders (other than a Defaulting Lender if Agent has implemented the
provisions of Section 2.3(g)), to be applied to the outstanding Revolving Loans of such Lenders, an amount such that each such
Lender shall, upon receipt of such amount, have, as of such Settlement Date, its Pro Rata Share of the Revolving Loans. During the period
between Settlement Dates, Swing Lender with respect to Swing Loans, Agent with respect to Extraordinary Advances, and each Lender with
respect to the Revolving Loans other than Swing Loans and Extraordinary Advances, shall be entitled to interest at the applicable rate
or rates payable under this Agreement on the daily amount of funds employed by Swing Lender, Agent, or the Lenders, as applicable.


 






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(iv)
Anything in this Section 2.3(e) to the contrary notwithstanding, in the event that a Lender is a Defaulting Lender, Agent shall
be entitled to refrain from remitting settlement amounts to the Defaulting Lender and, instead, shall be entitled to elect to implement
the provisions set forth in Section 2.3(g).


 


(f)
Notation. Consistent with Section 13.1(h), Agent, as a non-fiduciary agent for Borrowers, shall maintain a register showing
the principal amount and stated interest of the Revolving Loans, owing to each Lender, including the Swing Loans owing to Swing Lender,
and Extraordinary Advances owing to Agent, and the interests therein of each Lender, from time to time and such register shall, absent
manifest error, conclusively be presumed to be correct and accurate.


 


(g)
Defaulting Lenders.


 


(i)
Notwithstanding the provisions of Section 2.4(b)(iii), Agent shall not be obligated to transfer to a Defaulting Lender any
payments made by Borrowers to Agent for the Defaulting Lender’s benefit or any proceeds of Collateral that would otherwise be
remitted hereunder to the Defaulting Lender, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any
such payments (A) first, to Agent to the extent of any Extraordinary Advances that were made by Agent and that were required to be,
but were not, paid by Defaulting Lender, (B) second, to Swing Lender to the extent of any Swing Loans that were made by Swing Lender
and that were required to be, but were not, paid by the Defaulting Lender, (C) third, to Issuing Bank, to the extent of the portion
of a Letter of Credit Disbursement that was required to be, but was not, paid by the Defaulting Lender, (D) fourth, to each
Non-Defaulting Lender ratably in accordance with their Commitments (but, in each case, only to the extent that such Defaulting
Lender’s portion of a Revolving Loan (or other funding obligation) was funded by such other Non-Defaulting Lender), (E) fifth,
in Agent’s sole discretion, to a suspense account maintained by Agent, the proceeds of which shall be retained by Agent and
may be made available to be re-advanced to or for the benefit of Borrowers (upon the request of Borrowers and subject to the
conditions set forth in Section 3.2) as if such Defaulting Lender had made its portion of Revolving Loans (or other funding
obligations) hereunder, and (F) sixth, from and after the date on which all other Obligations have been paid in full, to such
Defaulting Lender in accordance with tier (L) of Section 2.4(b)(iii). Subject to the foregoing, Agent may hold and, in its
discretion, re-lend to Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by
Agent for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan
Documents (including the calculation of Pro Rata Share in connection therewith) and for the purpose of calculating the fee payable
under Section 2.10(b), such Defaulting Lender shall be deemed not to be a “Lender” and such Lender’s
Commitment shall be deemed to be zero; provided, that the foregoing shall not apply to any of the matters governed by Section
14.1(a)(i) through (iii). The provisions of this Section 2.3(g) shall remain effective with respect to such
Defaulting Lender until the earlier of (y) the date on which all of the Non-Defaulting Lenders, Agent, Issuing Bank, and Borrowers
shall have waived, in writing, the application of this Section 2.3(g) to such Defaulting Lender, or (z) the date on which
such Defaulting Lender makes payment of all amounts that it was obligated to fund hereunder, pays to Agent all amounts owing by
Defaulting Lender in respect of the amounts that it was obligated to fund hereunder, and, if requested by Agent, provides adequate
assurance of its ability to perform its future obligations hereunder (on which earlier date, so long as no Event of Default has
occurred and is continuing, any remaining cash collateral held by Agent pursuant to Section 2.3(g)(ii) shall be released to
Borrowers). The operation of this Section 2.3(g) shall not be construed to increase or otherwise affect the Commitment of any
Lender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder,
or to relieve or excuse the performance by any Borrower of its duties and obligations hereunder to Agent, Issuing Bank, or to the
Lenders other than such Defaulting Lender. Any failure by a Defaulting Lender to fund amounts that it was obligated to fund
hereunder shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Borrowers, at their
option, upon written notice to Agent, to arrange for a substitute Lender to assume the Commitment of such Defaulting Lender, such
substitute Lender to be reasonably acceptable to Agent. In connection with the arrangement of such a substitute Lender, the
Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of
Assignment and Acceptance in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such
document if it fails to do so) subject only to being paid its share of the outstanding Obligations (other than Bank Product
Obligations, but including (1) all interest, fees, and other amounts that may be due and payable in respect thereof, and (2) an
assumption of its Pro Rata Share of its participation in the Letters of Credit); provided, that any such assumption of the
Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or
Borrowers’ rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund. In the
event of a direct conflict between the priority provisions of this Section 2.3(g) and any other provision contained in this
Agreement or any other Loan Document, it is the intention of the parties hereto that such provisions be read together and construed,
to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be
resolved as aforesaid, the terms and provisions of this Section 2.3(g) shall control and govern.


 




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(ii)
 If any Swing Loan or Letter of Credit is outstanding at the time that a Lender becomes a Defaulting Lender then:


 


(A) 
such Defaulting Lender’s Swing Loan Exposure and Letter of Credit Exposure shall be reallocated among the Non-Defaulting Lenders
in accordance with their respective Pro Rata Shares but only to the extent (x) the sum of all Non-Defaulting Lenders’ Pro Rata
Share of Revolver Usage plus such Defaulting Lender’s Swing Loan Exposure and Letter of Credit Exposure does not exceed the total
of all Non-Defaulting Lenders’ Revolver Commitments and (y) the conditions set forth in Section 3.2 are satisfied at such
time;


 


(B) 
if the reallocation described in clause (A) above cannot, or can only partially, be effected, Borrowers shall within one Business Day
following notice by the Agent (x) first, prepay such Defaulting Lender’s Swing Loan Exposure (after giving effect to any partial
reallocation pursuant to clause (A) above), and (y) second, cash collateralize such Defaulting Lender’s Letter of Credit Exposure
(after giving effect to any partial reallocation pursuant to clause (A) above), pursuant to a cash collateral agreement to be entered
into in form and substance reasonably satisfactory to the Agent, for so long as such Letter of Credit Exposure is outstanding; provided,
that Borrowers shall not be obligated to cash collateralize any Defaulting Lender’s Letter of Credit Exposure if such Defaulting
Lender is also Issuing Bank;


 


(C) 
if Borrowers cash collateralize any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to this Section 2.3(g)(ii),
Borrowers shall not be required to pay any Letter of Credit Fees to Agent for the account of such Defaulting Lender pursuant to Section
2.6(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit Exposure during the period
such Letter of Credit Exposure is cash collateralized;


 


(D) 
to the extent the Letter of Credit Exposure of the Non-Defaulting Lenders is reallocated pursuant to this Section 2.3(g)(ii),
then the Letter of Credit Fees payable to the Non-Defaulting Lenders pursuant to Section 2.6(b) shall be adjusted in accordance
with such Non-Defaulting Lenders’ Letter of Credit Exposure;


 


(E)
to the extent any Defaulting Lender’s Letter of Credit Exposure is neither cash collateralized nor reallocated pursuant to this
Section 2.3(g)(ii), then, without prejudice to any rights or remedies of Issuing Bank or any Lender hereunder, all Letter of Credit
Fees that would have otherwise been payable to such Defaulting Lender under Section 2.6(b) with respect to such portion of such
Letter of Credit Exposure shall instead be payable to Issuing Bank until such portion of such Defaulting Lender’s Letter of Credit
Exposure is cash collateralized or reallocated;


 


(F)
so long as any Lender is a Defaulting Lender, the Swing Lender shall not be required to make any Swing Loan and Issuing Bank shall not
be required to issue, amend, or increase any Letter of Credit, in each case, to the extent (x) the Defaulting Lender’s Pro Rata
Share of such Swing Loans or Letter of Credit cannot be reallocated pursuant to this Section 2.3(g)(ii), or (y) the Swing Lender
or Issuing Bank, as applicable, has not otherwise entered into arrangements reasonably satisfactory to the Swing Lender or Issuing Bank,
as applicable, and Borrowers to eliminate the Swing Lender’s or Issuing Bank’s risk with respect to the Defaulting Lender’s
participation in Swing Loans or Letters of Credit; and


 


(G)
Agent may release any cash collateral provided by Borrowers pursuant to this Section 2.3(g)(ii) to Issuing Bank and Issuing
Bank may apply any such cash collateral to the payment of such Defaulting Lender’s Pro Rata Share of any Letter of Credit
Disbursement that is not reimbursed by Borrowers pursuant to Section 2.11(d). Subject to Section 17.14, no
reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising
from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such
Non-Defaulting Lender’s increased exposure following such reallocation.


 


(h)
Independent Obligations. All Revolving Loans (other than Swing Loans and Extraordinary Advances) shall be made by the Lenders
contemporaneously and in accordance with their Pro Rata Shares. It is understood that (i) no Lender shall be responsible for any failure
by any other Lender to perform its obligation to make any Revolving Loan (or other extension of credit) hereunder, nor shall any Commitment
of any Lender be increased or decreased as a result of any failure by any other Lender to perform its obligations hereunder, and (ii)
no failure by any Lender to perform its obligations hereunder shall excuse any other Lender from its obligations hereunder.


 






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2.4
Payments; Reductions of Commitments; Prepayments.


 


(a)
Payments by Borrowers.


 


(i)
Except as otherwise expressly provided herein, all payments by Borrowers shall be made to Agent’s Account for the account of the
Lender Group and shall be made in immediately available funds, no later than 1:30 p.m. on the date specified herein. Any payment received
by Agent later than 1:30 p.m. shall be deemed to have been received (unless Agent, in its sole discretion, elects to credit it on the
date received) on the following Business Day and any applicable interest or fee shall continue to accrue until such following Business
Day.


 


(ii)
Unless Agent receives notice from Borrowers prior to the date on which any payment is due to the Lenders that Borrowers will not make
such payment in full as and when required, Agent may assume that Borrowers have made (or will make) such payment in full to Agent on
such date in immediately available funds and Agent may (but shall not be so required), in reliance upon such assumption, distribute to
each Lender on such due date an amount equal to the amount then due such Lender. If and to the extent Borrowers do not make such payment
in full to Agent on the date when due, each Lender severally shall repay to Agent on demand such amount distributed to such Lender, together
with interest thereon at the Defaulting Lender Rate for each day from the date such amount is distributed to such Lender until the date
repaid.


 


(b)
Apportionment and Application.


 


(i)
So long as no Application Event has occurred and is continuing and except as otherwise provided herein with respect to Defaulting Lenders,
all principal and interest payments received by Agent shall be apportioned ratably among the Lenders (according to the unpaid principal
balance of the Obligations to which such payments relate held by each Lender) and all payments of fees and expenses received by Agent
(other than fees or expenses that are for Agent’s separate account or for the separate account of Issuing Bank) shall be apportioned
ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee or expense relates.


 


(ii)
Subject to Section 2.4(b)(v), Section 2.4(d)(ii), and Section 2.4(e), all payments to be made hereunder by Borrowers
shall be remitted to Agent and all such payments, and all proceeds of Collateral received by Agent, shall be applied, so long as no Application
Event has occurred and is continuing and except as otherwise provided herein with respect to Defaulting Lenders, to reduce the balance
of the Revolving Loans outstanding and, thereafter, to Borrowers (to be wired to the Designated Account) or such other Person entitled
thereto under applicable law.


 


(iii)
 At any time that an Application Event has occurred and is continuing and except as otherwise provided herein with respect to Defaulting
Lenders, all payments remitted to Agent and all proceeds of Collateral received by Agent shall be applied as follows:


 


(A) 
first, to pay any Lender Group Expenses (including cost or expense reimbursements) or indemnities then due to Agent under the
Loan Documents and to pay interest and principal on Extraordinary Advances that are held solely by Agent pursuant to the terms of Section
2.4(d)(iv), until paid in full,


 


(B) 
second, to pay any fees or premiums then due to Agent under the Loan Documents, until paid in full,


 


(C) 
third, to pay interest due in respect of all Protective Advances, until paid in full,


 


(D) 
fourth, to pay the principal of all Protective Advances, until paid in full,


 


(E)
fifth, ratably, to pay any Lender Group Expenses (including cost or expense reimbursements) or indemnities then due to any of
the Lenders under the Loan Documents, until paid in full,


 


(F)
sixth, ratably, to pay any fees or premiums then due to any of the Lenders under the Loan Documents, until paid in full,


 






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(G) 
seventh, to pay interest accrued in respect of the Swing Loans, until paid in full,


 


(H) 
eighth, to pay the principal of all Swing Loans, until paid in full,


 


(I)
ninth, ratably, to pay interest accrued in respect of the Revolving Loans (other than Protective Advances), until paid in full,


 


(J)
tenth, ratably


 


i.
ratably, to pay the principal of all Revolving Loans, until paid in full,


 


ii.
to Agent, to be held by Agent, for the benefit of Issuing Bank (and for the ratable benefit of each of the Lenders that have an obligation
to pay to Agent, for the account of Issuing Bank, a share of each Letter of Credit Disbursement), as cash collateral in an amount up
to 105% of the Letter of Credit Usage (to the extent permitted by applicable law, such cash collateral shall be applied to the reimbursement
of any Letter of Credit Disbursement as and when such disbursement occurs and, if a Letter of Credit expires undrawn, the cash collateral
held by Agent in respect of such Letter of Credit shall, to the extent permitted by applicable law, be reapplied pursuant to this Section
2.4(b)(iii), beginning with tier (A) hereof),


 


iii.
ratably to (y) the Bank Product Provider based upon amounts then certified by each applicable Bank Product Provider to Agent (in
form and substance satisfactory to Agent) to be due and payable to such Bank Product Provider on account of Bank Product
Obligations, and (z) with any balance to be paid to Agent, to be held by Agent, for the ratable benefit of the Bank Product
Providers, as cash collateral (which cash collateral may be released by Agent to the applicable Bank Product Provider and applied by
such Bank Product Provider to the payment or reimbursement of any amounts due and payable with respect to Bank Product Obligations
owed to the applicable Bank Product Provider as and when such amounts first become due and payable and, if and at such time as all
such Bank Product Obligations are paid or otherwise satisfied in full, the cash collateral held by Agent in respect of such Bank
Product Obligations shall be reapplied pursuant to this Section 2.4(b)(iii), beginning with tier (A) hereof,


 


(K) 
eleventh, to pay any other Obligations other than Obligations owed to Defaulting Lenders,


 


(L)
twelfth, ratably to pay any Obligations owed to Defaulting Lenders; and


 


(M)
thirteenth, to Borrowers (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.


 


(iv)
Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such
funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.3(e).


 


(v)
In each instance, so long as no Application Event has occurred and is continuing, Section 2.4(b)(ii) shall not apply to any payment
made by Borrowers to Agent and specified by Borrowers to be for the payment of specific Obligations then due and payable (or prepayable)
under any provision of this Agreement or any other Loan Document.


 


(vi)
For purposes of Section 2.4(b)(iii), “paid in full” of a type of Obligation means payment in cash or immediately available
funds of all amounts owing on account of such type of Obligation, including interest accrued after the commencement of any Insolvency
Proceeding, default interest, interest on interest, and expense reimbursements, irrespective of whether any of the foregoing would be
or is allowed or disallowed in whole or in part in any Insolvency Proceeding.


 


(vii)
In the event of a direct conflict between the priority provisions of this Section 2.4 and any other provision contained in this
Agreement or any other Loan Document, it is the intention of the parties hereto that such provisions be read together and construed,
to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be
resolved as aforesaid, if the conflict relates to the provisions of Section 2.3(g) and this Section 2.4, then the provisions
of Section 2.3(g) shall control and govern, and if otherwise, then the terms and provisions of this Section 2.4 shall control
and govern.


 






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(c)
Termination of Revolver Commitments. The Revolver Commitments shall terminate on the Maturity Date or earlier termination thereof
pursuant to the terms of this Agreement.


 


(d)
Optional Prepayments. Borrowers may prepay the principal of any Revolving Loan at any time in whole or in part, without premium
or penalty.


 


(e) Mandatory
Prepayments. If, at any time, the Revolver Usage on such date exceeds the lesser of (A) the Borrowing Base reflected in the
Borrowing Base Certificate most recently delivered by Borrowers to Agent, or (B) the Maximum Revolver Amount, in all cases as
adjusted for Reserves established by Agent in accordance with Section 2.1(c), then Borrowers shall promptly, but in any
event, within one Business Day, prepay the Obligations in accordance with Section 2.4(f)(i) in an aggregate amount equal to
the amount of such excess.


 


(f)
Application of Payments.


 


(i)
Each prepayment pursuant to Section 2.4(e) shall, (1) so long as no Application Event shall have occurred and be continuing, be
applied, first, to the outstanding principal amount of the Revolving Loans until paid in full, and second, to cash collateralize
the Letters of Credit in an amount equal to 105% of the then outstanding Letter of Credit Usage, and (2) if an Application Event shall
have occurred and be continuing, be applied in the manner set forth in Section 2.4(b)(iii).


 


2.5
Promise to Pay; Promissory Notes.


 


(a)
Borrowers agree to pay the Lender Group Expenses on the earlier of (i) the first day of the month following the date on which the applicable
Lender Group Expenses were first incurred, or (ii) the date on which demand therefor is made by Agent (it being acknowledged and agreed
that any charging of such costs, expenses or Lender Group Expenses to the Loan Account pursuant to the provisions of Section 2.6(d)
shall be deemed to constitute a demand for payment thereof for the purposes of this subclause (ii)). Borrowers promise to pay all
of the Obligations (including principal, interest, premiums, if any, fees, costs, and expenses (including Lender Group Expenses)) in
full on the Maturity Date or, if earlier, on the date on which the Obligations (other than the Bank Product Obligations) become due and
payable pursuant to the terms of this Agreement. Borrowers agree that their obligations contained in the first sentence of this Section
2.5(a) shall survive payment or satisfaction in full of all other Obligations.


 


(b)
Any Lender may request that any portion of its Commitments or the Loans made by it be evidenced by one or more promissory notes. In such
event, Borrowers shall execute and deliver to such Lender the requested promissory notes payable to the order of such Lender in a form
furnished by Agent and reasonably satisfactory to Borrowers. Thereafter, the portion of the Commitments and Loans evidenced by such promissory
notes and interest thereon shall at all times be represented by one or more promissory notes in such form payable to the order of the
payee named therein.


 


2.6
Interest Rates and Letter of Credit Fee: Rates, Payments, and Calculations.


 


(a)
Interest Rates. Except as provided in Section 2.6(c), all Obligations (except for undrawn Letters of Credit) that have been charged
to the Loan Account pursuant to the terms hereof shall bear interest at a per annum rate equal to the Adjusted Daily Simple SOFR plus
the Applicable Margin.


 


(b)
Letter of Credit Fee. Borrowers shall pay Agent (for the ratable benefit of the Revolving Lenders), a Letter of Credit fee (the
“Letter of Credit Fee”) (which fee shall be in addition to the fronting fees and commissions, other fees, charges
and expenses set forth in Section 2.11(k)) that shall accrue at a rate equal to the Applicable Margin times the average
amount of the Letter of Credit Usage during the immediately preceding month (or portion thereof)].


 


(c) Default
Rate. (i) Automatically upon the occurrence and during the continuation of an Event of Default under Section 8.4 or 8.5
and (ii) upon the occurrence and during the continuation of any other Event of Default (other than an Event of Default under Section
8.4 or 8.5), at the direction of Agent or the Required Lenders, and upon written notice by Agent to Borrowers of such
direction (provided, that such notice shall not be required for any Event of Default under Section 8.1), (A) all Loans
and all Obligations (except for undrawn Letters of Credit) that have been charged to the Loan Account pursuant to the terms hereof
shall bear interest at a per annum rate equal to two percentage points above the per annum rate otherwise applicable
thereunder, and (B) the Letter of Credit Fee shall be increased to two percentage points above the per annum rate otherwise
applicable hereunder.


 






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(d)
Payment. Except to the extent provided to the contrary in Section 2.10, Section 2.11(k) or Section 2.12,
(i) all interest and all other fees payable hereunder or under any of the other Loan Documents (other than Letter of Credit Fees) shall
be due and payable, in arrears, on the first day of each month,, (ii) all Letter of Credit Fees payable hereunder, and all fronting fees
and all commissions, other fees, charges and expenses provided for in Section 2.11(k) shall be due and payable, in arrears, on
the first Business Day of each month; and (iii) all costs and expenses payable hereunder or under any of the other Loan Documents, and
all other Lender Group Expenses shall be due and payable on the earlier of (x) the first day of the month following the date on which
the applicable costs, expenses, or Lender Group Expenses were first incurred, or (y) the date on which demand therefor is made by Agent
(it being acknowledged and agreed that any charging of such costs, expenses or Lender Group Expenses to the Loan Account pursuant to
the provisions of the following sentence shall be deemed to constitute a demand for payment thereof for the purposes of this subclause
(y)). Borrowers hereby authorize Agent, from time to time without prior notice to Borrowers, to charge to the Loan Account (A) on the
first day of each month, all interest accrued during the prior month on the Revolving Loans hereunder, (B) on the first Business Day
of each month, all Letter of Credit Fees accrued or chargeable hereunder during the prior month, (C) as and when incurred or accrued,
all fees and costs provided for in Section 2.10(a) or (c), (D) on the first day of each month, the Unused Line Fee accrued
during the prior month pursuant to Section 2.10(b), (E) as and when due and payable, all other fees payable hereunder or under
any of the other Loan Documents, (F) as and when incurred or accrued, all other Lender Group Expenses, and (G) as and when due and payable
all other payment obligations payable under any Loan Document or any Bank Product Agreement (including any amounts due and payable to
the Bank Product Provider in respect of Bank Products). All amounts (including interest, fees, costs, expenses, Lender Group Expenses,
or other amounts payable hereunder or under any other Loan Document or under any Bank Product Agreement) charged to the Loan Account
shall thereupon constitute Revolving Loans hereunder, shall constitute Obligations hereunder, and shall initially accrue interest at
the rate then applicable to Revolving Loans.


 


(e)
Computation. All interest and fees chargeable under the Loan Documents shall be computed on the basis of a 360 day year, in each
case, for the actual number of days elapsed in the period during which the interest or fees accrue. In the event the Base Rate is changed
from time to time hereafter, the rates of interest hereunder based upon the Base Rate automatically and immediately shall be increased
or decreased by an amount equal to such change in the Base Rate.


 


(f)
Intent to Limit Charges to Maximum Lawful Rate. In no event shall the interest rate or rates payable under this Agreement, plus
any other amounts paid in connection herewith, exceed the highest rate permissible under any law that a court of competent jurisdiction
shall, in a final determination, deem applicable. Borrowers and the Lender Group, in executing and delivering this Agreement, intend
legally to agree upon the rate or rates of interest and manner of payment stated within it; provided, that anything contained
herein to the contrary notwithstanding, if such rate or rates of interest or manner of payment exceeds the maximum allowable under applicable
law, then, ipso facto, as of the date of this Agreement, Borrowers are and shall be liable only for the payment of such maximum
amount as is allowed by law, and payment received from Borrowers in excess of such legal maximum, whenever received, shall be applied
to reduce the principal balance of the Obligations to the extent of such excess.


 


2.7 Crediting
Payments. The receipt of any payment item by Agent shall not be required to be considered a payment on account unless such
payment item is a wire transfer of immediately available funds made to Agent’s Account or unless and until such payment item
is honored when presented for payment. Should any payment item not be honored when presented for payment, then Borrowers shall be
deemed not to have made such payment. Anything to the contrary contained herein notwithstanding, any payment item shall be deemed
received by Agent only if it is received into Agent’s Account on a Business Day on or before 1:30 p.m. If any payment item is
received into Agent’s Account on a non-Business Day or after 1:30 p.m. on a Business Day (unless Agent, in its sole
discretion, elects to credit it on the date received), it shall be deemed to have been received by Agent as of the opening of
business on the immediately following Business Day.


 


2.8
Designated Account. Agent is authorized to make the Revolving Loans, and Issuing Bank is authorized to issue the Letters
of Credit, under this Agreement based upon telephonic or other instructions received from anyone purporting to be an Authorized Person
or, without instructions, if pursuant to Section 2.6(d). Borrowers agree to establish and maintain the Designated Account with
the Designated Account Bank for the purpose of receiving the proceeds of the Revolving Loans requested by Borrowers and made by Agent
or the Lenders hereunder. Unless otherwise agreed by Agent and Borrowers, any Revolving Loan or Swing Loan requested by Borrowers and
made by Agent or the Lenders hereunder shall be made to the Designated Account.


 






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2.9
Maintenance of Loan Account; Statements of Obligations. Agent shall maintain an account on its books in the name of Borrowers
(the “Loan Account”) on which Borrowers will be charged with all Revolving Loans (including Extraordinary Advances
and Swing Loans) made by Agent, Swing Lender, or the Lenders to Borrowers or for Borrowers’ account, the Letters of Credit issued
or arranged by Issuing Bank for Borrowers’ account, and with all other payment Obligations hereunder or under the other Loan Documents,
including, accrued interest, fees and expenses, and Lender Group Expenses. In accordance with Section 2.7, the Loan Account will
be credited with all payments received by Agent from Borrowers or for Borrowers’ account. Agent shall make available to Borrowers
monthly statements regarding the Loan Account, including the principal amount of the Revolving Loans, interest accrued hereunder, fees
accrued or charged hereunder or under the other Loan Documents, and a summary itemization of all charges and expenses constituting Lender
Group Expenses accrued hereunder or under the other Loan Documents, and each such statement, absent manifest error, shall be conclusively
presumed to be correct and accurate and constitute an account stated between Borrowers and the Lender Group unless, within 45 days after
Agent first makes such a statement available to Borrowers, Borrowers shall deliver to Agent written objection thereto describing the
error or errors contained in such statement.


 


2.10
Fees.


 


(a)
Agent Fees. Borrowers shall pay to Agent, as and when due and payable under the terms of the Fee Letter, the fees set forth in
the Fee Letter.


 


(b)
Unused Line Fee. Borrowers shall pay to Agent, for the ratable account of the Revolving Lenders, an unused line fee (the “Unused
Line Fee”) in an amount equal to the Applicable Unused Line Fee Percentage per annum times the result of (i) the aggregate
amount of the Revolver Commitments, less (ii) the Average Revolver Usage during the immediately preceding month (or portion thereof),
which Unused Line Fee shall be due and payable, in arrears, on the first day of each month from and after the Closing Date up to the
first day of the month prior to the date on which the Obligations are paid in full and on the date on which the Obligations are paid
in full.


 


(c)
Field Examination and Other Fees. Borrowers shall pay to Agent, field examination, appraisal, and valuation fees and charges,
as and when incurred or chargeable, as follows (i) the prevailing standard rate established from time to time by Agent as its fee
for field examinations, which fee is currently $1,000 per day per examiner, plus out-of-pocket expenses (including travel,
meals, and lodging), for each field examination of any Borrower or its Subsidiaries performed by or on behalf of Agent, and (ii) the
fees, charges or expenses paid or incurred by Agent if it elects to employ the services of one or more third Persons to appraise the
Collateral, or any portion thereof.


 


2.11
 Letters of Credit.


 


(a)
Subject to the terms and conditions of this Agreement, upon the request of Borrowers made in accordance herewith, and prior to the Maturity
Date, Issuing Bank agrees to issue a requested standby Letter of Credit or a sight commercial Letter of Credit for the account of Borrowers
or, in Agent and Issuing Bank’s sole discretion, to any Account Party so requested by Borrowers. By submitting a request to Issuing
Bank for the issuance of a Letter of Credit, Borrowers shall be deemed to have requested that Issuing Bank issue the requested Letter
of Credit. Each request for the issuance of a Letter of Credit, or the amendment, renewal, or extension of any outstanding Letter of
Credit, shall be (i) irrevocable and made in writing by an Authorized Person, (ii) delivered to Agent and Issuing Bank via telefacsimile
or other electronic method of transmission reasonably acceptable to Agent and Issuing Bank and reasonably in advance of the requested
date of issuance, amendment, renewal, or extension, and (iii) subject to Issuing Bank’s authentication procedures with results
satisfactory to Issuing Bank. Each such request shall be in form and substance reasonably satisfactory to Agent and Issuing Bank and
(i) shall specify (A) the amount of such Letter of Credit, (B) the date of issuance, amendment, renewal, or extension of such Letter
of Credit, (C) the proposed expiration date of such Letter of Credit, (D) the name and address of the beneficiary of the Letter of Credit,
and (E) such other information (including, the conditions to drawing, and, in the case of an amendment, renewal, or extension, identification
of the Letter of Credit to be so amended, renewed, or extended) as shall be necessary to prepare, amend, renew, or extend such Letter
of Credit, and (ii) shall be accompanied by such Issuer Documents as Agent or Issuing Bank may request or require, to the extent that
such requests or requirements are consistent with the Issuer Documents that Issuing Bank generally requests for Letters of Credit in
similar circumstances. Issuing Bank’s records of the content of any such request will be conclusive. Anything contained herein
to the contrary notwithstanding, Issuing Bank may, but shall not be obligated to, issue a Letter of Credit that supports the obligations
of a Loan Party or one of its Subsidiaries in respect of (x) a lease of real property, or (y) an employment contract,


 






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(b)
Issuing Bank shall have no obligation to issue a Letter of Credit if any of the following would result after giving effect to the requested
issuance:


 


(i)
the Letter of Credit Usage would exceed the Letter of Credit Sublimit, or


 


(ii)
the Letter of Credit Usage would exceed the Maximum Revolver Amount less the outstanding amount of Revolving Loans (including Swing Loans),
or


 


(iii)
the Letter of Credit Usage would exceed the Borrowing Base at such time less the outstanding principal balance of the Revolving Loans
(inclusive of Swing Loans) at such time.


 


(c)
In the event there is a Defaulting Lender as of the date of any request for the issuance of a Letter of Credit, Issuing Bank shall
not be required to issue or arrange for such Letter of Credit to the extent (i) the Defaulting Lender’s Letter of Credit
Exposure with respect to such Letter of Credit may not be reallocated pursuant to Section 2.3(g)(ii), or (ii) Issuing Bank
has not otherwise entered into arrangements reasonably satisfactory to it and Borrowers to eliminate Issuing Bank’s risk with
respect to the participation in such Letter of Credit of the Defaulting Lender, which arrangements may include Borrowers cash
collateralizing such Defaulting Lender’s Letter of Credit Exposure in accordance with Section 2.3(g)(ii). Additionally,
Issuing Bank shall have no obligation to issue or extend a Letter of Credit if (A) any order, judgment, or decree of any
Governmental Authority or arbitrator shall, by its terms, purport to enjoin or restrain Issuing Bank from issuing such Letter of
Credit, or any law applicable to Issuing Bank or any request or directive (whether or not having the force of law) from any
Governmental Authority with jurisdiction over Issuing Bank shall prohibit or request that Issuing Bank refrain from the issuance of
letters of credit generally or such Letter of Credit in particular, or (B) the issuance of such Letter of Credit would violate one
or more policies of Issuing Bank applicable to letters of credit generally, or (C) if amounts demanded to be paid under any Letter
of Credit will not or may not be in United States Dollars.


 


(d)
Any Issuing Bank (other than Wells Fargo or any of its Affiliates) shall notify Agent in writing no later than the Business Day prior
to the Business Day on which such Issuing Bank issues any Letter of Credit. In addition, each Issuing Bank (other than Wells Fargo or
any of its Affiliates) shall, on the first Business Day of each week, submit to Agent a report detailing the daily undrawn amount of
each Letter of Credit issued by such Issuing Bank during the prior calendar week. Borrowers and the Lender Group hereby acknowledge and
agree that all Existing Letters of Credit shall constitute Letters of Credit under this Agreement on and after the Closing Date with
the same effect as if such Existing Letters of Credit were issued by Issuing Bank at the request of Borrowers on the Closing Date. Each
Letter of Credit shall be in form and substance reasonably acceptable to Issuing Bank, including the requirement that the amounts payable
thereunder must be payable in Dollars. If Issuing Bank makes a payment under a Letter of Credit, Borrowers shall pay to Agent an amount
equal to the applicable Letter of Credit Disbursement on the Business Day such Letter of Credit Disbursement is made and, in the absence
of such payment, the amount of the Letter of Credit Disbursement immediately and automatically shall be deemed to be a Revolving Loan
hereunder (notwithstanding any failure to satisfy any condition precedent set forth in Section 3) and, initially, shall bear interest
at the rate then applicable to Revolving Loans. If a Letter of Credit Disbursement is deemed to be a Revolving Loan hereunder, Borrowers’
obligation to pay the amount of such Letter of Credit Disbursement to Issuing Bank shall be automatically converted into an obligation
to pay the resulting Revolving Loan. Promptly following receipt by Agent of any payment from Borrowers pursuant to this paragraph, Agent
shall distribute such payment to Issuing Bank or, to the extent that Revolving Lenders have made payments pursuant to Section 2.11(e)
to reimburse Issuing Bank, then to such Revolving Lenders and Issuing Bank as their interests may appear.


 


(e)
Promptly following receipt of a notice of a Letter of Credit Disbursement pursuant to Section 2.11(d), each Revolving Lender
agrees to fund its Pro Rata Share of any Revolving Loan deemed made pursuant to Section 2.11(d) on the same terms and
conditions as if Borrowers had requested the amount thereof as a Revolving Loan and Agent shall promptly pay to Issuing Bank the
amounts so received by it from the Revolving Lenders. By the issuance of a Letter of Credit (or an amendment, renewal, or extension
of a Letter of Credit) and without any further action on the part of Issuing Bank or the Revolving Lenders, Issuing Bank shall be
deemed to have granted to each Revolving Lender, and each Revolving Lender shall be deemed to have purchased, a participation in
each Letter of Credit issued by Issuing Bank, in an amount equal to its Pro Rata Share of such Letter of Credit, and each such
Revolving Lender agrees to pay to Agent, for the account of Issuing Bank, such Revolving Lender’s Pro Rata Share of any Letter
of Credit Disbursement made by Issuing Bank under the applicable Letter of Credit. In consideration and in furtherance of the
foregoing, each Revolving Lender hereby absolutely and unconditionally agrees to pay to Agent, for the account of Issuing Bank, such
Revolving Lender’s Pro Rata Share of each Letter of Credit Disbursement made by Issuing Bank and not reimbursed by Borrowers
on the date due as provided in Section 2.11(d), or of any reimbursement payment that is required to be refunded (or that
Agent or Issuing Bank elects, based upon the advice of counsel, to refund) to Borrowers for any reason. Each Revolving Lender
acknowledges and agrees that its obligation to deliver to Agent, for the account of Issuing Bank, an amount equal to its respective
Pro Rata Share of each Letter of Credit Disbursement pursuant to this Section 2.11(e) shall be absolute and unconditional and
such remittance shall be made notwithstanding the occurrence or continuation of an Event of Default or Default or the failure to
satisfy any condition set forth in Section 3. If any such Revolving Lender fails to make available to Agent the amount of
such Revolving Lender’s Pro Rata Share of a Letter of Credit Disbursement as provided in this Section, such Revolving Lender
shall be deemed to be a Defaulting Lender and Agent (for the account of Issuing Bank) shall be entitled to recover such amount on
demand from such Revolving Lender together with interest thereon at the Defaulting Lender Rate until paid in full.


 






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(f)
Each Borrower agrees to indemnify, defend and hold harmless each member of the Lender Group (including Issuing Bank and its branches,
Affiliates, and correspondents) and each such Person’s respective directors, officers, employees, attorneys and agents (each, including
Issuing Bank, a “Letter of Credit Related Person”) (to the fullest extent permitted by law) from and against any and
all claims, demands, suits, actions, investigations, proceedings, liabilities, fines, costs, penalties, and damages, and all reasonable
fees and disbursements of attorneys, experts, or consultants and all other costs and expenses actually incurred in connection therewith
or in connection with the enforcement of this indemnification (as and when they are incurred and irrespective of whether suit is brought),
which may be incurred by or awarded against any such Letter of Credit Related Person (other than Taxes, which shall be governed by Section
16) (the “Letter of Credit Indemnified Costs”), and which arise out of or in connection with, or as a result of:


 


(i)
any Letter of Credit or any pre-advice of its issuance;


 


(ii)
any transfer, sale, delivery, surrender or endorsement (or lack thereof) of any Drawing Document at any time(s) held by any such Letter
of Credit Related Person in connection with any Letter of Credit;


 


(iii)
any action or proceeding arising out of, or in connection with, any Letter of Credit (whether administrative, judicial or in connection
with arbitration), including any action or proceeding to compel or restrain any presentation or payment under any Letter of Credit, or
for the wrongful dishonor of, or honoring a presentation under, any Letter of Credit;


 


(iv)
any independent undertakings issued by the beneficiary of any Letter of Credit;


 


(v)
any unauthorized instruction or request made to Issuing Bank in connection with any Letter of Credit or requested Letter of Credit, or
any error, omission, interruption or delay in such instruction or request, whether transmitted by mail, courier, electronic transmission,
SWIFT, or any other telecommunication including communications through a correspondent;


 


(vi)
an adviser, confirmer or other nominated person seeking to be reimbursed, indemnified or compensated;


 


(vii)
any third party seeking to enforce the rights of an applicant, beneficiary, nominated person, transferee, assignee of Letter of Credit
proceeds or holder of an instrument or document;


 


(viii)
the fraud, forgery or illegal action of parties other than the Letter of Credit Related Person;


 


(ix)
any prohibition on payment or delay in payment of any amount payable by Issuing Bank to a beneficiary or transferee beneficiary of a
Letter of Credit arising out of Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions;


 


(x)
Issuing Bank’s performance of the obligations of a confirming institution or entity that wrongfully dishonors a confirmation;


 


(xi)
 any foreign language translation provided to Issuing Bank in connection with any Letter of Credit;


 


(xii)
any foreign law or usage as it relates to Issuing Bank’s issuance of a Letter of Credit in support of a foreign guaranty including
without limitation the expiration of such guaranty after the related Letter of Credit expiration date and any resulting drawing paid
by Issuing Bank in connection therewith; or


 


(xiii)
the acts or omissions, whether rightful or wrongful, of any present or future de jure or de facto governmental or regulatory
authority or cause or event beyond the control of the Letter of Credit Related Person; provided, that such indemnity shall
not be available to any Letter of Credit Related Person claiming indemnification under clauses (i) through (x) above to the extent
that such Letter of Credit Indemnified Costs may be finally determined in a final, non-appealable judgment of a court of competent
jurisdiction to have resulted directly from the gross negligence or willful misconduct of the Letter of Credit Related Person
claiming indemnity. Borrowers hereby agree to pay the Letter of Credit Related Person claiming indemnity on demand from time to time
all amounts owing under this Section 2.11(f). If and to the extent that the obligations of Borrowers under this Section
2.11(f) are unenforceable for any reason, Borrowers agree to make the maximum contribution to the Letter of Credit Indemnified
Costs permissible under applicable law. This indemnification provision shall survive termination of this Agreement and all Letters
of Credit.


 






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(g)
The liability of Issuing Bank (or any other Letter of Credit Related Person) under, in connection with or arising out of any Letter of
Credit (or pre-advice), regardless of the form or legal grounds of the action or proceeding, shall be limited to direct damages suffered
by Borrowers that are caused directly by Issuing Bank’s gross negligence or willful misconduct in (i) honoring a presentation under
a Letter of Credit that on its face does not at least substantially comply with the terms and conditions of such Letter of Credit, (ii)
failing to honor a presentation under a Letter of Credit that strictly complies with the terms and conditions of such Letter of Credit,
or (iii) retaining Drawing Documents presented under a Letter of Credit. Borrowers’ aggregate remedies against Issuing Bank and
any Letter of Credit Related Person for wrongfully honoring a presentation under any Letter of Credit or wrongfully retaining honored
Drawing Documents shall in no event exceed the aggregate amount paid by Borrowers to Issuing Bank in respect of the honored presentation
in connection with such Letter of Credit under Section 2.11(d), plus interest at the rate then applicable to Revolving
Loans hereunder. Borrowers shall take action to avoid and mitigate the amount of any damages claimed against Issuing Bank or any other
Letter of Credit Related Person, including by enforcing its rights against the beneficiaries of the Letters of Credit. Any claim by Borrowers
under or in connection with any Letter of Credit shall be reduced by an amount equal to the sum of (x) the amount (if any) saved by Borrowers
as a result of the breach or alleged wrongful conduct complained of, and (y) the amount (if any) of the loss that would have been avoided
had Borrowers taken all reasonable steps to mitigate any loss, and in case of a claim of wrongful dishonor, by specifically and timely
authorizing Issuing Bank to effect a cure.


 


(h)
Borrowers are responsible for the final text of the Letter of Credit as issued by Issuing Bank, irrespective of any assistance
Issuing Bank may provide such as drafting or recommending text or by Issuing Bank’s use or refusal to use text submitted by
Borrowers. Borrowers understand that the final form of any Letter of Credit may be subject to such revisions and changes as are
deemed necessary or appropriate by Issuing Bank, and Borrowers hereby consent to such revisions and changes not materially different
from the application executed in connection therewith. Borrowers are solely responsible for the suitability of the Letter of Credit
for Borrowers’ purposes. If Borrowers request Issuing Bank to issue a Letter of Credit for an affiliated or unaffiliated third
party (an “Account Party”), (i) such Account Party shall have no rights against Issuing Bank; (ii) Borrowers
shall be responsible for the application and obligations under this Agreement; and (iii) communications (including notices) related
to the respective Letter of Credit shall be among Issuing Bank and Borrowers. Borrowers will examine the copy of the Letter of
Credit and any other documents sent by Issuing Bank in connection therewith and shall promptly notify Issuing Bank (not later than
three (3) Business Days following Borrowers’ receipt of documents from Issuing Bank) of any non-compliance with
Borrowers’ instructions and of any discrepancy in any document under any presentment or other irregularity. Borrowers
understand and agree that Issuing Bank is not required to extend the expiration date of any Letter of Credit for any reason. With
respect to any Letter of Credit containing an “automatic amendment” to extend the expiration date of such Letter of
Credit, Issuing Bank, in its sole and absolute discretion, may give notice of nonrenewal of such Letter of Credit and, if Borrowers
do not at any time want the then current expiration date of such Letter of Credit to be extended, Borrowers will so notify Agent and
Issuing Bank at least 30 calendar days before Issuing Bank is required to notify the beneficiary of such Letter of Credit or any
advising bank of such non-extension pursuant to the terms of such Letter of Credit.


 


(i)
Borrowers’ reimbursement and payment obligations under this Section 2.11 are absolute, unconditional and irrevocable and shall
be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever, including:


 


(i)
any lack of validity, enforceability or legal effect of any Letter of Credit, any Issuer Document, this Agreement, or any Loan Document,
or any term or provision therein or herein;


 


(ii)
payment against presentation of any draft, demand or claim for payment under any Drawing Document that does not comply in whole or in
part with the terms of the applicable Letter of Credit or which proves to be fraudulent, forged or invalid in any respect or any statement
therein being untrue or inaccurate in any respect, or which is signed, issued or presented by a Person or a transferee of such Person
purporting to be a successor or transferee of the beneficiary of such Letter of Credit;


 


(iii)
Issuing Bank or any of its branches or Affiliates being the beneficiary of any Letter of Credit;


 


(iv)
Issuing Bank or any correspondent honoring a drawing against a Drawing Document up to the amount available under any Letter of Credit
even if such Drawing Document claims an amount in excess of the amount available under the Letter of Credit;


 






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(v)
the existence of any claim, set-off, defense or other right that any Loan Party or any of its Subsidiaries may have at any time against
any beneficiary or transferee beneficiary, any assignee of proceeds, Issuing Bank or any other Person;


 


(vi)
Issuing Bank or any correspondent honoring a drawing upon receipt of an electronic presentation under a Letter of Credit requiring the
same, regardless of whether the original Drawing Documents arrive at Issuing Bank’s counters or are different from the electronic
presentation;


 


(vii)
any other event, circumstance or conduct whatsoever, whether or not similar to any of the foregoing that might, but for this Section
2.11(i), constitute a legal or equitable defense to or discharge of, or provide a right of set-off against, any Borrower’s
or any of its Subsidiaries’ reimbursement and other payment obligations and liabilities, arising under, or in connection with,
any Letter of Credit, whether against Issuing Bank, the beneficiary or any other Person; or


 


(viii) the fact that any
Default or Event of Default shall have occurred and be continuing;


 


provided, that subject to Section 2.11(g)
above, the foregoing shall not release Issuing Bank from such liability to Borrowers as may be finally determined in a final, non-appealable
judgment of a court of competent jurisdiction against Issuing Bank following reimbursement or payment of the obligations and liabilities,
including reimbursement and other payment obligations, of Borrowers to Issuing Bank arising under, or in connection with, this Section
2.11 or any Letter of Credit.


 


(j) Without
limiting any other provision of this Agreement, Issuing Bank and each other Letter of Credit Related Person (if applicable) shall not
be responsible to Borrowers for, and Issuing Bank’s rights and remedies against Borrowers and the obligation of Borrowers to reimburse
Issuing Bank for each drawing under each Letter of Credit shall not be impaired by:


 


(i) honor
of a presentation under any Letter of Credit that on its face substantially complies with the terms and conditions of such Letter of Credit,
even if the Letter of Credit requires strict compliance by the beneficiary;


 


(ii) honor
of a presentation of any Drawing Document that appears on its face to have been signed, presented or issued (A) by any purported successor
or transferee of any beneficiary or other Person required to sign, present or issue such Drawing Document or (B) under a new name of the
beneficiary;


 


(iii) acceptance
as a draft of any written or electronic demand or request for payment under a Letter of Credit, even if nonnegotiable or not in the form
of a draft or notwithstanding any requirement that such draft, demand or request bear any or adequate reference to the Letter of Credit;


 


(iv) the
identity or authority of any presenter or signer of any Drawing Document or the form, accuracy, genuineness or legal effect of any Drawing
Document (other than Issuing Bank’s determination that such Drawing Document appears on its face substantially to comply with the
terms and conditions of the Letter of Credit);


 


(v) acting
upon any instruction or request relative to a Letter of Credit or requested Letter of Credit that Issuing Bank in good faith believes
to have been given by a Person authorized to give such instruction or request;


 


(vi) any
errors, omissions, interruptions or delays in transmission or delivery of any message, advice or document (regardless of how sent or transmitted)
or for errors in interpretation of technical terms or in translation or any delay in giving or failing to give notice to any Borrower;


 


(vii) any
acts, omissions or fraud by, or the insolvency of, any beneficiary, any nominated person or entity or any other Person or any breach of
contract between any beneficiary and any Borrower or any of the parties to the underlying transaction to which the Letter of Credit relates;


 






    50


     


    

 


(viii) assertion
or waiver of any provision of the ISP or UCP that primarily benefits an issuer of a letter of credit, including any requirement that any
Drawing Document be presented to it at a particular hour or place;


 


(ix) payment
to any presenting bank (designated or permitted by the terms of the applicable Letter of Credit) claiming that it rightfully honored or
is entitled to reimbursement or indemnity under Standard Letter of Credit Practice applicable to it;


 


(x) acting
or failing to act as required or permitted under Standard Letter of Credit Practice applicable to where Issuing Bank has issued, confirmed,
advised or negotiated such Letter of Credit, as the case may be;


 


(xi) honor
of a presentation after the expiration date of any Letter of Credit notwithstanding that a presentation was made prior to such expiration
date and dishonored by Issuing Bank if subsequently Issuing Bank or any court or other finder of fact determines such presentation should
have been honored;


 


(xii) dishonor
of any presentation that does not strictly comply or that is fraudulent, forged or otherwise not entitled to honor; or


 


(xiii) honor
of a presentation that is subsequently determined by Issuing Bank to have been made in violation of international, federal, state or local
restrictions on the transaction of business with certain prohibited Persons.


 


(k) Borrowers
shall pay immediately upon demand to Agent for the account of Issuing Bank as non-refundable fees, commissions, and charges (it being
acknowledged and agreed that any charging of such fees, commissions, and charges to the Loan Account pursuant to the provisions of Section
2.6(d) shall be deemed to constitute a demand for payment thereof for the purposes of this Section 2.11(k)): (i) a fronting
fee which shall be imposed by Issuing Bank equal to 0.25% per annum times the average amount of the Letter of Credit Usage during the
immediately preceding month, plus (ii) any and all other customary commissions, fees and charges then in effect imposed by, and any and
all expenses incurred by, Issuing Bank, or by any adviser, confirming institution or entity or other nominated person, relating to Letters
of Credit, at the time of issuance of any Letter of Credit and upon the occurrence of any other activity with respect to any Letter of
Credit (including transfers, assignments of proceeds, amendments, drawings, renewals or cancellations).


 


(l) If
by reason of (x) any Change in Law, or (y) compliance by Issuing Bank or any other member of the Lender Group with any direction, request,
or requirement (irrespective of whether having the force of law) of any Governmental Authority or monetary authority including, Regulation
D of the Board of Governors as from time to time in effect (and any successor thereto):


 


(i) any
reserve, deposit, or similar requirement is or shall be imposed or modified in respect of any Letter of Credit issued or caused to be
issued hereunder or hereby, or any Loans or obligations to make Loans hereunder or hereby, or


 


(ii) there shall be
imposed on Issuing Bank or any other member of the Lender Group any other condition regarding any Letter of Credit, Loans, or
obligations to make Loans hereunder, and the result of the foregoing is to increase, directly or indirectly, the cost to Issuing
Bank or any other member of the Lender Group of issuing, making, participating in, or maintaining any Letter of Credit or to reduce
the amount receivable in respect thereof, then, and in any such case, Agent may, at any time within a reasonable period after the
additional cost is incurred or the amount received is reduced, notify Borrowers, and Borrowers shall pay within 30 days after demand
therefor, such amounts as Agent may specify to be necessary to compensate Issuing Bank or any other member of the Lender Group for
such additional cost or reduced receipt, together with interest on such amount from the date of such demand until payment in full
thereof at the rate then applicable to Revolving Loans hereunder; provided, that (A) Borrowers shall not be required to
provide any compensation pursuant to this Section 2.11(l) for any such amounts incurred more than 180 days prior to the date
on which the demand for payment of such amounts is first made to Borrowers, and (B) if an event or circumstance giving rise to such
amounts is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect
thereof. The determination by Agent of any amount due pursuant to this Section 2.11(l), as set forth in a certificate setting
forth the calculation thereof in reasonable detail, shall, in the absence of manifest or demonstrable error, be final and conclusive
and binding on all of the parties hereto.


 






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(m) Each
standby Letter of Credit shall expire not later than the date that is 12 months after the date of the issuance of such Letter of Credit;
provided, that any standby Letter of Credit may provide for the automatic extension thereof for any number of additional periods each
of up to one year in duration; provided further, that with respect to any Letter of Credit which extends beyond the Maturity Date,
Letter of Credit Collateralization shall be provided therefor on or before the date that is five Business Days prior to the Maturity Date.
Each commercial Letter of Credit shall expire on the earlier of (i) 120 days after the date of the issuance of such commercial Letter
of Credit and (ii) five Business Days prior to the Maturity Date.


 


(n) If
(i) any Event of Default shall occur and be continuing, or (ii) Availability shall at any time be less than zero, then on the Business
Day following the date when the Administrative Borrower receives notice from Agent or the Required Lenders (or, if the maturity of the
Obligations has been accelerated, Revolving Lenders with Letter of Credit Exposure representing greater than 50% of the total Letter Credit
Exposure) demanding Letter of Credit Collateralization pursuant to this Section 2.11(n) upon such demand, Borrowers shall provide
Letter of Credit Collateralization with respect to the then existing Letter of Credit Usage. If Borrowers fail to provide Letter of Credit
Collateralization as required by this Section 2.11(n), the Revolving Lenders may (and, upon direction of Agent, shall) advance,
as Revolving Loans the amount of the cash collateral required pursuant to the Letter of Credit Collateralization provision so that the
then existing Letter of Credit Usage is cash collateralized in accordance with the Letter of Credit Collateralization provision (whether
or not the Revolver Commitments have terminated, an Overadvance exists or the conditions in Section 3 are satisfied).


 


(o) Unless
otherwise expressly agreed by Issuing Bank and Borrowers when a Letter of Credit is issued (including any such agreement applicable to
an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of the UCP shall
apply to each commercial Letter of Credit.


 


(p) Issuing
Bank shall be deemed to have acted with due diligence and reasonable care if Issuing Bank’s conduct is in accordance with Standard
Letter of Credit Practice or in accordance with this Agreement.


 


(q) In
the event of a direct conflict between the provisions of this Section 2.11 and any provision contained in any Issuer Document,
it is the intention of the parties hereto that such provisions be read together and construed, to the fullest extent possible, to be in
concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions
of this Section 2.11 shall control and govern.


 


(r) The
provisions of this Section 2.11 shall survive the termination of this Agreement and the repayment in full of the Obligations with
respect to any Letters of Credit that remain outstanding.


 






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(s) At
Borrowers’ costs and expense, Borrowers shall execute and deliver to Issuing Bank such additional certificates, instruments and/or
documents and take such additional action as may be reasonably requested by Issuing Bank to enable Issuing Bank to issue any Letter of
Credit pursuant to this Agreement and related Issuer Document, to protect, exercise and/or enforce Issuing Banks’ rights and interests
under this Agreement or to give effect to the terms and provisions of this Agreement or any Issuer Document. Each Borrower irrevocably
appoints Issuing Bank as its attorney-in-fact and authorizes Issuing Bank, without notice to Borrowers, to execute and deliver ancillary
documents and letters customary in the letter of credit business that may include but are not limited to advisements, indemnities, checks,
bills of exchange and issuance documents. The power of attorney granted by the Borrowers is limited solely to such actions related to
the issuance, confirmation or amendment of any Letter of Credit and to ancillary documents or letters customary in the letter of credit
business. This appointment is coupled with an interest.


 


2.12 Special
Provisions Applicable to Adjusted Daily Simple SOFR.


 


(a) The
Adjusted Daily Simple SOFR may be adjusted by Agent with respect to any Lender on a prospective basis to take into account any additional
or increased costs to such Lender of maintaining or increased costs (other than Taxes which shall be governed by Section 16), in each
case, due to changes in applicable law, including any Changes in Law and changes in the reserve requirements imposed by the Board of Governors,
or similar requirements imposed by any domestic or foreign governmental authority or resulting from compliance by Lender with any request
or directive (whether or not having the force of law) from any central bank or other Governmental Authority and related in any manner
to SOFR or Adjusted Daily Simple SOFR, which additional or increased costs would increase the cost of funding or maintaining loans bearing
interest at the Adjusted Daily Simple SOFR. In any such event, the affected Lender shall give Borrowers and Agent notice of such a determination
and adjustment and Agent promptly shall transmit the notice to each other Lender and, upon its receipt of the notice from the affected
Lender, Borrowers may, by notice to such affected Lender, require such Lender to furnish to Borrowers a statement setting forth in reasonable
detail the basis for adjusting such Adjusted Daily Simple SOFR and the method for determining the amount of such adjustment.


 


(b) Notwithstanding
anything to the contrary contained herein, subject to the occurrence of a Benchmark Transition Event or an Early Opt-in Election, as such
terms are defined in Schedule 2.12, in the event that (i) any change in market conditions or any Change in Law shall at any time after
the date hereof, in the reasonable opinion of any Lender, make it unlawful or impractical for such Lender to fund or maintain Loans at
the Adjusted Daily Simple SOFR, or to continue such funding or maintaining, or to determine or charge interest rates at the Adjusted Daily
Simple SOFR, or (ii) any Lender determines that the interest rate hereunder based on the Adjusted Daily Simple SOFR will not adequately
and fairly reflect the cost to such Lender of maintaining or funding any Loans based upon Adjusted Daily Simple SOFR, then, in either
case, (x) such Lender shall give notice of such changed circumstances to Agent and Borrower, and Agent promptly shall transmit the notice
to each other Lender, (y) such Loans of such Lender shall thereafter bear interest at a per annum rate equal to the Base Rate plus the
Applicable Margin and (z) interest based on the Adjusted Daily Simple SOFR shall not be available for Loans of such Lender until such
Lender determines that interest based on such rate is again available.


 


(c) Anything
to the contrary contained herein notwithstanding, neither Agent, nor any Lender, nor any of their Participants, is required actually to
match fund any Obligation as to which interest accrues at the Adjusted Daily Simple SOFR.


 






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2.13 Capital
Requirements.


 


(a) If,
after the date hereof, Issuing Bank or any Lender determines that (i) any Change in Law regarding capital, liquidity or reserve requirements
for banks or bank holding companies, or (ii) compliance by Issuing Bank or such Lender, or their respective parent bank holding companies,
with any guideline, request or directive of any Governmental Authority regarding capital adequacy or liquidity requirements (whether or
not having the force of law), has the effect of reducing the return on Issuing Bank’s, such Lender’s, or such holding companies’
capital or liquidity as a consequence of Issuing Bank’s or such Lender’s commitments, Loans, participations or other obligations
hereunder to a level below that which Issuing Bank, such Lender, or such holding companies could have achieved but for such Change in
Law or compliance (taking into consideration Issuing Bank’s, such Lender’s, or such holding companies’ then existing
policies with respect to capital adequacy or liquidity requirements and assuming the full utilization of such entity’s capital)
by any amount deemed by Issuing Bank or such Lender to be material, then Issuing Bank or such Lender may notify Borrowers and Agent thereof.
Following receipt of such notice, Borrowers agree to pay Issuing Bank or such Lender on demand the amount of such reduction of return
of capital as and when such reduction is determined, payable within 30 days after presentation by Issuing Bank or such Lender of a statement
in the amount and setting forth in reasonable detail Issuing Bank’s or such Lender’s calculation thereof and the assumptions
upon which such calculation was based (which statement shall be deemed true and correct absent manifest error). In determining such amount,
Issuing Bank or such Lender may use any reasonable averaging and attribution methods. Failure or delay on the part of Issuing Bank or
any Lender to demand compensation pursuant to this Section shall not constitute a waiver of Issuing Bank’s or such Lender’s
right to demand such compensation; provided, that Borrowers shall not be required to compensate Issuing Bank or a Lender pursuant
to this Section for any reductions in return incurred more than 180 days prior to the date that Issuing Bank or such Lender notifies Borrowers
of such Change in Law giving rise to such reductions and of such Lender’s intention to claim compensation therefor; provided
further, that if such claim arises by reason of the Change in Law that is retroactive, then the 180-day period referred to above shall
be extended to include the period of retroactive effect thereof.


 


(b) If
Issuing Bank or any Lender requests additional or increased costs referred to in Section 2.11(l) or Section 2.12 or amounts
under Section 2.13(a) or sends a notice under Section 2.12 relative to changed circumstances (such Issuing Bank or Lender,
an “Affected Lender”), then, at the request of Administrative Borrower, such Affected Lender shall use reasonable efforts
to promptly designate a different one of its lending offices or to assign its rights and obligations hereunder to another of its offices
or branches, if (i) in the reasonable judgment of such Affected Lender, such designation or assignment would eliminate or reduce amounts
payable pursuant to Section 2.11(l), Section 2.12(d)(i) or Section 2.13(a), as applicable, or would eliminate the
illegality or impracticality of funding or maintaining Loan at the Adjusted Daily Simple SOFR, and (ii) in the reasonable judgment of
such Affected Lender, such designation or assignment would not subject it to any material unreimbursed cost or expense and would not otherwise
be materially disadvantageous to it. Borrowers agree to pay all reasonable out-of-pocket costs and expenses incurred by such Affected
Lender in connection with any such designation or assignment. If, after such reasonable efforts, such Affected Lender does not so designate
a different one of its lending offices or assign its rights to another of its offices or branches so as to eliminate Borrowers’
obligation to pay any future amounts to such Affected Lender pursuant to Section 2.11(l), Section 2.12 or Section 2.13(a),
as applicable, or to enable Borrowers to obtain Loans based on the Adjusted Daily Simple SOFR, then Borrowers (without prejudice to any
amounts then due to such Affected Lender under Section 2.11(l), Section 2.12 or Section 2.13(a), as applicable) may,
unless prior to the effective date of any such assignment the Affected Lender withdraws its request for such additional amounts under
Section 2.11(l), Section 2.12 or Section 2.13(a), as applicable, or indicates that it is no longer unlawful or impractical
to fund or maintain Loans at the Adjusted Daily Simple SOFR, may designate a different Issuing Bank or substitute a Lender or prospective
Lender, in each case, reasonably acceptable to Agent to purchase the Obligations owed to such Affected Lender and such Affected Lender’s
commitments hereunder (a “Replacement Lender”), and if such Replacement Lender agrees to such purchase, such Affected
Lender shall assign to the Replacement Lender its Obligations and commitments, and upon such purchase by the Replacement Lender, which
such Replacement Lender shall be deemed to be “Issuing Bank” or a “Lender” (as the case may be) for purposes of
this Agreement and such Affected Lender shall cease to be “Issuing Bank” or a “Lender” (as the case may be) for
purposes of this Agreement.


 






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(c) Notwithstanding
anything herein to the contrary, the protection of Sections 2.11(l), 2.12, and 2.13 shall be available to Issuing
Bank and each Lender (as applicable) regardless of any possible contention of the invalidity or inapplicability of the law, rule, regulation,
judicial ruling, judgment, guideline, treaty or other change or condition which shall have occurred or been imposed, so long as it shall
be customary for issuing banks or lenders affected thereby to comply therewith. Notwithstanding any other provision herein, neither Issuing
Bank nor any Lender shall demand compensation pursuant to this Section 2.13 if it shall not at the time be the general policy or practice
of Issuing Bank or such Lender (as the case may be) to demand such compensation in similar circumstances under comparable provisions of
other credit agreements, if any.


 


2.14 Incremental
Facility.


 


(a) Administrative
Borrower may, at any time, deliver a written request to Agent to increase the Maximum Revolver Amount. Any such written request shall
specify the amount of the increase in the Maximum Revolver Amount (each such increase, an “Increase”) that Borrowers
are requesting, provided, that, (i) that in no event shall the Revolver Commitments and the Maximum Revolver Amount be increased
by an amount in excess of the $50,000,000, (ii) each such request for an Increase shall be in an amount of at least $25,000,000 (or such
lower amount that Agent may agree to) and integral multiples of $5,000,000 (or such lower amount that Agent may agree to) in excess thereof,
(iii) in no event shall there be more than two (2) such Increases in any calendar year, and (iv) as of the date of such request, and the
Increase Effective Date, no Default or Event of Default shall exist or have occurred and be continuing.


 


(b) Upon
the receipt by Agent of any such written request, Agent shall notify each of the Lenders of such request and each Lender shall have the
option (but not the obligation) to increase the amount of its Commitment by an amount up to its Pro Rata Share of the amount of the increase
thereof requested by Administrative Borrower as set forth in the notice from Agent to such Lender. Each Lender shall notify Agent within
ten (10) Business Days after the receipt of such notice from Agent whether it is willing to so increase its Commitment, and if so, the
amount of such increase; provided, that, no Lender shall be obligated to provide such increase in its Commitment and the
determination to increase the Commitment of a Lender shall be within the sole and absolute discretion of such Lender. If the aggregate
amount of the increases in the Commitments received from the Lenders does not equal or exceed the amount of the increase in the Maximum
Revolver Amount requested by Administrative Borrower, Agent may seek additional increases from Lenders or Commitments from such Eligible
Transferees as it may determine, after consultation with Administrative Borrower. In the event Lenders (or Lenders and any such Eligible
Transferees, as the case may be) have committed in writing to provide increases in their Commitments or new Commitments in an aggregate
amount in excess of the increase in the Maximum Revolver Amount requested by Borrowers or permitted hereunder, Agent shall then have the
right to allocate such commitments, first to Lenders and then to Eligible Transferees, in such amounts and manner as Agent may determine,
after consultation with Administrative Borrower.


 






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(c) Each
of the following shall be conditions precedent to any Increase of a Commitment and the Maximum Revolver Amount in connection therewith:


 


(i) Agent
or Borrowers have obtained the commitment of one or more Lenders (or other prospective lenders) reasonably satisfactory to Agent and Borrowers
to provide the applicable Increase and any such Lenders (or prospective lenders), Borrowers, and Agent have signed a joinder agreement
to this Agreement (an “Increase Joinder”), in form and substance reasonably satisfactory to Agent, to which such Lenders
(or prospective lenders), Borrowers, and Agent are party,


 


(ii) each
of the conditions precedent set forth in Section 3.2 are satisfied,


 


(iii) in
connection with any Increase, if any Borrower or any of its Subsidiaries owns or will acquire any Margin Stock, Borrowers shall deliver
to Agent an updated Form U-1 (with sufficient additional originals thereof for each Lender), duly executed and delivered by the Borrowers,
together with such other documentation as Agent shall reasonably request, in order to enable Agent and the Lenders to comply with any
of the requirements under Regulations T, U or X of the Federal Reserve Board,


 


(iv) Borrowers
have delivered to Agent updated pro forma Projections (after giving effect to the applicable Increase) for the Borrowers and their Subsidiaries
evidencing compliance on a pro forma basis with Section 7 for the twelve (12) months (on a month-by-month basis) immediately following
the proposed date of the applicable Increase (calculated as if testing of the covenant in such Section 7 was in effect during the
entire twelve (12) month period), and


 


(v) Borrowers
shall have reached agreement with the Lenders (or prospective lenders) agreeing to the increased Commitment with respect to the interest
margins applicable to Revolving Loans to be made pursuant to the increased Commitment (which interest margins may be with respect to Revolving
Loans made pursuant to the increased Commitment, higher than, lower than or equal to the interest margins applicable to Revolving Loans
set forth in this Agreement immediately prior to the date of the increased Commitment (the date of the effectiveness of the increased
Commitment and the Maximum Revolver Amount, the “Increase Date”)) and shall have communicated the amount of such interest
margins to Agent. Any Increase Joinder may, with the consent of Agent, Borrowers and only the Lenders or prospective lenders agreeing
to the proposed Increase, effect such amendments to this Agreement and the other Loan Documents as may be necessary to effectuate the
provisions of this Section 2.14 (including any amendment necessary to effectuate the interest margins for the Revolving Loans to
be made pursuant to the increased Commitment. Anything to the contrary contained herein notwithstanding, in the event that there is more
than one Lender (excluding other Issuing Banks in such capacities for this purpose) on any Increase Date, if the all-in yield (including
interest margins, interest floors, and any original issue discount or similar yield-related discounts or payments, but excluding any arrangement,
underwriting, or similar fees payable in connection therewith that are not paid to all Lenders providing the Increase to the Commitment
that is to be applicable to the Revolving Loans to be made pursuant to the increased Commitment is higher than the all-in yield (including
interest margins, interest floors, and any original issue discount or similar yield-related discounts or payments, but excluding any arrangement,
underwriting, or similar fees payable in connection therewith that are not paid to all Lenders providing the Increase to the Commitment
applicable to the Revolving Loans hereunder (as applicable) immediately prior to the applicable Increase Date (the amount by which all-in
yield is higher, the “Excess”), then the interest margin applicable to the Revolving Loans immediately prior to the
Increase Date shall be increased by the amount of the Excess, effective on the applicable Increase Date, and without the necessity of
any action by any party hereto.


 


(d) Unless
otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Revolving Loans shall be deemed,
unless the context otherwise requires, to include Revolving Loans made pursuant to the increased Commitment and Maximum Revolver Amount
pursuant to this Section 2.14.


 






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(e) Each
of the Lenders having a Commitment prior to the Increase Date (the “Pre-Increase Lenders”) shall assign to any Lender
which is acquiring a new or additional Commitment on the Increase Date (the “Post-Increase Lenders”), and such Post-Increase
Lenders shall purchase from each Pre-Increase Lender, at the principal amount thereof, such interests in the Revolving Loans and participation
interests in Letters of Credit on such Increase Date as shall be necessary in order that, after giving effect to all such assignments
and purchases, such Revolving Loans and participation interests in Letters of Credit will be held by Pre-Increase Lenders and Post-Increase
Lenders ratably in accordance with their Pro Rata Share after giving effect to such increased Commitment.


 


(f) The
Revolving Loans, Commitment, and Maximum Revolver Amount established pursuant to this Section 2.14 shall constitute Revolving Loans,
Commitment, and Maximum Revolver Amount under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan
Documents, and shall, without limiting the foregoing, benefit equally and ratably from any guarantees and the security interests created
by the Loan Documents. Borrowers shall take any actions reasonably required by Agent to ensure and demonstrate that the Liens and security
interests granted by the Loan Documents continue to be perfected under the Code or otherwise after giving effect to the establishment
of any such new Commitment and Maximum Revolver Amount.


 


2.15 Joint
and Several Liability of Borrowers.


 


(a) Each
Borrower is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations
to be provided by the Lender Group under this Agreement, for the mutual benefit, directly and indirectly, of each Borrower and in consideration
of the undertakings of the other Borrowers to accept joint and several liability for the Obligations.


 


(b) Each
Borrower, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint
and several liability with the other Borrowers, with respect to the payment and performance of all of the Obligations (including any Obligations
arising under this Section 2.15), it being the intention of the parties hereto that all the Obligations shall be the joint and
several obligations of each Borrower without preferences or distinction among them. Accordingly, each Borrower hereby waives any and all
suretyship defenses that would otherwise be available to such Borrower under applicable law.


 


(c) If
and to the extent that any Borrower shall fail to make any payment with respect to any of the Obligations as and when due, whether upon
maturity, acceleration, or otherwise, or to perform any of the Obligations in accordance with the terms thereof, then in each such event
the other Borrowers will make such payment with respect to, or perform, such Obligations until such time as all of the Obligations are
paid in full, and without the need for demand, protest, or any other notice or formality.


 


(d) The
Obligations of each Borrower under the provisions of this Section 2.15 constitute the absolute and unconditional, full recourse
Obligations of each Borrower enforceable against each Borrower to the full extent of its properties and assets, irrespective of the validity,
regularity or enforceability of the provisions of this Agreement (other than this Section 2.15(d)) or any other circumstances whatsoever.


 






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(e) Without
limiting the generality of the foregoing and except as otherwise expressly provided in this Agreement, each Borrower hereby waives presentments,
demands for performance, protests and notices, including notices of acceptance of its joint and several liability, notice of any Revolving
Loans, or any Letters of Credit issued under or pursuant to this Agreement, notice of the occurrence of any Default, Event of Default,
notices of nonperformance, notices of protest, notices of dishonor, notices of acceptance of this Agreement, notices of the existence,
creation, or incurring of new or additional Obligations or other financial accommodations or of any demand for any payment under this
Agreement, notice of any action at any time taken or omitted by Agent or Lenders under or in respect of any of the Obligations, any right
to proceed against any other Borrower or any other Person, to proceed against or exhaust any security held from any other Borrower or
any other Person, to protect, secure, perfect, or insure any security interest or Lien on any property subject thereto or exhaust any
right to take any action against any other Borrower, any other Person, or any collateral, to pursue any other remedy in any member of
the Lender Group’s or any Bank Product Provider’s power whatsoever, any requirement of diligence or to mitigate damages and,
generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this
Agreement (except as otherwise provided in this Agreement), any right to assert against any member of the Lender Group or any Bank Product
Provider, any defense (legal or equitable), set-off, counterclaim, or claim which each Borrower may now or at any time hereafter have
against any other Borrower or any other party liable to any member of the Lender Group or any Bank Product Provider, any defense, set-off,
counterclaim, or claim, of any kind or nature, arising directly or indirectly from the present or future lack of perfection, sufficiency,
validity, or enforceability of the Obligations or any security therefor, and any right or defense arising by reason of any claim or defense
based upon an election of remedies by any member of the Lender Group or any Bank Product Provider including any defense based upon an
impairment or elimination of such Borrower’s rights of subrogation, reimbursement, contribution, or indemnity of such Borrower against
any other Borrower. Without limiting the generality of the foregoing, each Borrower hereby assents to, and waives notice of, any extension
or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance
of any partial payment thereon, any waiver, consent or other action or acquiescence by Agent or Lenders at any time or times in respect
of any default by any Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any
and all other indulgences whatsoever by Agent or Lenders in respect of any of the Obligations, and the taking, addition, substitution
or release, in whole or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release,
in whole or in part, of any Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay
in acting or failure to act on the part of any Agent or Lender with respect to the failure by any Borrower to comply with any of its respective
Obligations, including any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable
laws or regulations thereunder, which might, but for the provisions of this Section 2.15 afford grounds for terminating, discharging
or relieving any Borrower, in whole or in part, from any of its Obligations under this Section 2.15, it being the intention of
each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of each Borrower under this Section
2.15 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each Borrower
under this Section 2.15 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation,
reconstruction or similar proceeding with respect to any other Borrower or any Agent or Lender. Each of the Borrowers waives, to the fullest
extent permitted by law, the benefit of any statute of limitations affecting its liability hereunder or the enforcement hereof. Any payment
by any Borrower or other circumstance which operates to toll any statute of limitations as to any Borrower shall operate to toll the statute
of limitations as to each of the Borrowers. Each of the Borrowers waives any defense based on or arising out of any defense of any Borrower
or any other Person, other than payment of the Obligations to the extent of such payment, based on or arising out of the disability of
any Borrower or any other Person, or the validity, legality, or unenforceability of the Obligations or any part thereof from any cause,
or the cessation from any cause of the liability of any Borrower other than payment of the Obligations to the extent of such payment.
Agent may, at the election of the Required Lenders, foreclose upon any Collateral held by Agent by one or more judicial or nonjudicial
sales or other dispositions, whether or not every aspect of any such sale is commercially reasonable or otherwise fails to comply with
applicable law or may exercise any other right or remedy Agent, any other member of the Lender Group, or any Bank Product Provider may
have against any Borrower or any other Person, or any security, in each case, without affecting or impairing in any way the liability
of any of the Borrowers hereunder except to the extent the Obligations have been paid.


 






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(f) Each
Borrower represents and warrants to Agent and Lenders that such Borrower is currently informed of the financial condition of Borrowers
and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. Each
Borrower further represents and warrants to Agent and Lenders that such Borrower has read and understands the terms and conditions of
the Loan Documents. Each Borrower hereby covenants that such Borrower will continue to keep informed of Borrowers’ financial condition
and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Obligations.


 


(g) The
provisions of this Section 2.15 are made for the benefit of Agent, each member of the Lender Group, each Bank Product Provider,
and their respective successors and assigns, and may be enforced by it or them from time to time against any or all Borrowers as often
as occasion therefor may arise and without requirement on the part of Agent, any member of the Lender Group, any Bank Product Provider,
or any of their successors or assigns first to marshal any of its or their claims or to exercise any of its or their rights against any
Borrower or to exhaust any remedies available to it or them against any Borrower or to resort to any other source or means of obtaining
payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.15 shall remain in effect
until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof,
made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by Agent or any Lender upon the insolvency,
bankruptcy or reorganization of any Borrower, or otherwise, the provisions of this Section 2.15 will forthwith be reinstated in
effect, as though such payment had not been made.


 


(h) Each
Borrower hereby agrees that it will not enforce any of its rights that arise from the existence, payment, performance or enforcement of
the provisions of this Section 2.15, including rights of subrogation, reimbursement, exoneration, contribution or indemnification
and any right to participate in any claim or remedy of Agent, any other member of the Lender Group, or any Bank Product Provider against
any Borrower, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including the right
to take or receive from any Borrower, directly or indirectly, in cash or other property or by set-off or in any other manner, payment
or security solely on account of such claim, remedy or right, unless and until such time as all of the Obligations have been paid in full
in cash. Any claim which any Borrower may have against any other Borrower with respect to any payments to any Agent or any member of the
Lender Group hereunder or under any of the Bank Product Agreements are hereby expressly made subordinate and junior in right of payment,
without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in full in cash of the
Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under
the laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations
shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall
be made to any other Borrower therefor. If any amount shall be paid to any Borrower in violation of the immediately preceding sentence,
such amount shall be held in trust for the benefit of Agent, for the benefit of the Lender Group and the Bank Product Provider, and shall
forthwith be paid to Agent to be credited and applied to the Obligations and all other amounts payable under this Agreement, whether matured
or unmatured, in accordance with the terms of this Agreement, or to be held as Collateral for any Obligations or other amounts payable
under this Agreement thereafter arising. Notwithstanding anything to the contrary contained in this Agreement, no Borrower may exercise
any rights of subrogation, contribution, indemnity, reimbursement or other similar rights against, and may not proceed or seek recourse
against or with respect to any property or asset of, any other Borrower (the “Foreclosed Borrower”), including after
payment in full of the Obligations, if all or any portion of the Obligations have been satisfied in connection with an exercise of remedies
in respect of the Equity Interests of such Foreclosed Borrower whether pursuant to this Agreement or otherwise.


 


(i) [Reserved].


 






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3. CONDITIONS;
TERM OF AGREEMENT.


 


3.1 Conditions Precedent
to the Initial Extension of Credit. The obligation of each Lender to make the initial
extensions of credit provided for hereunder as of the Closing Date is subject to the fulfillment, to the satisfaction of Agent and each
Lender, of each of the conditions precedent set forth on Schedule 3.1 to this Agreement (the making of such initial extensions
of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the conditions precedent).


 


3.2 Conditions Precedent
to all Extensions of Credit. The obligation of the Lender Group (or any member thereof)
to make any Revolving Loans hereunder (or to extend any other credit hereunder) at any time shall be subject to the following conditions
precedent:


 


(a) the
representations and warranties of each Loan Party or its Subsidiaries contained in this Agreement or in the other Loan Documents shall
be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and
warranties that already are qualified or modified by materiality in the text thereof) on and as of the date of such extension of credit,
as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date,
in which case such representations and warranties shall be true and correct in all material respects (except that such materiality qualifier
shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof)
as of such earlier date); and


 


(b) no
Default or Event of Default shall have occurred and be continuing on the date of such extension of credit, nor shall either result from
the making thereof.


 


3.3 Maturity.
The Commitments shall continue in full force and effect for a term ending on the Maturity Date (unless terminated earlier in accordance
with the terms hereof).


 


3.4 Effect of Maturity.
On the Maturity Date, all commitments of the Lender Group to provide additional credit hereunder shall automatically be terminated and
all of the Obligations (other than Hedge Obligations) immediately shall become due and payable without notice or demand and Borrowers
shall be required to repay all of the Obligations (other than Hedge Obligations) in full. No termination of the obligations of the Lender
Group (other than payment in full of the Obligations and termination of the Commitments) shall relieve or discharge any Loan Party of
its duties, obligations, or covenants hereunder or under any other Loan Document and Agent’s Liens in the Collateral shall continue
to secure the Obligations and shall remain in effect until all Obligations have been paid in full. When all of the Obligations have been
paid in full, Agent will, at Borrowers’ sole expense, execute and deliver any termination statements, lien releases, discharges
of security interests, and other similar discharge or release documents (and, if applicable, in recordable form) as are reasonably necessary
to release, as of record, Agent’s Liens and all notices of security interests and liens previously filed by Agent.


 


3.5 Early
Termination by Borrowers. Borrowers have the option, at any time upon ten Business Days prior written notice to Agent, to
repay all of the Obligations in full and terminate the Commitments. The foregoing notwithstanding, (a) Borrowers may rescind
termination notices relative to proposed payments in full of the Obligations with the proceeds of third party Indebtedness if the
closing for such issuance or incurrence does not happen on or before the date of the proposed termination (in which case, a new
notice shall be required to be sent in connection with any subsequent termination), and (b) Borrowers may extend the date of
termination at any time with the consent of Agent (which consent shall not be unreasonably withheld or delayed).


 






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4. REPRESENTATIONS
AND WARRANTIES.


 


In order to induce the Lender
Group to enter into this Agreement, Borrower makes the following representations and warranties to the Lender Group which shall be true,
correct, and complete, in all material respects (except that such materiality qualifier shall not be applicable to any representations
and warranties that already are qualified or modified by materiality in the text thereof), as of the Closing Date, and shall be true,
correct, and complete, in all material respects (except that such materiality qualifier shall not be applicable to any representations
and warranties that already are qualified or modified by materiality in the text thereof), as of the date of the making of each Revolving
Loan (or other extension of credit) made thereafter, as though made on and as of the date of such Revolving Loan (or other extension of
credit) (except to the extent that such representations and warranties relate solely to an earlier date, in which case such representations
and warranties shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any
representations and warranties that already are qualified or modified by materiality in the text thereof) as of such earlier date), and
such representations and warranties shall survive the execution and delivery of this Agreement:


 


4.1 Due
Organization and Qualification; Subsidiaries.


 


(a) Each
Loan Party and each of its Subsidiaries and Parent (i) is duly organized and existing and in good standing under the laws of the jurisdiction
of its organization, (ii) is qualified to do business in any state where the failure to be so qualified could reasonably be expected to
result in a Material Adverse Effect, and (iii) has all requisite power and authority to own and operate its properties, to carry on its
business as now conducted and as proposed to be conducted (except, with respect to Parent, where the failure to be so qualified could
not reasonably be expected to result in a Material Adverse Effect), to enter into the Loan Documents to which it is a party and to carry
out the transactions contemplated thereby.


 


(b) Set
forth on Schedule 4.1(b) to this Agreement (as such Schedule may be updated from time to time at the request of Agent) is a complete
and accurate description of the authorized Equity Interests of each Loan Party and of Parent, by class, and, as of the Closing Date, a
description of the number of shares of each such class that are issued and outstanding (with respect to Parent, only to the extent 25%
of any such Equity Interests are owned by a single Person, or such lower percentage as may be required for Agent or and Lender to comply
with any legal or regulatory requirements to which it is subject).


 


(c) Set
forth on Schedule 4.1(c) to this Agreement (as such Schedule may be updated from time to time at the request of Agent), is a complete
and accurate list of Parent and each Loan Parties’ direct and indirect Subsidiaries, showing: (i) the number of shares of each class
of common and preferred Equity Interests authorized for each of such Subsidiaries, and (ii) the number and the percentage of the outstanding
shares of each such class owned directly or indirectly by Parent and each Loan Party. All of the outstanding Equity Interests of each
such Subsidiary has been validly issued and is fully paid and non-assessable.


 


(d) Except as set forth on Schedule
4.1(d) to this Agreement, or in any public filings with the U.S. Securities and Exchange Commission with respect to Parent,
there are no subscriptions, options, warrants, or calls relating to any shares of Parent any Loan Party’s or any of their
respective Subsidiaries’ Equity Interests, including any right of conversion or exchange under any outstanding security or
other instrument. Neither Parent nor any Loan Party is subject to any obligation (contingent or otherwise) to repurchase or
otherwise acquire or retire any shares of its Equity Interests or any security convertible into or exchangeable for any of its
Equity Interests, except, with respect to Parent, as reported in any public filings with the U.S. Securities and Exchange
Commission.


 






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4.2 Due
Authorization; No Conflict.


 


(a) As
to Parent and each Loan Party, the execution, delivery, and performance by such Parent or Loan Party of the Loan Documents to which it
is a party have been duly authorized by all necessary action on the part of such Parent or Loan Party.


 


(b) As
to Parent and each Loan Party, the execution, delivery, and performance by such Parent or Loan Party of the Loan Documents to which it
is a party do not and will not (i) violate any material provision of federal, state, or local law or regulation applicable to Parent,
any Loan Party or its Subsidiaries, the Governing Documents of Parent, any Loan Party or its Subsidiaries, or any order, judgment, or
decree of any court or other Governmental Authority binding on Parent, any Loan Party or its Subsidiaries, (ii) conflict with, result
in a breach of, or constitute (with due notice or lapse of time or both) a default under any material agreement of Parent, any Loan Party
or its Subsidiaries (and Parent as of the Closing Date) where any such conflict, breach or default could individually or in the aggregate
reasonably be expected to have a Material Adverse Effect, (iii) result in or require the creation or imposition of any Lien of any nature
whatsoever upon any assets of any Loan Party, other than Permitted Liens, or (iv) require any approval of any holder of Equity Interests
of Parent or a Loan Party, or any approval or consent of any Person under any material agreement of any Loan Party (and Parent as of the
Closing Date), other than consents or approvals that have been obtained and that are still in force and effect and except, in the case
of material agreements, for consents or approvals, the failure to obtain could not individually or in the aggregate reasonably be expected
to cause a Material Adverse Effect.


 


4.3 Governmental
Consents. The execution, delivery, and performance by Parent and each Loan Party
of the Loan Documents to which such Person is a party and the consummation of the transactions contemplated by the Loan Documents do
not and will not require any registration with, consent, or approval of, or notice to, or other action with or by, any Governmental
Authority, other than registrations, consents, approvals, notices, or other actions that have been obtained and that are still in
force and effect and except for filings and recordings with respect to the Collateral to be made, or otherwise delivered to Agent
for filing or recordation, as of the Closing Date.


 


4.4 Binding
Obligations; Perfected Liens.


 


(a) Each
Loan Document has been duly executed and delivered by each Loan Party that is a party thereto (and by Parent to the extent party thereto
and to the extent applicable thereto) and is the legally valid and binding obligation of such Person, enforceable against such Person
in accordance with its respective terms, except as enforcement may be limited by equitable principles or by bankruptcy, insolvency, reorganization,
moratorium, or similar laws relating to or limiting creditors’ rights generally.


 


(b) Agent’s Liens
are validly created, perfected (other than (i) in respect of motor vehicles that are subject to a certificate of title, (ii) money,
(iii) letter-of-credit rights (other than supporting obligations), (iv) commercial tort claims (other than those that, by the terms
of the Guaranty and Security Agreement, are required to be perfected), and (v) any Deposit Accounts and Securities Accounts not
subject to a Control Agreement as permitted by Section 7(k)(iv) of the Guaranty and Security Agreement, and subject only to
the filing of financing statements, in each case, in the appropriate filing offices), and subject to the Intercreditor Agreement,
first priority Liens, subject only to Permitted Liens which are (A) non-consensual Permitted Liens, (B) permitted purchase money
Liens, (C) the interests of lessors under Capital Leases, or (D) Liens securing the Term Loan Debt permitted pursuant to clause (f)
of the definition of Permitted Indebtedness (provided, that, such Liens are subject to the Intercreditor
Agreement).


 






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4.5 Title to Assets;
No Encumbrances. Each of the Borrowers and its Subsidiaries has (a)  good, sufficient and legal title to (in the case of
fee interests in Real Property), (b) valid leasehold interests in (in the case of leasehold interests in real or personal property),
and (c) good and marketable title to (in the case of all other personal property), all of their respective assets reflected in their
most recent financial statements delivered pursuant to Section 5.1, in each case except for assets disposed of since the date
of such financial statements to the extent permitted hereby. All of such assets are free and clear of Liens except for Permitted Liens.


 


4.6 Litigation.
There are no actions, suits, or proceedings pending or, to the knowledge of any Borrower, after due inquiry, threatened in writing against
Parent, a Loan Party or any of its Subsidiaries that either individually or in the aggregate could reasonably be expected to result in
a Material Adverse Effect.


 


4.7 Compliance with
Laws. Neither Parent, nor any Loan Party, nor any subsidiary of any Loan Party (a)
is in violation of any applicable laws, rules, regulations, executive orders, or codes (including Environmental Laws) that, individually
or in the aggregate, could reasonably be expected to result in a Material Adverse Effect, or (b) is subject to or in default with respect
to any final judgments, writs, injunctions, decrees, rules or regulations of any court or any federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality, domestic or foreign, that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect.


 


4.8 No Material Adverse
Effect. As of the Closing Date, all historical financial statements relating to Parent,
the the Loan Parties and their Subsidiaries (and Parent) that have been delivered by Borrowers to Agent have been prepared in accordance
with GAAP in all material respects (except, in the case of unaudited financial statements, for the lack of footnotes and being subject
to year-end audit adjustments) and present fairly in all material respects, the Parent’s and Loan Parties’ consolidated financial
condition as of the date thereof and results of operations for the period then ended. Since December 31, 2016 through the Closing Date,
no event, circumstance, or change has occurred that has or could reasonably be expected to result in a Material Adverse Effect.


 


4.9 Solvency.


 


(a) Each
Loan Party and Parent is Solvent (with respect to Parent only, on a consolidated basis with its Subsidiaries).


 


(b) No
transfer of property is being made by any Loan Party or Parent, and no obligation is being incurred by any Loan Party or Parent, in connection
with the transactions contemplated by this Agreement or the other Loan Documents with the intent to hinder, delay, or defraud either present
or future creditors of such Loan Party or Parent.


 






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4.10 Employee Benefits.


 


(a) Except as set forth
on Schedule 4.10, no Loan Party or any of its Subsidiaries, nor any of their ERISA Affiliates, sponsors, maintains or contributes
to (i) any Pension Plan or (ii) any Multiemployer Plan that is intended to qualify as such under Section 401(a) of the IRC.


 


(b) Each Loan Party has
complied in all material respects with ERISA, the IRC and all applicable laws regarding each Employee Benefit Plan other than any such
instances of non-compliance that are not reasonably expected to result in an Event of Default under Section 8.12 below.


 


(c) Each Employee Benefit
Plan is, and has been, administered and operated in all material respects in substantial compliance with ERISA, the IRC, all applicable
laws and the terms of each such Employee Benefit Plan other than any such instances of non-compliance that are not reasonably expected
to result in an Event of Default under Section 8.12 below.


 


(d) Each Employee Benefit
Plan that is intended to qualify under Section 401(a) of the IRC has received a favorable determination letter from the Internal Revenue
Service or is entitled to rely on an opinion letter provided under a volume submitter or prototype plan program. To the best knowledge
of each Loan Party and each of its Subsidiaries after due inquiry, nothing has occurred which would prevent, or cause the loss of, such
qualification of any such Employee Benefit Plan.


 


(e) No liability to the
PBGC (other than for the payment of current premiums which are not past due) by any Loan Party or any of its Subsidiaries has been incurred
or is reasonably expected to be incurred by any Loan Party or any of its Subsidiaries with respect to any Pension Plan that is reasonably
expected to result in an Event of Default under Section 8.12 below.


 


(f) No Notification Event
exists that could reasonably be expected to result in an Event of Default under Section 8.12 below.


 


(g) No Loan Party or
ERISA Affiliate has provided any security under Section 436 of the IRC that could reasonably be expected to result in an Event of Default
under Section 8.12 below.


 


(h) No
Loan Party or any of its Subsidiaries has incurred or is reasonably expected to incur any liability as the result of any ERISA Affiliate
that could reasonably be expected to result in an Event of Default under Section 8.12 below.


 


4.11 Environmental
Condition. Except as set forth on Schedule 4.11 to this Agreement, (a) to each
Borrower’s knowledge, no Loan Party’s nor any of its Subsidiaries’ properties or assets has ever been used by a Loan
Party, its Subsidiaries, or to Borrower’s knowledge, by previous owners or operators in the disposal of, or to produce, store,
handle, treat, release, or transport, any Hazardous Materials, where such disposal, production, storage, handling, treatment, release
or transport was in violation, in any material respect, of any applicable Environmental Law, (b) to each Borrower’s knowledge,
after due inquiry, no Loan Party’s nor any of its Subsidiaries’ properties or assets has ever been designated or identified
in any manner pursuant to any environmental protection statute as a Hazardous Materials disposal site, (c) no Loan Party nor any of its
Subsidiaries has received notice that a Lien arising under any Environmental Law has attached to any revenues or to any Real Property
owned or operated by a Loan Party or its Subsidiaries, and (d) no Loan Party nor any of its Subsidiaries nor any of their respective
facilities or operations is subject to any outstanding written order, consent decree, or settlement agreement with any Person relating
to any Environmental Law or Environmental Liability, in each case, that, individually or in the aggregate, could reasonably be expected
to result in a Material Adverse Effect.


 






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4.12 Complete Disclosure.
All factual information taken as a whole (other than forward-looking information and projections and information of a general economic
nature and general information about the industry of any Loan Party or its Subsidiaries) furnished by or on behalf of a Loan Party or
its Subsidiaries in writing to Agent or any Lender (including all information contained in the Schedules hereto or in the other Loan
Documents) for purposes of or in connection with this Agreement or the other Loan Documents, and all other such factual information taken
as a whole (other than forward-looking information and projections and information of a general economic nature and general information
about the industry of any Loan Party or its Subsidiaries) hereafter furnished by or on behalf of a Loan Party or its Subsidiaries in
writing to Agent or any Lender will be, true and accurate, in all material respects, on the date as of which such information is dated
or certified and not incomplete by omitting to state any fact necessary to make such information (taken as a whole) not misleading in
any material respect at such time in light of the circumstances under which such information was provided.


 


4.13 Patriot Act.
To the extent applicable, Parent and each Loan Party is in compliance, in all material respects, with the (a) Trading with the Enemy
Act, as amended, and each of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter
V, as amended) and any other enabling legislation or executive order relating thereto, and (b) Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act of 2001, as amended) (the “Patriot Act”).


 


4.14 [Reserved]


 


4.15 Payment of Taxes.
Except as otherwise permitted under Section 5.5, all Tax returns and reports of each Borrower and its Subsidiaries, required to be filed
by any of them have been timely filed, and all Taxes shown on such Tax returns to be due and payable and all other Taxes upon each Borrower
or its Subsidiaries, or upon their respective assets, income, businesses and franchises, that are due and payable have been paid when
due and payable (except, with respect to Parent, to the extent that it could not reasonably be expected to result in in a Material Adverse
Effect). Each Borrower and each of its Subsidiaries have made adequate provision in accordance with GAAP for all Taxes not yet due and
payable. No Borrower knows of any proposed Tax assessment against a Borrower or any of its Subsidiaries that either has not been consented
to by Borrower or Subsidiary or is not subject to a Permitted Protest.


 


4.16 Margin Stock.
No Borrower nor any Subsidiaries of any Borrower owns any Margin Stock or is engaged principally, or as one of its important activities,
in the business of extending credit for the purpose of purchasing or carrying any Margin Stock. No part of the proceeds of the loans
made to Borrowers will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying
any Margin Stock or for any purpose that violates the provisions of Regulation T, U or X of the Board of Governors. No Borrower nor any
Subsidiaries of any Borrower expects to acquire any Margin Stock.


 


4.17 Governmental Regulation.
No Borrower and no Subsidiary of any Borrower is subject to regulation under the Federal Power Act or the Investment Company Act of 1940
or under any other federal or state statute or regulation which may limit its ability to incur the Obligations as applicable to it or
which may otherwise render all or any portion of the Obligations unenforceable. No Borrower nor Subsidiaries of any Borrower is a “registered
investment company” or a company “controlled” by a “registered investment company” or a “principal
underwriter” of a “registered investment company” as such terms are defined in the Investment Company Act of 1940.


 






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4.18 OFAC; Sanctions;
Anti-Corruption Laws; Anti-Money Laundering Laws. Neither Parent nor any of its Subsidiaries
is in violation of any Sanctions. Neither Parent nor any of its Subsidiaries nor, to the knowledge of each Loan Party, any director,
officer, employee or Affiliate of Parent or such Subsidiary (a) is a Sanctioned Person or a Sanctioned Entity, (b) has any assets located
in Sanctioned Entities, or (c) derives revenues from investments in, or transactions with Sanctioned Persons or Sanctioned Entities.
Parent and its Subsidiaries have collectively implemented and maintains in effect policies reasonably designed to ensure compliance with
all Sanctions, Anti-Corruption Laws and Anti-Money Laundering Laws. Parent and its Subsidiaries, and to the knowledge of each such Loan
Party, each director, officer, employee and Affiliate of Parent and each such Subsidiary, is in compliance with all Sanctions, Anti-Corruption
Laws and Anti-Money Laundering Laws. No proceeds of any Loan made nor any Letter of Credit issued hereunder will be used to fund any
operations in, finance any investments or activities in, or make any payments to, a Sanctioned Person or a Sanctioned Entity, or otherwise
used in any manner that would result in a violation of any Sanction, Anti-Corruption Law or Anti-Money Laundering Law by Parent, any
of its Subsidiaries or any of its or their respective Affiliates.


 


4.19 Employee and Labor
Matters.


 


(a) There
is (i) no unfair labor practice complaint pending or, to the knowledge of any Borrower, threatened against any Borrower or its Subsidiaries
before any Governmental Authority and no grievance or arbitration proceeding pending or threatened against any Borrower or its Subsidiaries
which arises out of or under any collective bargaining agreement and that could reasonably be expected to result in a material liability,
(ii) no strike, labor dispute, slowdown, stoppage or similar action or grievance pending or threatened in writing against any Borrower
or its Subsidiaries that could reasonably be expected to result in a material liability, or (iii) to the knowledge of any Borrower, after
due inquiry, no union representation question existing with respect to the employees of any Borrower or its Subsidiaries and no union
organizing activity taking place with respect to any of the employees of any Borrower or its Subsidiaries. No Borrower or its Subsidiaries
has incurred any liability or obligation under the Worker Adjustment and Retraining Notification Act or similar state law, which remains
unpaid or unsatisfied. The hours worked and payments made to employees of each Borrower and its Subsidiaries have not been in violation
of the Fair Labor Standards Act or any other applicable legal requirements, except to the extent such violations could not, individually
or in the aggregate, reasonably be expected to result in a Material Adverse Effect. All material payments due from any Borrower or its
Subsidiaries on account of wages and employee health and welfare insurance and other benefits have been paid or accrued as a liability
on the books of Borrowers, except where the failure to do so could not, individually or in the aggregate, reasonably be expected to result
in a Material Adverse Effect.


 


(b) No Loan Party (other
than the Borrowers and their Subsidiaries) is engaged in any unfair labor practice that could reasonably be expected, either
individually or in the aggregate, to have a Material Adverse Effect. There is (i) no strike, labor dispute, slowdown, or stoppage
pending against any Loan Party (other than the Borrowers and their Subsidiaries) or, to the Borrowers’ knowledge, threatened
against or affecting a Loan Party (other than the Borrowers and their Subsidiaries) and (ii) to the Borrowers’ knowledge, no
union representation proceeding is pending with respect to the employees of any Loan Party (other than the Borrowers and their
Subsidiaries) and no union organizing activities are taking place, except (with respect to any matter specified in clause (i) or
(ii) above, either individually or in the aggregate) such as could not reasonably be expected to have a Material Adverse Effect. The
hours worked and payments made to employees of each Loan Party and its Subsidiaries (other than the Borrowers and their
Subsidiaries) have not been in violation of the Fair Labor Standards Act or any other applicable legal requirements, except to the
extent such violations could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
All material payments due from any Loan Party or its Subsidiaries (other than the Borrowers and their Subsidiaries) on account of
wages and employee health and welfare insurance and other benefits have been paid or accrued as a liability on the books of
Borrowers, except where the failure to do so could not, individually or in the aggregate, reasonably be expected to result in a
Material Adverse Effect.


 






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4.20 [Reserved]


 


4.21 Leases.
Each Borrower and its Subsidiaries enjoy peaceful and undisturbed possession under all leases material to their business and to which
they are parties or under which they are operating, and, subject to Permitted Protests, all of such material leases are valid and subsisting
and no material default by the applicable Borrower or its Subsidiaries exists under any of them.


 


4.22 Eligible Accounts.
As to each Account that is identified by Borrowers as an Eligible Account in a Borrowing Base Certificate submitted to Agent, such Account
is (a) a bona fide existing payment obligation of the applicable Account Debtor created by the sale and delivery of Inventory or the
rendition of services to such Account Debtor in the ordinary course of a Borrower’s business, (b) owed to a Borrower without any
known defenses, disputes, offsets, counterclaims, or rights of return or cancellation, and (c) not excluded as ineligible by virtue of
one or more of the excluding criteria (other than any Agent-discretionary criteria) set forth in the definition of Eligible Accounts.


 


4.23 Eligible Inventory.
As to each item of Inventory that is identified by Borrowers as Eligible Finished Goods Inventory, or Eligible In-Transit Inventory,
in a Borrowing Base Certificate submitted to Agent, such Inventory is (a) of good and merchantable quality, free from known defects,
and (b) not excluded as ineligible by virtue of one or more of the excluding criteria (other than any Agent-discretionary criteria) set
forth in the definition of Eligible Inventory (in the case of Eligible In-Transit Inventory, after giving effect to any exclusions therefrom
specified in the definition of Eligible In-Transit Inventory).


 


4.24 Location of Inventory.
Other than de minimus amounts of Inventory in the ordinary course of operations, the Inventory of Borrowers and their Subsidiaries is
not stored with a bailee, warehouseman, or similar party and is located only at, or in-transit between, the locations identified on Schedule
4.25 to this Agreement (as such Schedule may be updated pursuant to Section 5.14).


 


4.25 Inventory Records.
Each Borrower keeps correct and accurate records itemizing and describing the type, quality, and quantity of its and its Subsidiaries’
Inventory and the book value thereof in all material respects.


 


4.26 Hedge Agreements.
On each date that any Hedge Agreement is executed by any Hedge Provider, each Borrower satisfies all eligibility, suitability and other
requirements under the Commodity Exchange Act (7 U.S.C. § 1, et seq., as in effect from time to time) and the Commodity Futures
Trading Commission regulations.


 


4.27 Material Contracts.
Schedule 4.29 to this Agreement sets forth all Material Contracts to which any Borrower is a party or is bound as of the date hereof.
Borrowers have delivered or otherwise made available true, correct and complete copies of such Material Contracts to Agent on or before
the date hereof. Borrowers are not in breach or in default in any material respect of or under any Material Contract and have not received
any notice of the intention of any other party thereto to terminate any Material Contract.


 






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4.28 Pacific Ethanol
Acquired Inventory. Pursuant to the Marketing Agreements, (a) title to Pacific Ethanol
Acquired Inventory consisting of ethanol passes from the seller to the applicable Borrower at the fill nozzle to the tank in which such
Pacific Ethanol Acquired Inventory is stored by such seller, and (b) title to Pacific Ethanol Acquired Inventory consisting of co-products
and distiller grain products passes from the seller to the applicable Borrower upon deposit of such co-product or distiller grant product
by such seller into a receiving truck, barge, or railcar located on the storage facility of such seller. No storage tank or storage facility
that stores or holds Pacific Ethanol Acquired Inventory as of any date of determination stores or holds any asset or property as of such
date of determination other than Pacific Ethanol Acquired Inventory. To the extent a storage tank or storage facility holds Pacific Ethanol
Acquired Inventory as of any date of determination, all ethanol and co-products stored or held in such storage tank or storage facility
as of such date of determination constitutes Pacific Ethanol Acquired Inventory.


 


5. AFFIRMATIVE
COVENANTS.


 


Each Borrower covenants and
agrees that, until the termination of all of the Commitments and payment in full of the Obligations:


 


5.1 Financial Statements,
Reports, Certificates. Borrowers (a) will deliver to Agent, with copies to each Lender,
each of the financial statements, reports, and other items set forth on Schedule 5.1 to this Agreement no later than the times
specified therein, (b) agree that neither Parent nor any Borrower or any Subsidiary of a Borrower will have a fiscal year different from
that of Administrative Borrower, (c) agree to maintain a system of accounting that enables Borrowers to produce financial statements
in accordance with GAAP, and (d) agree that they will, and will cause each other Borrower and Parent to, (i) keep a reporting system
that shows all additions, sales, claims, returns, and allowances with respect to their and their Subsidiaries’ sales, and (ii)
maintain their billing systems and practices substantially as in effect as of the Closing Date and shall only make material modifications
thereto with notice to and with the consent of Agent in its Permitted Discretion.


 


5.2 Reporting.
Borrowers (a) will deliver to Agent (and if so requested by Agent, with copies for each Lender) each of the reports set forth on Schedule
5.2 to this Agreement at the times specified therein, and (b) agree to use commercially reasonable efforts in cooperation with any
reasonable request of Agent to facilitate and implement a system of electronic collateral reporting in order to provide electronic reporting
of each of the items set forth on such Schedule.


 


5.3 Existence.
Except as otherwise permitted under Section 6.3 or Section 6.4, each Loan Party will, and will cause each of its Subsidiaries
to, at all times preserve and keep in full force and effect such Person’s valid existence and good standing in its jurisdiction
of organization and, except as could not reasonably be expected to result in a Material Adverse Effect, good standing with respect to
all other jurisdictions in which it is qualified to do business and any rights, franchises, permits, licenses, accreditations, authorizations,
or other approvals material to their businesses.


 


5.4 Maintenance of
Properties. Each Borrower will, and will cause each of its Subsidiaries to, maintain
and preserve all of its assets that are necessary or useful in the proper conduct of its business in good working order and condition,
ordinary wear, tear, casualty, and condemnation and Permitted Dispositions excepted (and except where the failure to so maintain and
preserve assets could not reasonably be expected to result in a Material Adverse Effect).


 






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5.5 Taxes.
Each Borrower will, and will cause each of its Subsidiaries to, pay in full before delinquency or before the expiration of any extension
period all Taxes imposed, levied, or assessed against it, or any of its assets or in respect of any of its income, businesses, or franchises,
other than to the extent that the validity of such Tax is the subject of a Permitted Protest.


 


5.6 Insurance.
Each Borrower will, and will cause each of its Subsidiaries to, at Borrowers’ expense, maintain insurance respecting each of each
Borrower’s and its Subsidiaries’ assets wherever located, covering liabilities, losses or damages as are customarily are
insured against by other Persons engaged in same or similar businesses and similarly situated and located. All such policies of insurance
shall be with financially sound and reputable insurance companies acceptable to Agent and in such amounts as is carried generally in
accordance with sound business practice by companies in similar businesses similarly situated and located and, in any event, in amount,
adequacy, and scope reasonably satisfactory to Agent (it being agreed that the amount, adequacy, and scope of the policies of insurance
of Borrowers in effect as of the Closing Date are acceptable to Agent). All property insurance policies are to be made payable to Agent
for the benefit of Agent and the Lenders, as their interests may appear, in case of loss, pursuant to a standard lender’s loss
payable endorsement with a standard non-contributory “lender” or “secured party” clause and are to contain such
other provisions as Agent may reasonably require to fully protect the Lenders’ interest in the Collateral and to any payments to
be made under such policies. All certificates of property and general liability insurance are to be delivered to Agent, with the lender’s
loss payable and additional insured endorsements in favor of Agent and shall provide for not less than thirty days (ten days in the case
of non-payment) prior written notice to Agent of the exercise of any right of cancellation. If any Borrower or its Subsidiaries fails
to maintain such insurance, Agent may arrange for such insurance, but at Borrowers’ expense and without any responsibility on Agent’s
part for obtaining the insurance, the solvency of the insurance companies, the adequacy of the coverage, or the collection of claims.
Borrowers shall give Agent prompt notice of any loss exceeding $1,000,000.00 covered by the casualty or business interruption insurance
of any Borrower or its Subsidiaries. Upon the occurrence and during the continuance of an Event of Default, Agent shall have the sole
right to file claims under any property and general liability insurance policies in respect of the Collateral, to receive, receipt and
give acquittance for any payments that may be payable thereunder, and to execute any and all endorsements, receipts, releases, assignments,
reassignments or other documents that may be necessary to effect the collection, compromise or settlement of any claims under any such
insurance policies.


 


5.7 Inspection.


 


(a) Each
Borrower will, and will cause each of its Subsidiaries and Parent to, permit Agent, any Lender, and each of their respective duly authorized
representatives or agents to visit any of its properties and inspect any of its assets or books and records, to examine and make copies
of its books and records, and to discuss its affairs, finances, and accounts with, and to be advised as to the same by, its officers and
employees (provided, that an authorized representative of a Borrower shall be allowed to be present) at such reasonable times and
intervals as Agent or any Lender, as applicable, may designate and, so long as no Default or Event of Default has occurred and is continuing,
with reasonable prior notice to Borrowers and during regular business hours, at Borrowers’ expense in accordance with the provisions
of the Fee Letter, subject to the limitations set forth below in Section 5.7(c).


 


(b) Each Borrower will, and
will cause each of its Subsidiaries and Parent to, permit Agent and each of its duly authorized representatives or agents to conduct
field examinations, appraisals or valuations at such reasonable times and intervals as Agent may designate, at Borrowers’ expense
in accordance with the provisions of the Fee Letter, subject to the limitations set forth below in Section 5.7(c).


 






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(c) So
long as no Default or Event of Default has occurred and is continuing, Borrowers shall not be obligated to pay Agent for out-of-pocket
expenses and costs incurred by Agent in connection with more than one (1) such field examination in any twelve (12) month period (or two
(2) times during any 12 month period if Excess Availability is at any time during such 12 month period less than 15% of the Maximum Revolver
Amount) following the date hereof. In addition, Agent may, at its election and at Borrower’ expense, no more than one (1) time in
any twelve (12) month period (or two (2) times during any 12 month period (x) with respect to any Inventory subject to a Borrower Requested
Appraisal (as defined below) or (y) if Excess Availability is at any time during such 12 month period less than 15% of the Maximum Revolver
Amount), conduct appraisals as to the Inventory, which appraisals shall be Acceptable Appraisals, provided, that, (i) if an Event of Default
has occurred and is continuing, Agent may conduct, at Borrowers’ expense, such additional appraisals as to the Inventory without
limitation, as determined by Agent and (ii) at the request of Borrower made no more than one (1) time in any 12 month period, Agent shall
conduct, at the expense of Borrower, an appraisal of Inventory selected by Borrower for appraisal (any such appraisal under this clause
(ii) referred to herein as a “Borrower Requested Appraisal”);


 


5.8 Compliance with
Laws. Each Borrower will, and will cause each of its Subsidiaries and Parent to, comply
with the requirements of all applicable laws, rules, regulations, and orders of any Governmental Authority, other than laws, rules, regulations,
and orders the non-compliance with which, individually or in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect.


 


5.9 Environmental.
Each Borrower will, and will cause each of its Subsidiaries and Parent (with respect to Parent only, to the extent its failure to do
so could reasonably be expected to result in a Material Adverse Effect) to,


 


(a) Keep
any property either owned or operated by any Borrower or its Subsidiaries free of any Environmental Liens or post bonds or other financial
assurances sufficient to satisfy the obligations or liability evidenced by such Environmental Liens,


 


(b) Comply,
in all material respects, with Environmental Laws and provide to Agent documentation of such compliance which Agent reasonably requests,


 


(c) Promptly
notify Agent of any release of which any Borrower has knowledge of a Hazardous Material in any reportable quantity from or onto property
owned or operated by any Borrower or its Subsidiaries and take any Remedial Actions required to abate said release or otherwise to come
into compliance, in all material respects, with applicable Environmental Law, and


 


(d) Promptly,
but in any event within ten (10) Business Days of its receipt thereof, provide Agent with written notice of any of the following: (i)
notice that an Environmental Lien has been filed against any of the real or personal property of a Borrower or its Subsidiaries, (ii)
commencement of any Environmental Action or written notice that an Environmental Action will be filed against a Borrower or its Subsidiaries,
and (iii) written notice of a violation, citation, or other administrative order from a Governmental Authority to the extent any such
violation, citation or other administrative order could result in a Material Adverse Effect.


 






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5.10 Disclosure Updates.
Each Borrower will, promptly and in no event later than ten (10) Business Days after obtaining knowledge thereof, notify Agent if any
written information, exhibit, or report furnished to Agent or the Lenders contained, at the time it was furnished, any untrue statement
of a material fact or omitted to state any material fact necessary to make the statements contained therein not misleading in light of
the circumstances in which made. The foregoing to the contrary notwithstanding, any notification pursuant to the foregoing provision
will not cure or remedy the effect of the prior untrue statement of a material fact or omission of any material fact nor shall any such
notification have the effect of amending or modifying this Agreement or any of the Schedules hereto.


 


5.11 Formation of Subsidiaries.
Each Borrower will, at the time that any Borrower forms any direct or indirect Subsidiary, acquires any direct or indirect Subsidiary
after the Closing Date, within ten days of such event (or such later date as permitted by Agent in its sole discretion) (a) cause such
new Subsidiary (i) if Administrative Borrower requests, subject to the consent of Agent, that such Domestic Subsidiary be joined as a
Borrower hereunder, to provide to Agent a Joinder to this Agreement, and (ii) to provide to Agent a joinder to the Guaranty and Security
Agreement, in each case, together with such other security agreements, as well as appropriate financing statements, all in form and substance
reasonably satisfactory to Agent (including being sufficient to grant Agent a first priority Lien (subject to Permitted Liens) in and
to the assets of such newly formed or acquired Subsidiary); provided, that the Joinder, the joinder to the Guaranty and Security
Agreement, and such other security agreements shall not be required to be provided to Agent with respect to any Subsidiary of any Borrower
that is a CFC if providing such agreements would result in adverse tax consequences or the costs to the Borrowers of providing such guaranty
or such security agreements are unreasonably excessive (as determined by Agent in consultation with Borrowers) in relation to the benefits
to Agent and the Lenders of the security or guarantee afforded thereby, (b) provide, or cause the applicable Borrower to provide, to
Agent a pledge agreement (or an addendum to the Guaranty and Security Agreement) and appropriate certificates and powers or financing
statements, pledging all of the direct or beneficial ownership interest in such new Subsidiary in form and substance reasonably satisfactory
to Agent; provided, that only 65% of the total outstanding voting Equity Interests of any first tier Subsidiary of a Borrower
that is a CFC (and none of the Equity Interests of any Subsidiary of such CFC) shall be required to be pledged if pledging a greater
amount would result in adverse tax consequences or the costs to the Borrowers of providing such pledge are unreasonably excessive (as
determined by Agent in consultation with Borrowers) in relation to the benefits to Agent and the Lenders of the security afforded thereby
(which pledge, if reasonably requested by Agent, shall be governed by the laws of the jurisdiction of such Subsidiary), and (c) provide
to Agent all other documentation, including the Governing Documents of such Subsidiary and one or more opinions of counsel reasonably
satisfactory to Agent, which, in its opinion, is appropriate with respect to the execution and delivery of the applicable documentation
referred to above (including policies of title insurance, flood certification documentation or other documentation with respect to all
Real Property). Any document, agreement, or instrument executed or issued pursuant to this Section 5.11 shall constitute a Loan
Document.


 


5.12 Further
Assurances. Each Borrower will, and will cause each of the other Loan Parties to, at any time upon the reasonable request of
Agent, execute or deliver to Agent any and all financing statements, fixture filings, security agreements, pledges, assignments, and
all other documents (the “Additional Documents”) that Agent may reasonably request in form and substance
reasonably satisfactory to Agent, to (i) create, perfect, and continue perfected or to better perfect Agent’s Liens in all of
the assets of each of the Loan Parties (whether now owned or hereafter arising or acquired, tangible or intangible, real or
personal) (other than any assets expressly excluded from the Collateral (as defined in the Guaranty and Security Agreement) pursuant
to Section 3 of the Guaranty and Security Agreement), and (ii) in order to fully consummate all of the transactions
contemplated hereby and under the other Loan Documents; provided, that the foregoing shall not apply to any Subsidiary of a Borrower
that is a CFC if providing such documents would result in adverse tax consequences or the costs to the Loan Parties of providing
such documents are unreasonably excessive (as determined by Agent in consultation with Borrowers) in relation to the benefits to
Agent and the Lenders of the security afforded thereby. To the maximum extent permitted by applicable law, if any Borrower or any
other Borrower or Parent refuses or fails to execute or deliver any reasonably requested Additional Documents within a reasonable
period of time not to exceed ten (10) Business Days following the written request of Agent to do so, each Borrower and each other
Borrower and Parent hereby authorizes Agent to execute any such Additional Documents in the applicable Borrower’s name and
authorizes Agent to file such executed Additional Documents in any appropriate filing office. In furtherance of, and not in
limitation of, the foregoing, each Borrower and Parent shall take such actions as Agent may reasonably request from time to time to
ensure that the Obligations, to the extent guaranteed by the Guarantors, continue to be so guaranteed.


 






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5.13 [Reserved].


 


5.14 Location of Inventory;
Chief Executive Office. Each Borrower will, and will cause each of its Subsidiaries
to, keep (a) except while in transit in the ordinary course of business, and a de minimis amount of Inventory that is not Eligible Inventory,
all Inventory only at the locations identified on Schedule 4.25 to this Agreement (provided that Borrowers may amend Schedule
4.25 to this Agreement so long as such amendment occurs by written notice to Agent not less than ten (10) days prior to the date
on which such Inventory is moved to such new location and so long as Agent has consented to such amendment and such new location is within
the continental United States), and (b) their respective chief executive offices only at the locations identified on Schedule 7
to the Guaranty and Security Agreement. Each Borrower will, and will cause each of its Subsidiaries to, use their commercially reasonable
efforts to obtain (i) Collateral Access Agreements for each of the locations at which Eligible Inventory is located, and (ii) ratification
of all Collateral Access Agreements delivered to Agent’s predecessor agent, Wells Fargo Capital Finance, LLC, under the Existing
Loan Agreement.


 


5.15 OFAC; Sanctions;
Anti-Corruption Laws; Anti-Money Laundering Laws. Each Borrower will, and will cause
Parent and each of its Subsidiaries to, comply with all applicable Sanctions, Anti-Corruption Laws and Anti-Money Laundering Laws. Each
of the Loan Parties shall implement and maintain, and cause Parent and its Subsidiaries to collectively implement and maintain, in effect
policies and procedures designed to ensure compliance by the Parent and its Subsidiaries and their respective directors, officers, employees
and Affiliates with all Sanctions, Anti-Corruption Laws and Anti-Money Laundering Laws. Each of the Loan Parties shall, and shall cause
their respective Subsidiaries and Parent and its Subsidiaries, to comply with all Sanctions, Anti-Corruption Laws and Anti-Money Laundering
Laws.


 


5.16 Compliance
with ERISA and the IRC.. In addition to and without limiting the generality of Section 5.8, each Borrower shall, and shall
cause its Subsidiaries and Parent to, except for instances that are not reasonably expected to result in an Event of Default under
Section 8.12 below, (a) comply in all material respects with the applicable provisions of ERISA and the IRC with respect to all
Employee Benefit Plans, (b) without the prior written consent of Agent and the Required Lenders, not take any action or fail to take
action the result of which could result in a Borrower or ERISA Affiliate incurring liability to the PBGC with respect to any Pension
Plan or to a Multiemployer Plan (other than for contributions, claims for benefits or premiums payable in the ordinary course), (c)
not participate in any prohibited transaction that could result in other than a de minimis civil penalty, excise tax, fiduciary
liability or correction obligation under ERISA or the IRC, (d) operate each Employee Benefit Plan in such a manner that will not
incur any material tax liability under the IRC (including Section 4980B of the IRC) (other than for contributions, claims for
benefits or premiums payable in the ordinary course, and (e) furnish to Agent upon Agent’s written request such additional
information about any Employee Benefit Plan for which any Borrower or ERISA Affiliate could reasonably expect to incur any material
liability other than for contributions, claims for benefits or premiums payable in the ordinary course. With respect to each Pension
Plan (other than a Multiemployer Plan), except as could not reasonably be expected to result in an Event of Default under Section
8.12 below, the Loan Parties and ERISA Affiliates shall (i) satisfy in full and in a timely manner, without incurring any late
payment or underpayment charge or penalty and without giving rise to any Lien, all of the contribution and funding requirements of
the IRC and of ERISA, and (ii) pay, or cause to be paid, to the PBGC in a timely manner, without incurring any late payment or
underpayment charge or penalty, all premiums required pursuant to ERISA.


 






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6. NEGATIVE
COVENANTS.


 


Each Borrower covenants and
agrees that, until the termination of all of the Commitments and the payment in full of the Obligations:


 


6.1 Indebtedness.
Each Borrower will not, and will not permit any of its Subsidiaries to, create, incur, assume, suffer to exist, guarantee, or otherwise
become or remain, directly or indirectly, liable with respect to any Indebtedness, except for Permitted Indebtedness.


 


6.2 Liens.
Each Borrower will not, and will not permit any of its Subsidiaries to, create, incur, assume, or suffer to exist, directly or indirectly,
any Lien on or with respect to any of its assets, of any kind, whether now owned or hereafter acquired, or any income or profits therefrom,
except for Permitted Liens.


 


6.3 Restrictions on
Fundamental Changes. Each Borrower will not, and will not permit any of its Subsidiaries
or Parent to,


 


(a) Enter
into any merger, consolidation, reorganization, or recapitalization, or reclassify its Equity Interests, except for (i) any merger between
Borrowers; provided, that a Borrower must be the surviving entity of any such merger to which it is a party and no merger may occur
between Parent and any Borrower and (ii) any merger between Subsidiaries of any Borrower or of Parent that are not Loan Parties (and,
with respect to Parent and Subsidiaries of Parent only, to the extent any of the foregoing could reasonably be expected to result in a
Material Adverse Effect),


 


(b) liquidate,
wind up, or dissolve itself (or suffer any liquidation or dissolution), except for (i) the liquidation or dissolution of non-operating
Subsidiaries of any Borrower with nominal assets and nominal liabilities, (ii) [reserved], (iii) the liquidation or dissolution of a Subsidiary
of any Borrower that is not a Loan Party (other than any such Subsidiary the Equity Interests of which (or any portion thereof) is subject
to a Lien in favor of Agent) so long as all of the assets of such liquidating or dissolving Subsidiary are transferred to a Subsidiary
of a Borrower that is not liquidating or dissolving, or (iv) the liquidation, winding up, or dissolution of any Subsidiary of Parent,
only to the extent it could reasonably be expected to result in a Material Adverse Effect,


 


(c) suspend
or cease operating a substantial portion of its or their business, except as permitted pursuant to clauses (a) or (b) above or in connection
with a transaction permitted under Section 6.4 (and, with respect to Parent only, to the extent it could reasonably be expected
to result in a Material Adverse Effect), or


 


(d) change
its classification/status for U.S. federal income tax purposes (and, with respect to Parent only, to the extent it could reasonably be
expected to result in a Material Adverse Effect).


 






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6.4 Disposal of Assets.
Other than Permitted Dispositions or transactions expressly permitted by Sections 6.3 or 6.9, each Borrower will not, and
will not permit any of its Subsidiaries to, convey, sell, lease, license, assign, transfer, or otherwise dispose of any of its or their
assets.


 


6.5 Nature of Business.
Each Borrower will not, and will not permit any of its Subsidiaries to, make any change in the fundamental nature of its or their business
as described in Schedule 6.5 to this Agreement or acquire any properties or assets that are not reasonably related to the conduct
of such business activities; provided, that the foregoing shall not prevent any Borrower and its Subsidiaries from engaging in
any business that is reasonably related or ancillary to its or their business.


 


6.6 Prepayments and
Amendments. Each Borrower will not, and will not permit any of its Subsidiaries to,


 


(a) Except
in connection with Refinancing Indebtedness permitted by Section 6.1,


 


(i) optionally
prepay, redeem, defease, purchase, or otherwise acquire (A) any Subordinated Indebtedness of any Borrower or its Subsidiaries, or (B)
any Indebtedness of any Borrower or its Subsidiaries that is secured by a Lien on the Collateral that is junior to the Agent’s Liens
other than any prepayment of the Term Loan Obligations with proceeds of Term Loan Priority Collateral, or


 


(ii) make
any payment on account of Indebtedness that has been contractually subordinated in right of payment to the Obligations if such payment
is not permitted at such time under the subordination terms and conditions, or


 


(b) Directly
or indirectly, amend, modify, or change in any material respect any of the terms or provisions of:


 


(i) any
agreement, instrument, document, indenture, or other writing evidencing or concerning Permitted Indebtedness other than (A) the Obligations
in accordance with this Agreement, (B) Hedge Obligations, (C) Permitted Intercompany Advances, and (D) Indebtedness permitted under clauses
(c), (f) (subject to the terms of the Intercreditor Agreement), (h), (j) and (k) of the definition of Permitted
Indebtedness, or


 


(ii) the
Governing Documents of any Borrower or any of its Subsidiaries if the effect thereof, either individually or in the aggregate, could reasonably
be expected to be materially adverse to the interests of the Lenders.


 


6.7 Restricted Payments.
Each Borrower will not, and will not permit any of its Subsidiaries to, make any Restricted Payment; provided, that so long as
it is permitted by law:


 


(a) so long as no Default
or Event of Default shall have occurred and be continuing or would result therefrom, Borrowers may make distributions to former
employees, officers, or directors of Borrowers (or any spouses, ex-spouses, or estates of any of the foregoing) on account of
redemptions of Equity Interests of Borrowers held by such Persons; provided, that the aggregate amount of such redemptions
made by such Borrower during the term of this Agreement plus the amount of Indebtedness outstanding under clause (l)
of the definition of Permitted Indebtedness, does not exceed $50,000 in the aggregate in any calendar year,


 






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(b) so
long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, Borrowers may make distributions
to former employees, officers, or directors of such Borrower (or any spouses, ex-spouses, or estates of any of the foregoing), solely
in the form of forgiveness of Indebtedness of such Persons owing to Borrowers on account of repurchases of the Equity Interests of Borrowers
held by such Persons; provided, that such Indebtedness was incurred by such Persons solely to acquire Equity Interests of such
Borrower,


 


(c) [reserved],


 


(d) so
long as Kinergy is treated as a limited liability company for federal income tax purposes, Kinergy may distribute to the Parent, to the
extent actually payable by Parent to the applicable taxing authority, with respect to each taxable year an aggregate amount equal to the
product of (i) the maximum combined federal and state income tax rate applicable to corporations (or individuals, if higher) doing business
in the state to which the Parent allocates at least ten (10%) percent of its taxable income and which has the highest such rate (or the
state in which the Parent allocates more income than any other state, if it doesn’t allocate at least ten percent (10%) of its taxable
income to any state) times (ii) the excess of the taxable income of the Parent for such taxable year over the taxable losses of the Parent
for all prior taxable years that have not previously been used to reduce taxable income pursuant to this clause (d), or


 


(e) a
Borrower may make other Restricted Payments that satisfy the Additional Payment Conditions.


 


6.8 Accounting Methods.
Each Borrower will not, and will not permit any of its Subsidiaries or Parent to modify or change its fiscal year (other than as may
be required to conform to GAAP) or its method of accounting from GAAP-based accounting.


 


6.9 Investments.
Each Borrower will not, and will not permit any of its Subsidiaries to, directly or indirectly, make or acquire any Investment or incur
any liabilities (including contingent obligations) for or in connection with any Investment except for Permitted Investments.


 


6.10 Transactions with
Affiliates. Each Borrower will not, and will not permit any of its Subsidiaries to,
directly or indirectly, enter into or permit to exist any transaction with any Affiliate of any Borrower or any of its Subsidiaries except
for:


 


(a) [reserved],


 


(b) [reserved],


 


(c) the
payment of reasonable compensation, severance, or employee benefit arrangements to employees, officers, and outside directors of a Borrower
or one of its Subsidiaries in the ordinary course of business and consistent with industry practice so long as it has been approved by
such Borrower’s or such Subsidiary’s board of directors (or comparable governing body) in accordance with applicable law,


 






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(d) (i)
transactions solely among the Borrowers and (ii)  transactions solely among Subsidiaries of Borrowers that are not Borrowers,


 


(e) transactions
permitted by Section 6.3, Section 6.7, or Section 6.9,


 


(f) quarterly
payments of Management Fees (i) by Kinergy to Parent for those services provided by Parent to Kinergy pursuant to the Affiliate Company
Agreement as in effect on the date hereof in an amount not to exceed $1,500,000 per fiscal quarter and (ii) by Alto Nutrients to Parent
for those services provided by Parent to Alto Nutrients pursuant to the Affiliate Company Agreement as in effect on the date hereof in
an amount not to exceed $500,000 per fiscal quarter,


 


(g) [reserved],


 


(h) agreements
for the non-exclusive licensing of intellectual property, or distribution of products, in each case, among the Borrowers and their Subsidiaries
for the purpose of the counterparty thereof operating its business, and agreements for the assignment of intellectual property from any
Borrower or any of its Subsidiaries to any Borrower, or


 


(i) transactions
to purchase, acquire or lease any property from, or sell, transfer, lease or provide any property, goods or services to any Affiliate
of a Borrower (including Parent) in the ordinary course of such Borrower’s business upon fair and reasonable terms no less favorable
to such Borrower than such Borrower would obtain in a comparable arm’s length transaction with an unaffiliated person.


 


6.11 Use of
Proceeds. Each Borrower will not, and will not permit any of its Subsidiaries
to, use the proceeds of any Loan made hereunder for any purpose other than (a) on the Closing Date, (i) to repay, in full, the
outstanding principal, accrued interest, and accrued fees and expenses owing under or in connection with the Existing Credit
Facility, and (ii) to pay the fees, costs, and expenses incurred in connection with this Agreement, the other Loan Documents, and
the transactions contemplated hereby and thereby, in each case, as set forth in the Flow of Funds Agreement, and (b) thereafter,
consistent with the terms and conditions hereof, for their lawful and permitted purposes; provided that (x) no part of the proceeds
of the Loans will be used to purchase or carry any such Margin Stock or to extend credit to others for the purpose of purchasing or
carrying any such Margin Stock or for any purpose that violates the provisions of Regulation T, U or X of the Board of Governors,
(y) no part of the proceeds of any Loan or Letter of Credit will be used, directly or to Borrowers’ knowledge, indirectly, to
make any payments to a Sanctioned Entity or a Sanctioned Person, to fund any investments, loans or contributions in, or otherwise
make such proceeds available to, a Sanctioned Entity or a Sanctioned Person, to fund any operations, activities or business of a
Sanctioned Entity or a Sanctioned Person, or in any other manner that would result in a violation of Sanctions by any Person, and
(z) that no part of the proceeds of any Loan or Letter of Credit will be used, directly or to Borrowers’ knowledge,
indirectly, in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything
else of value, to any Person in violation of any Sanctions, Anti-Corruption Laws or Anti-Money Laundering Laws.


 


6.12 Limitation on
Issuance of Equity Interests. Except for the issuance or sale of Qualified Equity
Interests by Parent with respect to Alto Nutrients or by Kinergy with respect to Alto Nutrients, each Borrower will not, and will not
permit any of its Subsidiaries issue or sell any of its Equity Interests and each Borrower will not permit Parent issue or sell any of
its Equity Interests in and to Kinergy, provided that any pledge of the Equity Interests in and to the Loan Parties and their Subsidiaries
pursuant to the terms of the Term Loan Documents, subject to the terms of the Intercreditor Agreement, shall not be prohibited by this
Section 6.12.


 






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6.13 Inventory with
Bailees. Each Borrower will not, and will not permit any of its Subsidiaries to, store
its Inventory at any time with a bailee, warehouseman, or similar party except as set forth on Schedule 4.25 (as such Schedule may be
amended in accordance with Section 5.14).


 


6.14 [Reserved]


 


6.15 [Reserved] 


.


 


6.16 Employee Benefits.
Each Borrower will not:


 


(a) Terminate,
or permit any ERISA Affiliate to terminate, any Pension Plan in a manner, or take any other action with respect to any Pension Plan, which
could reasonably be expected to result in any liability of any Borrower or ERISA Affiliate to the PBGC that could be reasonably expected
to result in an Event of Default under Section 8.12 below.


 


(b) Fail
to make, or permit any ERISA Affiliate to fail to make, full payment when due of all amounts which, under the provisions of any Pension
Plan, agreement relating thereto or applicable Law, any Borrower or ERISA Affiliate is required to pay if such failure could reasonably
be expected to result in an Event of Default under Section 8.12 below.


 


(c) Permit
to exist, or allow any ERISA Affiliate to permit to exist, any accumulated funding deficiency within the meaning of section 302 of ERISA
or section 412 of the Code, whether or not waived, with respect to any Pension Plan which could be reasonably expected to result in an
Event of Default under Section 8.12 below.


 


(d) Contribute
to or assume an obligation to contribute to, or permit any ERISA Affiliate to contribute to or assume an obligation to contribute to,
any Multiemployer Plan not set forth on Schedule 4.10 that could be reasonably expected to result in an Event of Default under Section
8.12 below.


 


(e) Amend,
or permit any ERISA Affiliate to amend, a Pension Plan resulting in a material increase in current liability such that a Borrower or ERISA
Affiliate is required to provide security to such Plan under the IRC that could be reasonably expected to result in an Event of Default
under Section 8.12 below.


 


7. FINANCIAL
COVENANTS.


 


Until the termination of all
of the Commitments and the payment in full of the Obligations, each Borrower covenants and agrees that:


 


7.1 Fixed Charge Coverage
Ratio. Borrowers will maintain a Fixed Charge Coverage Ratio of not less than 1.10
to 1.00, calculated as of the last day of each fiscal month of Borrowers for the 12 month period then ended; provided, that, the financial
covenant under this clause (b) shall not apply to any month for which the Excess Availability was at all times during such month, and
at all times during each of the two (2) prior months, greater than twenty percent (20%) of the Maximum Revolver Amount; provided, further,
that the foregoing test metric shall be based on Liquidity and not Excess Availability during any consecutive five (5) Business Day period
that includes the last Business Day of a fiscal quarter (not to exceed five (5) total Business Days for any quarter end).


 




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8. EVENTS
OF DEFAULT.


 


Any one or more of the following
events shall constitute an event of default (each, an “Event of Default”) under this Agreement:


 


8.1 Payments.
If Borrowers fail to pay when due and payable, or when declared due and payable, (a) all or any portion of the Obligations consisting
of interest, fees, or charges due the Lender Group, reimbursement of Lender Group Expenses, or other amounts (other than any portion
thereof constituting principal) constituting Obligations (including any portion thereof that accrues after the commencement of an Insolvency
Proceeding, regardless of whether allowed or allowable in whole or in part as a claim in any such Insolvency Proceeding), and such failure
continues for a period of three Business Days, (b) all or any portion of the principal of the Loans, or (c) any amount payable to Issuing
Bank in reimbursement of any drawing under a Letter of Credit;


 


8.2 Covenants.


 


(a) If
any Loan Party or any of its Subsidiaries fails to perform or observe any covenant or other agreement contained in any of (i) Sections
5.1, 5.2, 5.6, 5.7 (solely if any Borrower refuses to allow Agent or its representatives or agents to visit any
Borrower’s properties, inspect its assets or books or records, examine and make copies of its books and records, or discuss Borrowers’
affairs, finances, and accounts with officers and employees of any Borrower), 5.10, 5.11, 5.13, or 5.14 of
this Agreement, (ii) Section 6 of this Agreement, (iii) Section 7 of this Agreement, or (iv) Section 7 of the Guaranty
and Security Agreement;


 


(b) If
any Loan Party or any of its Subsidiaries, or, as applicable, Parent, fails to perform or observe any covenant or other agreement contained
in any of Sections 5.3, 5.4, 5.5, 5.8, and 5.12 of this Agreement and such failure continues for a
period of fifteen (15) days after the earlier of (i) the date on which such failure shall first become known to any executive officer
of any Borrower, or (ii) the date on which written notice thereof is given to Borrowers by Agent; or


 


(c) If
any Loan Party or any of its Subsidiaries fails to perform or observe any covenant or other agreement contained in this Agreement, or
in any of the other Loan Documents, in each case, other than any such covenant or agreement that is the subject of another provision of
this Section 8 (in which event such other provision of this Section 8 shall govern), and such failure continues for a period
of thirty days after the earlier of (i) the date on which such failure shall first become known to any officer of any Borrower, or (ii)
the date on which written notice thereof is given to Borrowers by Agent;


 


8.3 Judgments.
If one or more judgments, orders, or awards for the payment of money involving an aggregate amount of $250,000 or more (except to the
extent any such excess amount is fully covered (other than to the extent of customary deductibles) by insurance pursuant to which the
insurer has not denied coverage) is entered or filed against Parent, a Loan Party or any of its Subsidiaries, or with respect to any
of their respective assets, and either (a) there is a period of thirty consecutive days at any time after the entry of any such judgment,
order, or award during which (i) the same is not discharged, satisfied, vacated, or bonded pending appeal, or (ii) a stay of enforcement
thereof is not in effect, or (b) enforcement proceedings are commenced upon such judgment, order, or award (and, for each of the foregoing
with respect to Parent only, could reasonably be expected to result in a Material Adverse Effect);


 






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8.4 Voluntary Bankruptcy,
etc. If an Insolvency Proceeding of Parent, any Loan Party, or any Subsidiary of any
Loan Party, is commenced by Parent, by a Loan Party, or by any Subsidiaries of any Loan Party;


 


8.5 Involuntary Bankruptcy,
etc. If an Insolvency Proceeding is commenced against Parent, against a Loan Party,
or against any Subsidiaries of any Loan Party, and, in each instance, any of the following events occur: (a) such Parent, such Loan Party,
or such Subsidiary, consents to the institution of such Insolvency Proceeding against it, (b) the petition commencing the Insolvency
Proceeding is not timely controverted, (c) the petition commencing the Insolvency Proceeding is not dismissed within sixty (60) calendar
days of the date of the filing thereof, (d) an interim trustee is appointed to take possession of all or any substantial portion of the
properties or assets of, or to operate all or any substantial portion of the business of, such Parent, or such Loan Party or its Subsidiary,
or (e) an order for relief shall have been issued or entered therein;


 


8.6 Default Under Other
Agreements. If there is (a) a default in one or more agreements to which a Loan Party
or any of its Subsidiaries, or Parent, is a party with one or more third Persons relative to a Loan Party’s or any of its Subsidiaries’,
or Parent’s, Indebtedness involving an aggregate amount of $1,000,000 or more, and such default (i) occurs at the final maturity
of the obligations thereunder, or (ii) results in a right by such third Person, irrespective of whether exercised, to accelerate the
maturity of such Loan Party’s or its Subsidiary’s, or Parent’s, obligations thereunder, (b) if there is an “Event
of Default” (as such term is defined in the Term Loan Agreement) under the Term Loan Documents, or (c) a default in or an involuntary
early termination of one or more Hedge Agreements to which a Loan Party or any of its Subsidiaries, or Parent, is a party involving an
aggregate amount of $1,000,000 or more, or (c) a default under any Material Contract, which default continues for more than the applicable
cure period, if any, with respect thereto and/or is not waived in writing by the other parties thereto (and, for each of the foregoing
with respect to the Guarantors only, could reasonably be expected to result in a Material Adverse Effect);


 


8.7 Representations,
etc. If any warranty, representation, certificate or record made herein or in any
other Loan Document proves to be untrue in any material respect (except that such materiality qualifier shall not be applicable to any
representations and warranties that already are qualified or modified by materiality in the text thereof) as of the date of issuance
or making or deemed making thereof;


 


8.8 Guaranty.
(a) Any default (after expiration of all applicable notice and cure periods therein) by any Guarantor under any Guaranty and Security
Agreement or (b) if the obligations of any Guarantor under any Guaranty and Security Agreement is limited in any respect or terminated
by operation of law or by such Guarantor (other than in accordance with the terms of this Agreement) or (c) if any Guarantor repudiates
or revokes or purports to repudiate or revoke any such guaranty;


 


8.9 Security Documents.
As to any Loan Party, if the Guaranty and Security Agreement or any other Loan Document that purports to create a Lien, shall, for any
reason, fail or cease to create a valid and perfected and, (except to the extent of Permitted Liens which are which are (A) non-consensual
Permitted Liens, (B) permitted purchase money Liens, (C) the interests of lessors under Capital Leases, or (D) Liens securing the Term
Loan Debt permitted pursuant to clause (f) of the definition of Permitted Indebtedness (provided, that, such Liens are
subject to the Intercreditor Agreement)) first priority Lien, subject to the Intercreditor Agreement, on the Collateral covered thereby,
except (a) as a result of a disposition of the applicable Collateral in a transaction permitted under this Agreement, or (b) otherwise
with respect to such Collateral, having an aggregate value of no greater than $250,000;


 




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8.10 Loan Documents.
The validity or enforceability of any Loan Document shall at any time for any reason (other than solely as the result of an action or
failure to act on the part of Agent) be declared to be null and void, or a proceeding shall be commenced by Parent, by a Loan Party or
its Subsidiaries, or by any Governmental Authority having jurisdiction over Parent, or any Loan Party or its Subsidiaries, seeking to
establish the invalidity or unenforceability thereof, or Parent or any Loan Party or its Subsidiaries shall deny that such Parent, or
such Loan Party or its Subsidiaries, has any liability or obligation purported to be created under any Loan Document; or


 


8.11 Change of Control.
A Change of Control shall occur, whether directly or indirectly; or


 


8.12 ERISA.
The occurrence of any of the following events: (a) any Loan Party or ERISA Affiliate fails to make full payment when due of all amounts
which any Loan Party or ERISA Affiliate is required to pay as contributions, installments, or otherwise to or with respect to a Pension
Plan or Multiemployer Plan (including the failure to make any Withdrawal Liability payment when due), and such failure could reasonably
be expected to result in liability in excess of $250,000, (b) an accumulated funding deficiency or funding shortfall in excess of $10,000,000
occurs or exists, whether or not waived, with respect to any Pension Plan, individually or in the aggregate, (c) a Notification Event,
which could reasonably be expected to result in liability in excess of $250,000, either individually or in the aggregate, or (d) any
Loan Party or ERISA Affiliate completely or partially withdraws from one or more Multiemployer Plans and incurs Withdrawal Liability
in excess of $250,000 in the aggregate; or


 


8.13 Material Adverse
Effect. There shall have occurred a Material Adverse Effect as to any Loan Party or
Parent.


 


9. RIGHTS
AND REMEDIES.


 


9.1 Rights and Remedies.
Upon the occurrence and during the continuation of an Event of Default, Agent may, and, at the instruction of the Required Lenders, shall,
in addition to any other rights or remedies provided for hereunder or under any other Loan Document or by applicable law, do any one
or more of the following:


 


(a) by
written notice to Borrowers, (i) declare the principal of, and any and all accrued and unpaid interest and fees in respect of, the Loans
and all other Obligations (other than the Bank Product Obligations), whether evidenced by this Agreement or by any of the other Loan Documents
to be immediately due and payable, whereupon the same shall become and be immediately due and payable and Borrowers shall be obligated
to repay all of such Obligations in full, without presentment, demand, protest, or further notice or other requirements of any kind, all
of which are hereby expressly waived by each Borrower, and (ii) direct Borrowers to provide (and Borrowers agree that upon receipt of
such notice Borrowers will provide) Letter of Credit Collateralization to Agent to be held as security for Borrowers’ reimbursement
obligations for drawings that may subsequently occur under issued and outstanding Letters of Credit;


 


(b) by
written notice to Borrowers, declare the Commitments terminated, whereupon the Commitments shall immediately be terminated together with
(i) any obligation of any Revolving Lender to make Revolving Loans, (ii) the obligation of the Swing Lender to make Swing Loans, and (iii)
the obligation of Issuing Bank to issue Letters of Credit; and


 




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(c) exercise
all other rights and remedies available to Agent or the Lenders under the Loan Documents, under applicable law, or in equity.


 


The foregoing to the contrary notwithstanding,
upon the occurrence of any Event of Default described in Section 8.4 or Section 8.5, in addition to the remedies set forth
above, without any notice to Borrowers or any other Person or any act by the Lender Group, the Commitments shall automatically terminate
and the Obligations (other than the Bank Product Obligations), inclusive of the principal of, and any and all accrued and unpaid interest
and fees in respect of, the Loans and all other Obligations (other than the Bank Product Obligations), whether evidenced by this Agreement
or by any of the other Loan Documents, shall automatically become and be immediately due and payable and Borrowers shall automatically
be obligated to repay all of such Obligations in full (including Borrowers being obligated to provide (and Borrowers agree that they will
provide) (1) Letter of Credit Collateralization to Agent to be held as security for Borrowers’ reimbursement obligations in respect
of drawings that may subsequently occur under issued and outstanding Letters of Credit and (2) Bank Product Collateralization to be held
as security for Borrowers’ or their Subsidiaries’ obligations in respect of outstanding Bank Products), without presentment,
demand, protest, or notice or other requirements of any kind, all of which are expressly waived by Borrowers.


 


9.2 Remedies Cumulative.
The rights and remedies of the Lender Group under this Agreement, the other Loan Documents, and all other agreements shall be cumulative.
The Lender Group shall have all other rights and remedies not inconsistent herewith as provided under the Code, by law, or in equity.
No exercise by the Lender Group of one right or remedy shall be deemed an election, and no waiver by the Lender Group of any Default
or Event of Default shall be deemed a continuing waiver. No delay by the Lender Group shall constitute a waiver, election, or acquiescence
by it.


 


9.3 Reserved.


 


10. WAIVERS;
INDEMNIFICATION.


 


10.1 Demand; Protest;
etc. Each Borrower waives demand, protest, notice of protest, notice of default or
dishonor, notice of payment and nonpayment, nonpayment at maturity, release, compromise, settlement, extension, or renewal of documents,
instruments, chattel paper, and guarantees at any time held by the Lender Group on which any Borrower may in any way be liable.


 


10.2 The Lender Group’s
Liability for Collateral. Each Borrower hereby agrees that: (a) so long as Agent complies
with its obligations, if any, under the Code, the Lender Group shall not in any way or manner be liable or responsible for: (i) the safekeeping
of the Collateral, (ii) any loss or damage thereto occurring or arising in any manner or fashion from any cause, (iii) any diminution
in the value thereof, or (iv) any act or default of any carrier, warehouseman, bailee, forwarding agency, or other Person, and (b) all
risk of loss, damage, or destruction of the Collateral shall be borne by the Loan Parties.


 






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10.3 Indemnification.
Each Borrower shall pay, indemnify, defend, and hold the Agent-Related Persons, the Lender-Related Persons, the Issuing Bank, and
each Participant (each, an “Indemnified Person”) harmless (to the fullest extent permitted by law) from and
against any and all claims, demands, suits, actions, investigations, proceedings, liabilities, fines, costs, penalties, and damages,
and all reasonable fees and disbursements of attorneys, experts, or consultants and all other costs and expenses actually incurred
in connection therewith or in connection with the enforcement of this indemnification (as and when they are incurred and
irrespective of whether suit is brought), at any time asserted against, imposed upon, or incurred by any of them (a) in connection
with or as a result of or related to the execution and delivery (provided, that Borrowers shall not be liable for costs and
expenses (including attorneys’ fees) of any Lender (other than Wells Fargo) incurred in advising, structuring, drafting,
reviewing, administering or syndicating the Loan Documents), enforcement, performance, or administration (including any
restructuring or workout with respect hereto) of this Agreement, any of the other Loan Documents, or the transactions contemplated
hereby or thereby or the monitoring of the Loan Parties’ and their Subsidiaries’ compliance (and to the extent expressly
applicable to Parent, Parent’s, compliance) with the terms of the Loan Documents (provided, that the indemnification in
this clause (a) shall not extend to (i) disputes solely between or among the Lenders that do not involve any acts or omissions of
any Loan Party, or (ii) disputes solely between or among the Lenders and their respective Affiliates that do not involve any acts or
omissions of any Loan Party; it being understood and agreed that the indemnification in this clause (a) shall extend to Agent (but
not the Lenders unless the dispute involves an act or omission of a Loan Party) relative to disputes between or among Agent on the
one hand, and one or more Lenders, or one or more of their Affiliates, on the other hand, or (iii) any claims for Taxes, which shall
be governed by Section 16, other than Taxes which relate to primarily non-Tax claims), (b) with respect to any actual or
prospective investigation, litigation, or proceeding related to this Agreement, any other Loan Document, the making of any Loans or
issuance of any Letters of Credit hereunder, or the use of the proceeds of the Loans or the Letters of Credit provided hereunder
(irrespective of whether any Indemnified Person is a party thereto), or any act, omission, event, or circumstance in any manner
related thereto, and (c) in connection with or arising out of or attributable to the use, generation, manufacture, reproduction,
storage, release, threatened release, spill, discharge, disposal or presence of Hazardous Materials at, on, under, to or from any
assets or properties owned, leased or operated by any Loan Party or any of its Subsidiaries or any Environmental Actions,
Environmental Liabilities or Remedial Actions related in any way to any such assets or properties of any Loan Party or any of its
Subsidiaries (each and all of the foregoing, the “Indemnified Liabilities”). The foregoing to the contrary
notwithstanding, no Borrower shall have any obligation to any Indemnified Person under this Section 10.3 with respect to any
Indemnified Liability that a court of competent jurisdiction finally determines to have resulted from the gross negligence or
willful misconduct of such Indemnified Person or its officers, directors, employees, attorneys, or agents. This provision shall
survive the termination of this Agreement and the repayment in full of the Obligations. If any Indemnified Person makes any payment
to any other Indemnified Person with respect to an Indemnified Liability as to which Borrowers were required to indemnify the
Indemnified Person receiving such payment, the Indemnified Person making such payment is entitled to be indemnified and reimbursed
by Borrowers with respect thereto. WITHOUT LIMITATION, THE FOREGOING INDEMNITY SHALL APPLY TO EACH INDEMNIFIED PERSON WITH
RESPECT TO INDEMNIFIED LIABILITIES WHICH IN WHOLE OR IN PART ARE CAUSED BY OR ARISE OUT OF ANY NEGLIGENT ACT OR OMISSION OF SUCH
INDEMNIFIED PERSON OR OF ANY OTHER PERSON.


 






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11. NOTICES.


 


Unless otherwise provided in
this Agreement, all notices or demands relating to this Agreement or any other Loan Document shall be in writing and (except for financial
statements and other informational documents which may be sent by first-class mail, postage prepaid) shall be personally delivered or
sent by registered or certified mail (postage prepaid, return receipt requested), overnight courier, electronic mail (at such email addresses
as a party may designate in accordance herewith), or telefacsimile. In the case of notices or demands to any Loan Party or Agent, as the
case may be, they shall be sent to the respective address set forth below:


 


	If to any Loan Party:	c/o Administrative Borrower
	 	400 Capital Mall, Suite 2060
	 	Sacramento, California 95814
	 	Attn: General Counsel
	 	 
	with copies to:	Troutman Pepper
	 	5 Park Plaza, Suite 1400
	 	Irvine, California 92614
	 	Attn:  Larry Cerutti, Esq.
	 	 
	If to Agent:	WELLS FARGO BANK, NATIONAL ASSOCIATION
	 	1800 Century Park East, Suite 1100
	 	Los Angeles, CA 90067
	 	Attn: Loan Portfolio Manager
	 	 
	with copies to:	Otterbourg, P.C.
	 	230 Park Avenue
	 	New York, NY 10169
	 	Attn:  Jim M. Cretella, Esq.



 


Any party hereto may change
the address at which they are to receive notices hereunder, by notice in writing in the foregoing manner given to the other party. All
notices or demands sent in accordance with this Section 11, shall be deemed received on the earlier of the date of actual receipt
or three Business Days after the deposit thereof in the mail; provided, that (a) notices sent by overnight courier service shall be deemed
to have been given when received, (b) notices by facsimile shall be deemed to have been given when sent (except that, if not given during
normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the
recipient) and (c) notices by electronic mail shall be deemed received upon the sender’s receipt of an acknowledgment from the intended
recipient (such as by the “return receipt requested” function, as available, return email or other written acknowledgment).


 






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12. CHOICE
OF LAW AND VENUE; JURY TRIAL WAIVER; JUDICIAL REFERENCE PROVISION.


 


(a) THE
VALIDITY OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (UNLESS EXPRESSLY PROVIDED TO THE CONTRARY IN ANOTHER LOAN DOCUMENT IN RESPECT
OF SUCH OTHER LOAN DOCUMENT), THE CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT HEREOF AND THEREOF, THE RIGHTS OF THE PARTIES HERETO AND
THERETO WITH RESPECT TO ALL MATTERS ARISING HEREUNDER OR THEREUNDER OR RELATED HERETO OR THERETO, AND ANY CLAIMS, CONTROVERSIES OR DISPUTES
ARISING HEREUNDER OR THEREUNDER OR RELATED HERETO OR THERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF CALIFORNIA.


 


(b) THE PARTIES AGREE THAT
ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE TRIED AND LITIGATED ONLY IN
THE STATE AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, FEDERAL COURTS LOCATED IN THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA; PROVIDED,
THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT AGENT’S OPTION, IN THE COURTS OF
ANY JURISDICTION WHERE AGENT ELECTS TO BRING SUCH ACTION OR WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. EACH OF PARENT AND
EACH BORROWER AND EACH MEMBER OF THE LENDER GROUP WAIVE, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH MAY HAVE TO ASSERT
THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION
12(b).


 


(c) TO
THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH OF PARENT AND EACH BORROWER AND EACH MEMBER OF THE LENDER GROUP HEREBY WAIVE THEIR
RESPECTIVE RIGHTS, IF ANY, TO A JURY TRIAL OF ANY CLAIM, CONTROVERSY, DISPUTE OR CAUSE OF ACTION DIRECTLY OR INDIRECTLY BASED UPON OR
ARISING OUT OF ANY OF THE LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH
OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS (EACH A “CLAIM”). EACH BORROWER AND EACH MEMBER OF THE LENDER
GROUP REPRESENT THAT EACH HAS REVIEWED THIS WAIVER AND EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION
WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.


 


(d) EACH
OF PARENT AND EACH BORROWER HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS
LOCATED IN THE COUNTY OF LOS ANGELES AND THE STATE OF CALIFORNIA, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS,
OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING
SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING
IN THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT AGENT MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST ANY LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.


 






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(e) NO
CLAIM MAY BE MADE BY ANY LOAN PARTY AGAINST THE AGENT, THE SWING LENDER, ANY OTHER LENDER, ISSUING BANK, OR ANY AFFILIATE, DIRECTOR, OFFICER,
EMPLOYEE, COUNSEL, REPRESENTATIVE, AGENT, OR ATTORNEY-IN-FACT OF ANY OF THEM FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY
DAMAGES OR LOSSES IN RESPECT OF ANY CLAIM FOR BREACH OF CONTRACT OR ANY OTHER THEORY OF LIABILITY ARISING OUT OF OR RELATED TO THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY ACT, OMISSION, OR EVENT OCCURRING IN CONNECTION THEREWITH, AND EACH
LOAN PARTY HEREBY WAIVES, RELEASES, AND AGREES NOT TO SUE UPON ANY CLAIM FOR SUCH DAMAGES, WHETHER OR NOT ACCRUED AND WHETHER OR NOT KNOWN
OR SUSPECTED TO EXIST IN ITS FAVOR.


 


(f) IN THE EVENT ANY LEGAL
PROCEEDING IS FILED IN A COURT OF THE STATE OF CALIFORNIA (THE “COURT”) BY OR AGAINST ANY PARTY HERETO IN CONNECTION WITH
ANY CLAIM AND THE WAIVER SET FORTH IN CLAUSE (C) ABOVE IS NOT ENFORCEABLE IN SUCH PROCEEDING, THE PARTIES HERETO AGREE AS FOLLOWS:


 


(i) WITH
THE EXCEPTION OF THE MATTERS SPECIFIED IN SUBCLAUSE (ii) BELOW, ANY CLAIM SHALL BE DETERMINED BY A GENERAL REFERENCE PROCEEDING IN ACCORDANCE
WITH THE PROVISIONS OF CALIFORNIA CODE OF CIVIL PROCEDURE SECTIONS 638 THROUGH 645.1. THE PARTIES INTEND THIS GENERAL REFERENCE AGREEMENT
TO BE SPECIFICALLY ENFORCEABLE. VENUE FOR THE REFERENCE PROCEEDING SHALL BE IN THE COUNTY OF LOS ANGELES, CALIFORNIA.


 


(ii) THE
FOLLOWING MATTERS SHALL NOT BE SUBJECT TO A GENERAL REFERENCE PROCEEDING: (A) NON-JUDICIAL FORECLOSURE OF ANY SECURITY INTERESTS IN REAL
OR PERSONAL PROPERTY, (B) EXERCISE OF SELF-HELP REMEDIES (INCLUDING SET-OFF OR RECOUPMENT), (C) APPOINTMENT OF A RECEIVER, AND (D) TEMPORARY,
PROVISIONAL, OR ANCILLARY REMEDIES (INCLUDING WRITS OF ATTACHMENT, WRITS OF POSSESSION, TEMPORARY RESTRAINING ORDERS, OR PRELIMINARY INJUNCTIONS).
THIS AGREEMENT DOES NOT LIMIT THE RIGHT OF ANY PARTY TO EXERCISE OR OPPOSE ANY OF THE RIGHTS AND REMEDIES DESCRIBED IN CLAUSES (A) - (D)
AND ANY SUCH EXERCISE OR OPPOSITION DOES NOT WAIVE THE RIGHT OF ANY PARTY TO PARTICIPATE IN A REFERENCE PROCEEDING PURSUANT TO THIS AGREEMENT
WITH RESPECT TO ANY OTHER MATTER.


 


(iii) UPON
THE WRITTEN REQUEST OF ANY PARTY, THE PARTIES SHALL SELECT A SINGLE REFEREE, WHO SHALL BE A RETIRED JUDGE OR JUSTICE. IF THE PARTIES DO
NOT AGREE UPON A REFEREE WITHIN TEN DAYS OF SUCH WRITTEN REQUEST, THEN, ANY PARTY SHALL HAVE THE RIGHT TO REQUEST THE COURT TO APPOINT
A REFEREE PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 640(B). THE REFEREE SHALL BE APPOINTED TO SIT WITH ALL OF THE POWERS
PROVIDED BY LAW. PENDING APPOINTMENT OF THE REFEREE, THE COURT SHALL HAVE THE POWER TO ISSUE TEMPORARY OR PROVISIONAL REMEDIES.


 


(iv) EXCEPT
AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE REFEREE SHALL DETERMINE THE MANNER IN WHICH THE REFERENCE PROCEEDING IS CONDUCTED INCLUDING
THE TIME AND PLACE OF HEARINGS, THE ORDER OF PRESENTATION OF EVIDENCE, AND ALL OTHER QUESTIONS THAT ARISE WITH RESPECT TO THE COURSE OF
THE REFERENCE PROCEEDING. ALL PROCEEDINGS AND HEARINGS CONDUCTED BEFORE THE REFEREE, EXCEPT FOR TRIAL, SHALL BE CONDUCTED WITHOUT A COURT
REPORTER, EXCEPT WHEN ANY PARTY SO REQUESTS A COURT REPORTER AND A TRANSCRIPT IS ORDERED, A COURT REPORTER SHALL BE USED AND THE REFEREE
SHALL BE PROVIDED A COURTESY COPY OF THE TRANSCRIPT. THE PARTY MAKING SUCH REQUEST SHALL HAVE THE OBLIGATION TO ARRANGE FOR AND PAY THE
COSTS OF THE COURT REPORTER; PROVIDED, THAT SUCH COSTS, ALONG WITH THE REFEREE’S FEES, SHALL ULTIMATELY BE BORNE BY THE PARTY
WHO DOES NOT PREVAIL, AS DETERMINED BY THE REFEREE.


 






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(v) THE
REFEREE MAY REQUIRE ONE OR MORE PREHEARING CONFERENCES. THE PARTIES HERETO SHALL BE ENTITLED TO DISCOVERY, AND THE REFEREE SHALL OVERSEE
DISCOVERY IN ACCORDANCE WITH THE RULES OF DISCOVERY, AND SHALL ENFORCE ALL DISCOVERY ORDERS IN THE SAME MANNER AS ANY TRIAL COURT JUDGE
IN PROCEEDINGS AT LAW IN THE STATE OF CALIFORNIA.


 


(vi) THE
REFEREE SHALL APPLY THE RULES OF EVIDENCE APPLICABLE TO PROCEEDINGS AT LAW IN THE STATE OF CALIFORNIA AND SHALL DETERMINE ALL ISSUES IN
ACCORDANCE WITH CALIFORNIA SUBSTANTIVE AND PROCEDURAL LAW. THE REFEREE SHALL BE EMPOWERED TO ENTER EQUITABLE AS WELL AS LEGAL RELIEF AND
RULE ON ANY MOTION WHICH WOULD BE AUTHORIZED IN A TRIAL, INCLUDING MOTIONS FOR DEFAULT JUDGMENT OR SUMMARY JUDGMENT. THE REFEREE SHALL
REPORT HIS OR HER DECISION, WHICH REPORT SHALL ALSO INCLUDE FINDINGS OF FACT AND CONCLUSIONS OF LAW. THE REFEREE SHALL ISSUE A DECISION
AND PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE, SECTION 644, THE REFEREE’S DECISION SHALL BE ENTERED BY THE COURT AS A JUDGMENT
IN THE SAME MANNER AS IF THE ACTION HAD BEEN TRIED BY THE COURT. THE FINAL JUDGMENT OR ORDER FROM ANY APPEALABLE DECISION OR ORDER ENTERED
BY THE REFEREE SHALL BE FULLY APPEALABLE AS IF IT HAS BEEN ENTERED BY THE COURT.


 


(vii) THE PARTIES RECOGNIZE
AND AGREE THAT ALL CLAIMS RESOLVED IN A GENERAL REFERENCE PROCEEDING PURSUANT HERETO WILL BE DECIDED BY A REFEREE AND NOT BY A JURY.
AFTER CONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF THEIR OWN CHOICE, EACH PARTY HERETO KNOWINGLY AND VOLUNTARILY
AND FOR THEIR MUTUAL BENEFIT AGREES THAT THIS REFERENCE PROVISION SHALL APPLY TO ANY DISPUTE BETWEEN THEM THAT ARISES OUT OF OR IS RELATED
TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS.


 


13. ASSIGNMENTS
AND PARTICIPATIONS; SUCCESSORS.


 


13.1 Assignments
and Participations.


 


(a) Assignments
Generally


 


(i) Subject
to the conditions set forth in clause (a)(ii) below, any Lender may assign and delegate all or any portion of its rights and duties under
the Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees (each, an “Assignee”),
with the prior written consent (such consent not be unreasonably withheld or delayed) of:


 


(A) Borrowers;
provided, that no consent of Borrowers shall be required (1) if a Default or Event of Default has occurred and is continuing, (2) in connection
with the primary syndication of the Commitments and the Obligations by Wells Fargo provided that Wells Fargo shall consult with Borrowers
in connection with such primary syndication (it being understood that in no event shall Wells Fargo be required to obtain Borrowers’
consent with respect to any assignment made in connection with such primary syndication to an Eligible Transferee) or (3) in connection
with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that
Borrowers shall be deemed to have consented to a proposed assignment unless they object thereto by written notice to Agent within five
(5) Business Days after having received notice thereof; and


 




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(B) Agent,
Swing Lender, and Issuing Bank.


 


(ii) Assignments shall
be subject to the following additional conditions:


 


(A) no
assignment may be made (i) so long as no Event of Default has occurred and is continuing, to a Disqualified Institution or (ii) to a natural
person,


 


(B) no
assignment may be made to a Loan Party or an Affiliate of a Loan Party,


 


(C) the
amount of the Commitments and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject
to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent)
shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or
delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders,
each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned
to all such new Lenders is at least $5,000,000),


 


(D) each partial assignment
shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement,


 


(E) the parties to each
assignment shall execute and deliver to Agent an Assignment and Acceptance; provided, that Borrowers and Agent may continue to
deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of
such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given
to Borrowers and Agent by such Lender and the Assignee,


 


(F) unless waived by
Agent, the assigning Lender or Assignee has paid to Agent, for Agent’s separate account, a processing fee in the amount of $3,500,
and


 


(G) the
assignee, if it is not a Lender, shall deliver to Agent an Administrative Questionnaire in a form approved by Agent (the “Administrative
Questionnaire”).


 


(b) From
and after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment of the required processing fee,
(i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it
pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under
the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan
Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section
10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all
or the remaining portion of an assigning Lender’s rights and obligations under this Agreement and the other Loan Documents, such
Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender
from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section
15 and Section 17.9(a).


 






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(c) By executing and
delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each
other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender
makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made
in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of
this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty
and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan
Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee
confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will,
independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under
this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this
Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are
reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this
Agreement are required to be performed by it as a Lender.


 


(d) Immediately
upon Agent’s receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section
13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of
the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce
such Commitments of the assigning Lender pro tanto.


 


(e) Any Lender may at any
time sell to one or more commercial banks, financial institutions, or other Persons (a “Participant”)
participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender
(the “Originating Lender”) hereunder and under the other Loan Documents; provided, that (i) the
Originating Lender shall remain a “Lender” for all purposes of this Agreement and the other Loan Documents and the
Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the
Originating Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and the
Originating Lender’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely
responsible for the performance of such obligations, (iii) Borrowers, Agent, and the Lenders shall continue to deal solely and
directly with the Originating Lender in connection with the Originating Lender’s rights and obligations under this Agreement
and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the
right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to
the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the
final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable
to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or
guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in
which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such
Participant through such Lender (other than a waiver of default interest), or (E) decreases the amount or postpones the due dates of
scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation
shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii)
all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if
amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon
the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating
interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly
to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with
whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any
direct rights as to the other Lenders, Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant
shall have the right to participate directly in the making of decisions by the Lenders among themselves.


 






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(f) In
connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or
pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all
documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.


 


(g) Any
other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion
of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal
Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal
Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such
pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a
party hereto.


 


(h) Agent
(as a non-fiduciary agent on behalf of Borrowers) shall maintain, or cause to be maintained, a register (the “Register”)
on which it enters the name and address of each Lender as the registered owner of the Revolving Loan (and the principal amount thereof
and stated interest thereon) held by such Lender (each, a “Registered Loan”). Other than in connection with an assignment
by a Lender of all or any portion of its portion of the Revolving Loan to an Affiliate of such Lender or a Related Fund of such Lender
(i) a Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration
of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all
or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment
or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied
by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated
assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated
assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any
evidencing the same), Borrowers shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing
the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding
notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Revolving Loan to an Affiliate of such
Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers,
shall maintain a register comparable to the Register.


 


(i) In the event that a
Lender sells participations in the Registered Loan, such Lender, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or
cause to be maintained) a register on which it enters the name of all participants in the Registered Loans held by it (and the
principal amount (and stated interest thereon) of the portion of such Registered Loans that is subject to such participations) (the
“Participant Register”). A Registered Loan (and the Registered Note, if any, evidencing the same) may be
participated in whole or in part only by registration of such participation on the Participant Register (and each registered note
shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be
effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose
all or any portion of the Participant Register (including the identity of any Participant or any information relating to a
Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any
Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other
obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant
Register shall be conclusive absent manifest error, and such Lender shall treat each person whose name is recorded in the
Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the
contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a
Participant Register.


 






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(j) Agent
shall make a copy of the Register (and each Lender shall make a copy of its Participant Register to the extent it has one) available for
review by Borrowers from time to time as Borrowers may reasonably request.


 


13.2 Successors.
This Agreement shall bind and inure to the benefit of the respective successors and assigns of each of the parties; provided, that
no Borrower may assign this Agreement or any rights or duties hereunder without the Lenders’ prior written consent and any
prohibited assignment shall be absolutely void ab initio. No consent to assignment by the Lenders shall release any Borrower
from its Obligations. A Lender may assign this Agreement and the other Loan Documents and its rights and duties hereunder and
thereunder pursuant to Section 13.1 and, except as expressly required pursuant to Section 13.1, no consent or approval
by any Borrower is required in connection with any such assignment.


 


14. AMENDMENTS;
WAIVERS.


 


14.1 Amendments
and Waivers.


 


(a) No
amendment, waiver or other modification of any provision of this Agreement or any other Loan Document (other than the Fee Letter), and
no consent with respect to any departure by any Borrower (and to the extent expressly applicable to Parent, by Parent) therefrom, shall
be effective unless the same shall be in writing and signed by the Required Lenders (or by Agent at the written request of the Required
Lenders) and the Loan Parties that are party thereto and then any such waiver or consent shall be effective, but only in the specific
instance and for the specific purpose for which given; provided, that no such waiver, amendment, or consent shall, unless in writing and
signed by all of the Lenders directly affected thereby and all of the Loan Parties that are party thereto, do any of the following:


 


(i) increase
the amount of or extend the expiration date of any Commitment of any Lender or amend, modify, or eliminate the last sentence of Section
2.4(c)(i),


 


(ii) postpone
or delay any date fixed by this Agreement or any other Loan Document for any payment of principal, interest, fees, or other amounts due
hereunder or under any other Loan Document,


 


(iii) reduce
the principal of, or the rate of interest on, any loan or other extension of credit hereunder, or reduce any fees or other amounts payable
hereunder or under any other Loan Document (except (y) in connection with the waiver of applicability of Section 2.6(c) (which
waiver shall be effective with the written consent of the Required Lenders), and (z) that any amendment or modification of defined terms
used in the financial covenants in this Agreement shall not constitute a reduction in the rate of interest or a reduction of fees for
purposes of this clause (iii)),


 


(iv) amend,
modify, or eliminate this Section or any provision of this Agreement providing for consent or other action by all Lenders,


 




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(v) as
to those Lenders in place as of the Closing Date, amend, modify, or eliminate Section 3.1,


 


(vi) amend,
modify, or eliminate Section 15.11,


 


(vii) other
than as permitted by Section 15.11, release or contractually subordinated Agent’s Lien in and to any of the Collateral,


 


(viii) amend,
modify, or eliminate the definitions of “Required Lenders”, or “Pro Rata Share”,


 


(ix) other
than in connection with a merger, liquidation, dissolution or sale of such Person expressly permitted by the terms hereof or the other
Loan Documents, release any Borrower or any Guarantor from any obligation for the payment of money or consent to the assignment or transfer
by any Borrower or any Guarantor of any of its rights or duties under this Agreement or the other Loan Documents,


 


(x) amend,
modify, or eliminate any of the provisions of Section 2.4(b)(i), (ii) or (iii), or


 


(xi) amend,
modify, or eliminate any of the provisions of Section 13.1 with respect to assignments to, or participations with, Persons who
are Loan Parties, or Affiliates of a Loan Party;


 


(b) No
amendment, waiver, modification, or consent shall amend, modify, waive, or eliminate,


 


(i) the
definition of, or any of the terms or provisions of, the Fee Letter, without the written consent of Agent and Borrowers (and shall not
require the written consent of any of the Lenders),


 


(ii) any
provision of Section 15 pertaining to Agent, or any other rights or duties of Agent under this Agreement or the other Loan Documents,
without the written consent of Agent, Borrowers, and the Required Lenders;


 


(c) No
amendment, waiver, modification, elimination, or consent shall amend, without written consent of Agent, Borrowers and the Required Lenders,
modify, or eliminate the definition of Borrowing Base or any of the defined terms (including the definitions of Eligible Accounts, Eligible
Cash, Eligible Finished Goods Inventory, Eligible In-Transit Inventory, and Eligible Inventory) that are used in such definition to the
extent that any such change results in more credit being made available to Borrowers based upon the Borrowing Base, but not otherwise,
or the definition of Maximum Revolver Amount, or change Section 2.1(c);


 


(d) No
amendment, waiver, modification, elimination, or consent shall amend, modify, or waive any provision of this Agreement or the other Loan
Documents pertaining to Issuing Bank, or any other rights or duties of Issuing Bank under this Agreement or the other Loan Documents,
without the written consent of Issuing Bank, Agent, Borrowers, and the Required Lenders;


 


(e) No amendment, waiver,
modification, elimination, or consent shall amend, modify, or waive any provision of this Agreement or the other Loan Documents
pertaining to Swing Lender, or any other rights or duties of Swing Lender under this Agreement or the other Loan Documents, without
the written consent of Swing Lender, Agent, Borrowers, and the Required Lenders; and


 






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(f) Anything
in this Section 14.1 to the contrary notwithstanding, (i) any amendment, modification, elimination, waiver, consent, termination,
or release of, or with respect to, any provision of this Agreement or any other Loan Document that relates only to the relationship of
the Lender Group among themselves, and that does not affect the rights or obligations of any Loan Party, shall not require consent by
or the agreement of any Loan Party, (ii) any amendment, waiver, modification, elimination, or consent of or with respect to any provision
of this Agreement or any other Loan Document may be entered into without the consent of, or over the objection of, any Defaulting Lender,
and (iii) the Intercreditor Agreement may be amended or modified in a manner that is expressly contemplated by the Intercreditor Agreement.


 


14.2 Replacement
of Certain Lenders.


 


(a) If
(i) any action to be taken by the Lender Group or Agent hereunder requires the consent, authorization, or agreement of all Lenders or
all Lenders affected thereby and if such action has received the consent, authorization, or agreement of the Required Lenders but not
of all Lenders or all Lenders affected thereby, or (ii) Adjusted Daily Simple SOFR is adjusted with respect to any Lender pursuant to
Section 2.12(a), or (iii) any Lender makes a claim for compensation under Section 16, then Borrowers or Agent, upon at least five Business
Days prior irrevocable notice, may permanently replace any Lender that failed to give its consent, authorization, or agreement (a “Non-Consenting
Lender”), any Lender in respect of which Adjusted Daily Simple SOFR is increased (an “Increased Costs Lender”) or any
Lender that made a claim for compensation (a “Tax Lender”) with one or more Replacement Lenders, and the Non-Consenting Lender,
Increased Costs Lender or Tax Lender, as applicable, shall have no right to refuse to be replaced hereunder. Such notice to replace the
Non-Consenting Lender, Increased Costs Lender or Tax Lender, as applicable, shall specify an effective date for such replacement, which
date shall not be later than 15 Business Days after the date such notice is given.


 


(b) Prior
to the effective date of such replacement, the Non-Consenting Lender or Tax Lender, as applicable, and each Replacement Lender shall execute
and deliver an Assignment and Acceptance, subject only to the Non-Consenting Lender, Increased Costs Lender or Tax Lender, as applicable,
being repaid in full its share of the outstanding Obligations (without any premium or penalty of any kind whatsoever, but including (i)
all interest, fees and other amounts that may be due in payable in respect thereof, and (ii) an assumption of its Pro Rata Share of participations
in the Letters of Credit. If the Non-Consenting Lender, Increased Costs Lender or Tax Lender, as applicable, shall refuse or fail to execute
and deliver any such Assignment and Acceptance prior to the effective date of such replacement, Agent may, but shall not be required to,
execute and deliver such Assignment and Acceptance in the name or and on behalf of the Non-Consenting Lender, Increased Costs Lender or
Tax Lender, as applicable, and irrespective of whether Agent executes and delivers such Assignment and Acceptance, the Non-Consenting
Lender, Increased Costs Lender or Tax Lender, as applicable, shall be deemed to have executed and delivered such Assignment and Acceptance.
The replacement of any Non-Consenting Lender, Increased Costs Lender or Tax Lender, as applicable, shall be made in accordance with the
terms of Section 13.1. Until such time as one or more Replacement Lenders shall have acquired all of the Obligations, the Commitments,
and the other rights and obligations of the Non-Consenting Lender, Increased Costs Lender or Tax Lender, as applicable, hereunder and
under the other Loan Documents, the Non-Consenting Lender, Increased Costs Lender or Tax Lender, as applicable, shall remain obligated
to make the Non-Consenting Lender’s, Increased Costs Lender’s or Tax Lender’s, as applicable, Pro Rata Share of Revolving
Loans and to purchase a participation in each Letter of Credit, in an amount equal to its Pro Rata Share of participations in such Letters
of Credit.


 




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14.3 No Waivers; Cumulative
Remedies. No failure by Agent or any Lender to exercise any right, remedy, or option
under this Agreement or any other Loan Document, or delay by Agent or any Lender in exercising the same, will operate as a waiver thereof.
No waiver by Agent or any Lender will be effective unless it is in writing, and then only to the extent specifically stated. No waiver
by Agent or any Lender on any occasion shall affect or diminish Agent’s and each Lender’s rights thereafter to require strict
performance by Borrowers of any provision of this Agreement. Agent’s and each Lender’s rights under this Agreement and the
other Loan Documents will be cumulative and not exclusive of any other right or remedy that Agent or any Lender may have.


 


15. AGENT;
THE LENDER GROUP.


 


15.1 Appointment
and Authorization of Agent. Each Lender hereby designates and appoints Wells Fargo as its agent under this Agreement and the
other Loan Documents and each Lender hereby irrevocably authorizes (and by entering into a Bank Product Agreement, each Bank Product
Provider shall be deemed to designate, appoint, and authorize) Agent to execute and deliver each of the other Loan Documents on its
behalf and to take such other action on its behalf under the provisions of this Agreement and each other Loan Document and to
exercise such powers and perform such duties as are expressly delegated to Agent by the terms of this Agreement or any other Loan
Document, together with such powers as are reasonably incidental thereto. Agent agrees to act as agent for and on behalf of the
Lenders (and the Bank Product Provider) on the conditions contained in this Section 15. Any provision to the contrary contained
elsewhere in this Agreement or in any other Loan Document notwithstanding, Agent shall not have any duties or responsibilities,
except those expressly set forth herein or in the other Loan Documents, nor shall Agent have or be deemed to have any fiduciary
relationship with any Lender (or Bank Product Provider), and no implied covenants, functions, responsibilities, duties, obligations
or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against Agent. Without limiting the
generality of the foregoing, the use of the term “agent” in this Agreement or the other Loan Documents with reference to
Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any
applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only a
representative relationship between independent contracting parties. Each Lender hereby further authorizes (and by entering into a
Bank Product Agreement, each Bank Product Provider shall be deemed to authorize) Agent to act as the secured party under each of the
Loan Documents that create a Lien on any item of Collateral. Except as expressly otherwise provided in this Agreement, Agent shall
have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or
refraining from taking any actions that Agent expressly is entitled to take or assert under or pursuant to this Agreement and the
other Loan Documents. Without limiting the generality of the foregoing, or of any other provision of the Loan Documents that
provides rights or powers to Agent, Lenders agree that Agent shall have the right to exercise the following powers as long as this
Agreement remains in effect: (a) maintain, in accordance with its customary business practices, ledgers and records reflecting the
status of the Obligations, the Collateral, payments and proceeds of Collateral, and related matters, (b) execute or file any and all
financing or similar statements or notices, amendments, renewals, supplements, documents, instruments, proofs of claim, notices and
other written agreements with respect to the Loan Documents, or to take any other action with respect to any Collateral or Loan
Documents which may be necessary to perfect, and maintain perfected, the security interests and Liens upon Collateral pursuant to
the Loan Documents, (c) make Revolving Loans, for itself or on behalf of Lenders, as provided in the Loan Documents, (d) exclusively
receive, apply, and distribute payments and proceeds of the Collateral as provided in the Loan Documents, (e) open and maintain such
bank accounts and cash management arrangements as Agent deems necessary and appropriate in accordance with the Loan Documents for
the foregoing purposes, (f) perform, exercise, and enforce any and all other rights and remedies of the Lender Group with respect to
any Loan Party or its Subsidiaries, the Obligations, the Collateral, or otherwise related to any of same as provided in the Loan
Documents, and (g) incur and pay such Lender Group Expenses as Agent may deem necessary or appropriate for the performance and
fulfillment of its functions and powers pursuant to the Loan Documents.


 






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15.2 Delegation of
Duties. Agent may execute any of its duties under this Agreement or any other Loan
Document by or through agents, employees or attorneys in fact and shall be entitled to advice of counsel concerning all matters pertaining
to such duties. Agent shall not be responsible for the negligence or misconduct of any agent or attorney in fact that it selects as long
as such selection was made without gross negligence or willful misconduct.


 


15.3 Liability of Agent.
None of the Agent-Related Persons shall (a) be liable for any action taken or omitted to be taken by any of them under or in connection
with this Agreement or any other Loan Document or the transactions contemplated hereby (except for its own gross negligence or willful
misconduct), or (b) be responsible in any manner to any of the Lenders (or Bank Product Provider) for any recital, statement, representation
or warranty made by any Loan Party or any of its Subsidiaries or Affiliates, or any officer or director thereof, contained in this Agreement
or in any other Loan Document, or in any certificate, report, statement or other document referred to or provided for in, or received
by Agent under or in connection with, this Agreement or any other Loan Document, or the validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any other Loan Document, or for any failure of any Loan Party or its Subsidiaries or any other party
to any Loan Document to perform its obligations hereunder or thereunder. No Agent-Related Person shall be under any obligation to any
Lenders (or Bank Product Provider) to ascertain or to inquire as to the observance or performance of any of the agreements contained
in, or conditions of, this Agreement or any other Loan Document, or to inspect the books and records or properties of any Loan Party
or its Subsidiaries. No Agent-Related Person shall have any liability to any Lender, and Loan Party or any of their respective Affiliates
if any request for a Loan, Letter of Credit or other extension of credit was not authorized by the applicable Borrower. Agent shall not
be required to take any action that, in its opinion or in the opinion of its counsel, may expose it to liability or that is contrary
to any Loan Document or applicable law or regulation.


 


15.4 Reliance by Agent.
Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate,
affidavit, letter, telegram, telefacsimile or other electronic method of transmission, telex or telephone message, statement or other
document or conversation believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons,
and upon advice and statements of legal counsel (including counsel to Borrowers or counsel to any Lender), independent accountants and
other experts selected by Agent. Agent shall be fully justified in failing or refusing to take any action under this Agreement or any
other Loan Document unless Agent shall first receive such advice or concurrence of the Lenders as it deems appropriate and until such
instructions are received, Agent shall act, or refrain from acting, as it deems advisable. If Agent so requests, it shall first be indemnified
to its reasonable satisfaction by the Lenders (and, if it so elects, the Bank Product Provider) against any and all liability and expense
that may be incurred by it by reason of taking or continuing to take any such action. Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement or any other Loan Document in accordance with a request or consent of the
Required Lenders and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Lenders (and
Bank Product Provider).


 


15.5 Notice of
Default or Event of Default. Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event
of Default, except with respect to defaults in the payment of principal, interest, fees, and expenses required to be paid to Agent
for the account of the Lenders and, except with respect to Events of Default of which Agent has actual knowledge, unless Agent shall
have received written notice from a Lender or Borrowers referring to this Agreement, describing such Default or Event of Default,
and stating that such notice is a “notice of default.” Agent promptly will notify the Lenders of its receipt of any such
notice or of any Event of Default of which Agent has actual knowledge. If any Lender obtains actual knowledge of any Event of
Default, such Lender promptly shall notify the other Lenders and Agent of such Event of Default. Each Lender shall be solely
responsible for giving any notices to its Participants, if any. Subject to Section 15.4, Agent shall take such action with
respect to such Default or Event of Default as may be requested by the Required Lenders in accordance with Section 9; provided, that
unless and until Agent has received any such request, Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall deem advisable.


 






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15.6 Credit Decision.
Each Lender (and Bank Product Provider) acknowledges that none of the Agent-Related Persons has made any representation or warranty to
it, and that no act by Agent hereinafter taken, including any review of the affairs of any Loan Party and its Subsidiaries or Affiliates,
shall be deemed to constitute any representation or warranty by any Agent-Related Person to any Lender (or Bank Product Provider). Each
Lender represents (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to represent) to Agent that
it has, independently and without reliance upon any Agent-Related Person and based on such due diligence, documents and information as
it has deemed appropriate, made its own appraisal of and investigation into the business, prospects, operations, property, financial
and other condition and creditworthiness of each Borrower or any other Person party to a Loan Document, and all applicable bank regulatory
laws relating to the transactions contemplated hereby, and made its own decision to enter into this Agreement and to extend credit to
Borrowers. Each Lender also represents (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to
represent) that it will, independently and without reliance upon any Agent-Related Person and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking
action under this Agreement and the other Loan Documents, and to make such investigations as it deems necessary to inform itself as to
the business, prospects, operations, property, financial and other condition and creditworthiness of each Borrower or any other Person
party to a Loan Document. Except for notices, reports, and other documents expressly herein required to be furnished to the Lenders by
Agent, Agent shall not have any duty or responsibility to provide any Lender (or Bank Product Provider) with any credit or other information
concerning the business, prospects, operations, property, financial and other condition or creditworthiness of any Borrower or any other
Person party to a Loan Document that may come into the possession of any of the Agent-Related Persons. Each Lender acknowledges (and
by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to acknowledge) that Agent does not have any duty
or responsibility, either initially or on a continuing basis (except to the extent, if any, that is expressly specified herein) to provide
such Lender (or Bank Product Provider) with any credit or other information with respect to any Borrower, its Affiliates or any of their
respective business, legal, financial or other affairs, and irrespective of whether such information came into Agent’s or its Affiliates’
or representatives’ possession before or after the date on which such Lender became a party to this Agreement (or such Bank Product
Provider entered into a Bank Product Agreement).


 


15.7 Costs and
Expenses; Indemnification. Agent may incur and pay Lender Group Expenses to the extent Agent reasonably deems necessary or
appropriate for the performance and fulfillment of its functions, powers, and obligations pursuant to the Loan Documents, including
court costs, attorneys’ fees and expenses, fees and expenses of financial accountants, advisors, consultants, and appraisers,
costs of collection by outside collection agencies, auctioneer fees and expenses, and costs of security guards or insurance premiums
paid to maintain the Collateral, whether or not Borrowers are obligated to reimburse Agent or Lenders for such expenses pursuant to
this Agreement or otherwise. Agent is authorized and directed to deduct and retain sufficient amounts from payments or proceeds of
the Collateral received by Agent to reimburse Agent for such out-of-pocket costs and expenses prior to the distribution of any
amounts to Lenders (or Bank Product Provider). In the event Agent is not reimbursed for such costs and expenses by the Loan Parties
and their Subsidiaries, each Lender hereby agrees that it is and shall be obligated to pay to Agent such Lender’s ratable
thereof. Whether or not the transactions contemplated hereby are consummated, each of the Lenders, on a ratable basis, shall
indemnify and defend the Agent-Related Persons (to the extent not reimbursed by or on behalf of Borrowers and without limiting the
obligation of Borrowers to do so) from and against any and all Indemnified Liabilities; provided, that no Lender shall be liable for
the payment to any Agent-Related Person of any portion of such Indemnified Liabilities resulting solely from such Person’s
gross negligence or willful misconduct nor shall any Lender be liable for the obligations of any Defaulting Lender in failing to
make a Revolving Loan or other extension of credit hereunder. Without limitation of the foregoing, each Lender shall reimburse Agent
upon demand for such Lender’s ratable share of any costs or out of pocket expenses (including attorneys, accountants,
advisors, and consultants fees and expenses) incurred by Agent in connection with the preparation, execution, delivery,
administration, modification, amendment, or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Agreement or any other Loan Document to the extent that Agent is not
reimbursed for such expenses by or on behalf of Borrowers. The undertaking in this Section shall survive the payment of all
Obligations hereunder and the resignation or replacement of Agent.


 






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15.8 Agent in Individual
Capacity. Wells Fargo and its Affiliates may make loans to, issue letters of credit
for the account of, accept deposits from, provide Bank Products to, acquire Equity Interests in, and generally engage in any kind of
banking, trust, financial advisory, underwriting, or other business with any Loan Party and its Subsidiaries and Affiliates and any other
Person party to any Loan Document as though Wells Fargo were not Agent hereunder, and, in each case, without notice to or consent of
the other members of the Lender Group. The other members of the Lender Group acknowledge (and by entering into a Bank Product Agreement,
each Bank Product Provider shall be deemed to acknowledge) that, pursuant to such activities, Wells Fargo or its Affiliates may receive
information regarding a Loan Party or its Affiliates or any other Person party to any Loan Documents that is subject to confidentiality
obligations in favor of such Loan Party or such other Person and that prohibit the disclosure of such information to the Lenders (or
Bank Product Provider), and the Lenders acknowledge (and by entering into a Bank Product Agreement, each Bank Product Provider shall
be deemed to acknowledge) that, in such circumstances (and in the absence of a waiver of such confidentiality obligations, which waiver
Agent will use its reasonable best efforts to obtain), Agent shall not be under any obligation to provide such information to them. The
terms “Lender” and “Lenders” include Wells Fargo in its individual capacity.


 


15.9 Successor
Agent. Agent may resign as Agent upon 30 days (ten days if an Event of Default has occurred and is continuing) prior written
notice to the Lenders (unless such notice is waived by the Required Lenders) and Borrowers (unless such notice is waived by
Borrowers or a Default or Event of Default has occurred and is continuing) and without any notice to the Bank Product Provider. If
Agent resigns under this Agreement, the Required Lenders shall be entitled, with (so long as no Event of Default has occurred and is
continuing) the consent of Borrowers (such consent not to be unreasonably withheld, delayed, or conditioned), appoint a successor
Agent for the Lenders (and the Bank Product Provider). If, at the time that Agent’s resignation is effective, it is acting as
Issuing Bank or the Swing Lender, such resignation shall also operate to effectuate its resignation as Issuing Bank or the Swing
Lender, as applicable, and it shall automatically be relieved of any further obligation to issue Letters of Credit, or to make Swing
Loans. If no successor Agent is appointed prior to the effective date of the resignation of Agent, Agent may appoint, after
consulting with the Lenders and Borrowers, a successor Agent. If Agent has materially breached or failed to perform any material
provision of this Agreement or of applicable law, the Required Lenders may agree in writing to remove and replace Agent with a
successor Agent from among the Lenders with (so long as no Event of Default has occurred and is continuing) the consent of Borrowers
(such consent not to be unreasonably withheld, delayed, or conditioned). In any such event, upon the acceptance of its appointment
as successor Agent hereunder, such successor Agent shall succeed to all the rights, powers, and duties of the retiring Agent and the
term “Agent” shall mean such successor Agent and the retiring Agent’s appointment, powers, and duties as Agent
shall be terminated. After any retiring Agent’s resignation hereunder as Agent, the provisions of this Section 15 shall
inure to its benefit as to any actions taken or omitted to be taken by it while it was Agent under this Agreement. If no successor
Agent has accepted appointment as Agent by the date which is 30 days following a retiring Agent’s notice of resignation, the
retiring Agent’s resignation shall nevertheless thereupon become effective and the Lenders shall perform all of the duties of
Agent hereunder until such time, if any, as the Lenders appoint a successor Agent as provided for above.


 






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15.10 Lender in Individual
Capacity. Any Lender and its respective Affiliates may make loans to, issue letters
of credit for the account of, accept deposits from, provide Bank Products to, acquire Equity Interests in and generally engage in any
kind of banking, trust, financial advisory, underwriting, or other business with any Loan Party and its Subsidiaries and Affiliates and
any other Person party to any Loan Documents as though such Lender were not a Lender hereunder without notice to or consent of the other
members of the Lender Group (or the Bank Product Provider). The other members of the Lender Group acknowledge (and by entering into a
Bank Product Agreement, each Bank Product Provider shall be deemed to acknowledge) that, pursuant to such activities, such Lender and
its respective Affiliates may receive information regarding a Loan Party or its Affiliates or any other Person party to any Loan Documents
that is subject to confidentiality obligations in favor of such Loan Party or such other Person and that prohibit the disclosure of such
information to the Lenders, and the Lenders acknowledge (and by entering into a Bank Product Agreement, each Bank Product Provider shall
be deemed to acknowledge) that, in such circumstances (and in the absence of a waiver of such confidentiality obligations, which waiver
such Lender will use its reasonable best efforts to obtain), such Lender shall not be under any obligation to provide such information
to them.


 


15.11 Collateral
Matters.


 


(a) The Lenders hereby
irrevocably authorize (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to authorize) Agent
to release any Lien on any Collateral (i) upon the termination of the Commitments and payment and satisfaction in full by the Loan
Parties and their Subsidiaries of all of the Obligations, (ii) constituting property being sold or disposed of if a release is
required or desirable in connection therewith and if Borrowers certify to Agent that the sale or disposition is permitted under Section
6.4 (and Agent may rely conclusively on any such certificate, without further inquiry), (iii) constituting property in which no
Loan Party or any of its Subsidiaries owned any interest at the time Agent’s Lien was granted nor at any time thereafter, (iv)
constituting property leased or licensed to a Loan Party or its Subsidiaries under a lease or license that has expired or is
terminated in a transaction permitted under this Agreement, or (v) in connection with a credit bid or purchase authorized under this Section
15.11. The Loan Parties and the Lenders hereby irrevocably authorize (and by entering into a Bank Product Agreement, each Bank
Product Provider shall be deemed to authorize) Agent, based upon the instruction of the Required Lenders, to (a) consent to the sale
of, credit bid, or purchase (either directly or indirectly through one or more entities) all or any portion of the Collateral at any
sale thereof conducted under the provisions of the Bankruptcy Code, including Section 363 of the Bankruptcy Code, (b) credit bid or
purchase (either directly or indirectly through one or more entities) all or any portion of the Collateral at any sale or other
disposition thereof conducted under the provisions of the Code, including pursuant to Sections 9-610 or 9-620 of the Code, or (c)
credit bid or purchase (either directly or indirectly through one or more entities) all or any portion of the Collateral at any
other sale or foreclosure conducted or consented to by Agent in accordance with applicable law in any judicial action or proceeding
or by the exercise of any legal or equitable remedy. In connection with any such credit bid or purchase, (i) the Obligations owed to
the Lenders and the Bank Product Provider shall be entitled to be, and shall be, credit bid on a ratable basis (with Obligations
with respect to contingent or unliquidated claims being estimated for such purpose if the fixing or liquidation thereof would not
impair or unduly delay the ability of Agent to credit bid or purchase at such sale or other disposition of the Collateral and, if
such contingent or unliquidated claims cannot be estimated without impairing or unduly delaying the ability of Agent to credit bid
at such sale or other disposition, then such claims shall be disregarded, not credit bid, and not entitled to any interest in the
Collateral that is the subject of such credit bid or purchase) and the Lenders and the Bank Product Provider whose Obligations are
credit bid shall be entitled to receive interests (ratably based upon the proportion of their Obligations credit bid in relation to
the aggregate amount of Obligations so credit bid) in the Collateral that is the subject of such credit bid or purchase (or in the
Equity Interests of the any entities that are used to consummate such credit bid or purchase), and (ii) Agent, based upon the
instruction of the Required Lenders, may accept non-cash consideration, including debt and equity securities issued by any entities
used to consummate such credit bid or purchase and in connection therewith Agent may reduce the Obligations owed to the Lenders and
the Bank Product Provider (ratably based upon the proportion of their Obligations credit bid in relation to the aggregate amount of
Obligations so credit bid) based upon the value of such non-cash consideration; provided, that Bank Product Obligations not entitled
to the application set forth in Section 2.4(b)(iii)(J) shall not be entitled to be, and shall not be, credit bid, or used in
the calculation of the ratable interest of the Lenders and Bank Product Provider in the Obligations which are credit bid. Except as
provided above, Agent will not execute and deliver a release of any Lien on any Collateral without the prior written authorization
of (y) if the release is of all or substantially all of the Collateral, all of the Lenders (without requiring the authorization of
the Bank Product Provider), or (z) otherwise, the Required Lenders (without requiring the authorization of the Bank Product
Provider). Upon request by Agent or Borrowers at any time, the Lenders will (and if so requested, the Bank Product Provider will)
confirm in writing Agent’s authority to release any such Liens on particular types or items of Collateral pursuant to this Section
15.11; provided, that (1) anything to the contrary contained in any of the Loan Documents notwithstanding, Agent shall
not be required to execute any document or take any action necessary to evidence such release on terms that, in Agent’s
opinion, could expose Agent to liability or create any obligation or entail any consequence other than the release of such Lien
without recourse, representation, or warranty, and (2) such release shall not in any manner discharge, affect, or impair the
Obligations or any Liens (other than those expressly released) upon (or obligations of Borrowers in respect of) any and all
interests retained by any Borrower, including, the proceeds of any sale, all of which shall continue to constitute part of the
Collateral. Each Lender further hereby irrevocably authorize (and by entering into a Bank Product Agreement, each Bank Product
Provider shall be deemed to irrevocably authorize) Agent, at its option and in its sole discretion, to subordinate (by contract or
otherwise) any Lien granted to or held by Agent on any property under any Loan Document (a) to the holder of any Permitted Lien on
such property if such Permitted Lien secures purchase money Indebtedness (including Capitalized Lease Obligations) which constitute
Permitted Indebtedness and (b) to the extent Agent has the authority under this Section 15.11 to release its Lien on such
property.


 






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(b) Agent shall have no
obligation whatsoever to any of the Lenders (or the Bank Product Provider) (i) to verify or assure that the Collateral exists or is
owned by a Loan Party or any of its Subsidiaries or is cared for, protected, or insured or has been encumbered, (ii) to verify or
assure that Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, or enforced or are
entitled to any particular priority, (iii) to verify or assure that any particular items of Collateral meet the eligibility criteria
applicable in respect thereof, (iv) to impose, maintain, increase, reduce, implement, or eliminate any particular reserve hereunder
or to determine whether the amount of any reserve is appropriate or not, or (v) to exercise at all or in any particular manner or
under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or
available to Agent pursuant to any of the Loan Documents, it being understood and agreed that in respect of the Collateral, or any
act, omission, or event related thereto, subject to the terms and conditions contained herein, Agent may act in any manner it may
deem appropriate, in its sole discretion given Agent’s own interest in the Collateral in its capacity as one of the Lenders
and that Agent shall have no other duty or liability whatsoever to any Lender (or Bank Product Provider) as to any of the foregoing,
except as otherwise expressly provided herein.


 


15.12 Restrictions
on Actions by Lenders; Sharing of Payments.


 


(a) Each
of the Lenders agrees that it shall not, without the express written consent of Agent, and that it shall, to the extent it is lawfully
entitled to do so, upon the written request of Agent, set off against the Obligations, any amounts owing by such Lender to any Loan Party
or its Subsidiaries or any deposit accounts of any Loan Party or its Subsidiaries now or hereafter maintained with such Lender. Each of
the Lenders further agrees that it shall not, unless specifically requested to do so in writing by Agent, take or cause to be taken any
action, including, the commencement of any legal or equitable proceedings to enforce any Loan Document against any Borrower or any Guarantor
or to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral.


 


(b) If,
at any time or times any Lender shall receive (i) by payment, foreclosure, setoff, or otherwise, any proceeds of Collateral or any payments
with respect to the Obligations, except for any such proceeds or payments received by such Lender from Agent pursuant to the terms of
this Agreement, or (ii) payments from Agent in excess of such Lender’s Pro Rata Share of all such distributions by Agent, such Lender
promptly shall (A) turn the same over to Agent, in kind, and with such endorsements as may be required to negotiate the same to Agent,
or in immediately available funds, as applicable, for the account of all of the Lenders and for application to the Obligations in accordance
with the applicable provisions of this Agreement, or (B) purchase, without recourse or warranty, an undivided interest and participation
in the Obligations owed to the other Lenders so that such excess payment received shall be applied ratably as among the Lenders in accordance
with their Pro Rata Shares; provided, that to the extent that such excess payment received by the purchasing party is thereafter recovered
from it, those purchases of participations shall be rescinded in whole or in part, as applicable, and the applicable portion of the purchase
price paid therefor shall be returned to such purchasing party, but without interest except to the extent that such purchasing party is
required to pay interest in connection with the recovery of the excess payment.


 


15.13 Agency for Perfection.
Agent hereby appoints each other Lender (and each Bank Product Provider) as its agent (and each Lender hereby accepts (and by entering
into a Bank Product Agreement, each Bank Product Provider shall be deemed to accept) such appointment) for the purpose of perfecting
Agent’s Liens in assets which, in accordance with Article 8 or Article 9, as applicable, of the Code can be perfected by possession
or control. Should any Lender obtain possession or control of any such Collateral, such Lender shall notify Agent thereof, and, promptly
upon Agent’s request therefor shall deliver possession or control of such Collateral to Agent or in accordance with Agent’s
instructions.


 


15.14 Payments by Agent
to the Lenders. All payments to be made by Agent to the Lenders (or Bank Product Provider)
shall be made by bank wire transfer of immediately available funds pursuant to such wire transfer instructions as each party may designate
for itself by written notice to Agent. Concurrently with each such payment, Agent shall identify whether such payment (or any portion
thereof) represents principal, premium, fees, or interest of the Obligations.


 




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15.15 Concerning the
Collateral and Related Loan Documents. Each member of the Lender Group authorizes
and directs Agent to enter into this Agreement and the other Loan Documents. Each member of the Lender Group agrees (and by entering
into a Bank Product Agreement, each Bank Product Provider shall be deemed to agree) that any action taken by Agent in accordance with
the terms of this Agreement or the other Loan Documents relating to the Collateral and the exercise by Agent of its powers set forth
therein or herein, together with such other powers that are reasonably incidental thereto, shall be binding upon all of the Lenders (and
such Bank Product Provider).


 


15.16 Field Examination
Reports; Confidentiality; Disclaimers by Lenders; Other Reports and Information. By
becoming a party to this Agreement, each Lender:


 


(a) is
deemed to have requested that Agent furnish such Lender, promptly after it becomes available, a copy of each field examination report
respecting any Borrower or its Subsidiaries (each, a “Report”) prepared by or at the request of Agent, and Agent shall
so furnish each Lender with such Reports,


 


(b) expressly
agrees and acknowledges that Agent does not (i) make any representation or warranty as to the accuracy of any Report, and (ii) shall not
be liable for any information contained in any Report,


 


(c) expressly
agrees and acknowledges that the Reports are not comprehensive audits or examinations, that Agent or other party performing any field
examination will inspect only specific information regarding the Borrowers and their Subsidiaries and will rely significantly upon Parent’s,
and upon Borrowers’ and their Subsidiaries’, books and records, as well as on representations of Borrowers’ personnel,


 


(d) agrees
to keep all Reports and other material, non-public information regarding the Borrowers and their Subsidiaries and their operations, assets,
and existing and contemplated business plans in a confidential manner in accordance with Section 17.9, and


 


(e) without
limiting the generality of any other indemnification provision contained in this Agreement, agrees: (i) to hold Agent and any other Lender
preparing a Report harmless from any action the indemnifying Lender may take or fail to take or any conclusion the indemnifying Lender
may reach or draw from any Report in connection with any loans or other credit accommodations that the indemnifying Lender has made or
may make to Borrowers, or the indemnifying Lender’s participation in, or the indemnifying Lender’s purchase of, a loan or
loans of Borrowers, and (ii) to pay and protect, and indemnify, defend and hold Agent, and any such other Lender preparing a Report harmless
from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including, attorneys’ fees and
costs) incurred by Agent and any such other Lender preparing a Report as the direct or indirect result of any third parties who might
obtain all or part of any Report through the indemnifying Lender.


 


In addition to the foregoing, (x) any Lender
may from time to time request of Agent in writing that Agent provide to such Lender a copy of any report or document provided by any
Borrower or its Subsidiaries to Agent that has not been contemporaneously provided by such Borrower or such Subsidiary to such
Lender, and, upon receipt of such request, Agent promptly shall provide a copy of same to such Lender, (y) to the extent that Agent
is entitled, under any provision of the Loan Documents, to request additional reports or information from any Borrower or its
Subsidiaries, any Lender may, from time to time, reasonably request Agent to exercise such right as specified in such Lender’s
notice to Agent, whereupon Agent promptly shall request of Borrowers the additional reports or information reasonably specified by
such Lender, and, upon receipt thereof from such Borrower or such Subsidiary, Agent promptly shall provide a copy of same to such
Lender, and (z) any time that Agent renders to Borrowers a statement regarding the Loan Account, Agent shall send a copy of such
statement to each Lender.


 






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15.17 Several Obligations;
No Liability. Notwithstanding that certain of the Loan Documents now or hereafter
may have been or will be executed only by or in favor of Agent in its capacity as such, and not by or in favor of the Lenders, any and
all obligations on the part of Agent (if any) to make any credit available hereunder shall constitute the several (and not joint) obligations
of the respective Lenders on a ratable basis, according to their respective Commitments, to make an amount of such credit not to exceed,
in principal amount, at any one time outstanding, the amount of their respective Commitments. Nothing contained herein shall confer upon
any Lender any interest in, or subject any Lender to any liability for, or in respect of, the business, assets, profits, losses, or liabilities
of any other Lender. Each Lender shall be solely responsible for notifying its Participants of any matters relating to the Loan Documents
to the extent any such notice may be required, and no Lender shall have any obligation, duty, or liability to any Participant of any
other Lender. Except as provided in Section 15.7, no member of the Lender Group shall have any liability for the acts of any other
member of the Lender Group. No Lender shall be responsible to any Borrower or any other Person for any failure by any other Lender (or
Bank Product Provider) to fulfill its obligations to make credit available hereunder, nor to advance for such Lender (or Bank Product
Provider) or on its behalf, nor to take any other action on behalf of such Lender (or Bank Product Provider) hereunder or in connection
with the financing contemplated herein.


 


15.18 [Reserved]


 


16. WITHHOLDING
TAXES.


 


16.1 Payments.
All payments made by any Loan Party under any Loan Document will be made free and clear of, and without deduction or withholding for,
any Taxes, except as otherwise required by applicable law, and in the event any deduction or withholding of Taxes is required, the applicable
Loan Party shall make the requisite withholding, promptly pay over to the applicable Governmental Authority the withheld tax, and furnish
to Agent as promptly as possible after the date the payment of any such Tax is due pursuant to applicable law, certified copies of tax
receipts evidencing such payment by the Loan Parties. Furthermore, if any such Tax is an Indemnified Taxes or an Indemnified Tax is so
levied or imposed, the Loan Parties agree to pay the full amount of such Indemnified Taxes and such additional amounts as may be necessary
so that every payment of all amounts due under this Agreement, any note, or Loan Document, including any amount paid pursuant to this
Section 16.1 after withholding or deduction for or on account of any Indemnified Taxes, will not be less than the amount provided
for herein. The Loan Parties will promptly pay any Other Taxes or reimburse Agent for such Other Taxes upon Agent’s demand. The Loan
Parties shall jointly and severally indemnify each Indemnified Person (as defined in Section 10.3) (collectively a “Tax
Indemnitee”) for the full amount of Indemnified Taxes arising in connection with this Agreement or any other Loan Document
or breach thereof by any Loan Party (including, without limitation, any Indemnified Taxes imposed or asserted on, or attributable to,
amounts payable under this Section 16) imposed on, or paid by, such Tax Indemnitee and all reasonable costs and expenses related
thereto (including fees and disbursements of attorneys and other tax professionals), as and when they are incurred and irrespective of
whether suit is brought, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental
Authority (other than Indemnified Taxes and additional amounts that a court of competent jurisdiction finally determines to have resulted
from the gross negligence or willful misconduct of such Tax Indemnitee). The obligations of the Loan Parties under this Section 16
shall survive the termination of this Agreement, the resignation and replacement of the Agent, and the repayment of the Obligations.


 






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16.2 Exemptions.


 


(a) If
a Lender or Participant is entitled to claim an exemption or reduction from United States withholding tax, such Lender or Participant
agrees with and in favor of Agent, to deliver to Agent (or, in the case of a Participant, to the Lender granting the participation only)
and the Administrative Borrower on behalf of all Borrowers one of the following before receiving its first payment under this Agreement:


 


(i) if
such Lender or Participant is entitled to claim an exemption from United States withholding tax pursuant to the portfolio interest exception,
(A) a statement of the Lender or Participant, signed under penalty of perjury, that it is not a (I) a “bank” as described
in Section 881(c)(3)(A) of the IRC, (II) a 10% shareholder of Administrative Borrower (within the meaning of Section 871(h)(3)(B) of the
IRC), or (III) a controlled foreign corporation related to Borrowers within the meaning of Section 864(d)(4) of the IRC, and (B) a properly
completed and executed IRS Form W-8BEN, Form W-8BEN-E or Form W-8IMY (with proper attachments as applicable);


 


(ii) if
such Lender or Participant is entitled to claim an exemption from, or a reduction of, withholding tax under a United States tax treaty,
a properly completed and executed copy of IRS Form W-8BEN or Form W-8BEN-E, as applicable;


 


(iii) if
such Lender or Participant is entitled to claim that interest paid under this Agreement is exempt from United States withholding tax because
it is effectively connected with a United States trade or business of such Lender, a properly completed and executed copy of IRS Form
W-8ECI;


 


(iv) if
such Lender or Participant is entitled to claim that interest paid under this Agreement is exempt from United States withholding tax because
such Lender or Participant serves as an intermediary, a properly completed and executed copy of IRS Form W-8IMY (including a withholding
statement and copies of the tax certification documentation for its beneficial owner(s) of the income paid to the intermediary, if required
based on its status provided on the Form W-8IMY); or


 


(v) a
properly completed and executed copy of any other form or forms, including IRS Form W-9, as may be required under the IRC or other laws
of the United States as a condition to exemption from, or reduction of, United States withholding or backup withholding tax.


 


(b) Each
Lender or Participant shall provide new forms (or successor forms) upon the expiration or obsolescence of any previously delivered forms
and to promptly notify Agent and Administrative Borrower (or, in the case of a Participant, to the Lender granting the participation only)
of any change in circumstances which would modify or render invalid any claimed exemption or reduction.


 


(c) If a Lender or
Participant claims an exemption from withholding tax in a jurisdiction other than the United States, such Lender or such Participant
agrees with and in favor of Agent and Borrowers, to deliver to Agent and Administrative Borrower (or, in the case of a Participant,
to the Lender granting the participation only) any such form or forms, as may be required under the laws of such jurisdiction as a
condition to exemption from, or reduction of, foreign withholding or backup withholding tax before receiving its first payment under
this Agreement, but only if such Lender or such Participant is legally able to deliver such forms, or the providing of or delivery
of such forms in the Lender’s reasonable judgment would not subject such Lender to any material unreimbursed cost or expense or
materially prejudice the legal or commercial position of such Lender (or its Affiliates); provided, further, that nothing in this Section
16.2(c) shall require a Lender or Participant to disclose any information that it deems to be confidential (including without
limitation, its tax returns). Each Lender and each Participant shall provide new forms (or successor forms) upon the expiration or
obsolescence of any previously delivered forms and to promptly notify Agent and Administrative Borrower (or, in the case of a
Participant, to the Lender granting the participation only) of any change in circumstances which would modify or render invalid any
claimed exemption or reduction.


 






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(d) If
a Lender or Participant claims exemption from, or reduction of, withholding tax and such Lender or Participant sells, assigns, grants
a participation in, or otherwise transfers all or part of the Obligations of Borrowers to such Lender or Participant, such Lender or Participant
agrees to notify Agent and Administrative Borrower (or, in the case of a sale of a participation interest, to the Lender granting the
participation only) of the percentage amount in which it is no longer the beneficial owner of Obligations of Borrowers to such Lender
or Participant. To the extent of such percentage amount, Agent and Administrative Borrower will treat such Lender’s or such Participant’s
documentation provided pursuant to Section 16.2(a) or 16.2(c) as no longer valid. With respect to such percentage amount,
such Participant or Assignee may provide new documentation, pursuant to Section 16.2(a) or 16.2(c), if applicable. Borrowers
agree that each Participant shall be entitled to the benefits of this Section 16 with respect to its participation in any portion of the
Commitments and the Obligations so long as such Participant complies with the obligations set forth in this Section 16 with respect
thereto.


 


(e) 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 due diligence and reporting requirements of FATCA (including those contained in Section 1471(b)
or 1472(b) of the IRC, as applicable), such Lender shall deliver to Agent (or, in the case of a Participant, to the Lender granting the
participation only) at the time or times prescribed by law and at such time or times reasonably requested by Agent (or, in the case of
a Participant, the Lender granting the participation) such documentation prescribed by applicable law (including as prescribed by Section
1471(b)(3)(C)(i) of the IRC) and such additional documentation reasonably requested by Agent (or, in the case of a Participant, the Lender
granting the participation) as may be necessary for Agent or Borrowers to comply with their obligations under FATCA and to determine that
such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment.
Solely for purposes of this clause (e), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.


 


16.3 Reductions.


 


(a) If
a Lender or a Participant is subject to an applicable withholding tax, Agent (or, in the case of a Participant, the Lender granting the
participation) may withhold from any payment to such Lender or such Participant an amount equivalent to the applicable withholding tax.
If the forms or other documentation required by Section 16.2(a) or 16.2(c) are not delivered to Agent (or, in the case of
a Participant, to the Lender granting the participation), then Agent (or, in the case of a Participant, to the Lender granting the participation)
may withhold from any payment to such Lender or such Participant not providing such forms or other documentation an amount equivalent
to the applicable withholding tax.


 


(b) If the IRS or any
other Governmental Authority of the United States or other jurisdiction asserts a claim that Agent (or, in the case of a
Participant, to the Lender granting the participation) did not properly withhold tax from amounts paid to or for the account of any
Lender or any Participant due to a failure on the part of the Lender or any Participant (because the appropriate form was not
delivered, was not properly executed, or because such Lender failed to notify Agent (or such Participant failed to notify the Lender
granting the participation) of a change in circumstances which rendered the exemption from, or reduction of, withholding tax
ineffective, or for any other reason) such Lender shall indemnify and hold Agent harmless (or, in the case of a Participant, such
Participant shall indemnify and hold the Lender granting the participation harmless) for all amounts paid, directly or indirectly,
by Agent (or, in the case of a Participant, to the Lender granting the participation), as tax or otherwise, including penalties and
interest, and including any taxes imposed by any jurisdiction on the amounts payable to Agent (or, in the case of a Participant, to
the Lender granting the participation only) under this Section 16, together with all costs and expenses (including attorneys’
fees and expenses). The obligation of the Lenders and the Participants under this subsection shall survive the payment of all
Obligations and the resignation or replacement of Agent.


 






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16.4 Refunds.
If Agent or a Lender determines, in its sole discretion, that it has received a refund of any Indemnified Taxes to which the Loan Parties
have paid additional amounts pursuant to this Section 16, so long as no Default or Event of Default has occurred and is continuing,
it shall pay over such refund to the Administrative Borrower on behalf of the Loan Parties (but only to the extent of payments made,
or additional amounts paid, by the Loan Parties under this Section 16 with respect to Indemnified Taxes giving rise to such a
refund), net of all out-of-pocket expenses of Agent or such Lender and without interest (other than any interest paid by the applicable
Governmental Authority with respect to such a refund); provided, that the Loan Parties, upon the request of Agent or such Lender,
agrees to repay the amount paid over to the Loan Parties (plus any penalties, interest or other charges, imposed by the applicable Governmental
Authority, other than such penalties, interest or other charges imposed as a result of the willful misconduct or gross negligence of
Agent or Lender hereunder as finally determined by a court of competent jurisdiction) to Agent or such Lender in the event Agent or such
Lender is required to repay such refund to such Governmental Authority. Notwithstanding anything in this Agreement to the contrary, this
Section 16 shall not be construed to require Agent or any Lender to make available its tax returns (or any other information which
it deems confidential) to Loan Parties or any other Person or require Agent or any Lender to pay any amount to an indemnifying party
pursuant to Section 16.4, the payment of which would place Agent or such Lender (or their Affiliates) in a less favorable net
after-Tax position than such Person would have been in if the Tax subject to indemnification and giving rise to such refund had not been
deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been
paid.


 


17. GENERAL
PROVISIONS.


 


17.1 Effectiveness.
This Agreement shall be binding and deemed effective when executed by each Borrower, Agent, and each Lender whose signature is provided
for on the signature pages hereof.


 


17.2 Section Headings.
Headings and numbers have been set forth herein for convenience only. Unless the contrary is compelled by the context, everything contained
in each Section applies equally to this entire Agreement.


 


17.3 Interpretation.
Neither this Agreement nor any uncertainty or ambiguity herein shall be construed against the Lender Group or any Borrower, whether under
any rule of construction or otherwise. On the contrary, this Agreement has been reviewed by all parties and shall be construed and interpreted
according to the ordinary meaning of the words used so as to accomplish fairly the purposes and intentions of all parties hereto.


 


17.4 Severability of
Provisions. Each provision of this Agreement shall be severable from every other provision
of this Agreement for the purpose of determining the legal enforceability of any specific provision.


 




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17.5 Bank Product Provider.
The Bank Product Provider in its capacity as such shall be deemed a third party beneficiary hereof and of the provisions of the other
Loan Documents for purposes of any reference in a Loan Document to the parties for whom Agent is acting. Agent hereby agrees to act as
agent for such Bank Product Provider and, by virtue of entering into a Bank Product Agreement, the applicable Bank Product Provider shall
be automatically deemed to have appointed Agent as its agent and to have accepted the benefits of the Loan Documents. It is understood
and agreed that the rights and benefits of each Bank Product Provider under the Loan Documents consist exclusively of such Bank Product
Provider’s being a beneficiary of the Liens and security interests (and, if applicable, guarantees) granted to Agent and the right
to share in payments and collections out of the Collateral as more fully set forth herein. In addition, each Bank Product Provider, by
virtue of entering into a Bank Product Agreement, shall be automatically deemed to have agreed that Agent shall have the right, but shall
have no obligation, to establish, maintain, relax, or release reserves in respect of the Bank Product Obligations and that if reserves
are established there is no obligation on the part of Agent to determine or insure whether the amount of any such reserve is appropriate
or not. In connection with any such distribution of payments or proceeds of Collateral, Agent shall be entitled to assume no amounts
are due or owing to any Bank Product Provider unless such Bank Product Provider has provided a written certification (setting forth a
reasonably detailed calculation) to Agent as to the amounts that are due and owing to it and such written certification is received by
Agent a reasonable period of time prior to the making of such distribution. Agent shall have no obligation to calculate the amount due
and payable with respect to any Bank Products, but may rely upon the written certification of the amount due and payable from the applicable
Bank Product Provider. In the absence of an updated certification, Agent shall be entitled to assume that the amount due and payable
to the applicable Bank Product Provider is the amount last certified to Agent by such Bank Product Provider as being due and payable
(less any distributions made to such Bank Product Provider on account thereof). Borrowers may obtain Bank Products from any Bank Product
Provider, although Borrowers are not required to do so. Each Borrower acknowledges and agrees that no Bank Product Provider has committed
to provide any Bank Products and that the providing of Bank Products by any Bank Product Provider is in the sole and absolute discretion
of such Bank Product Provider. Notwithstanding anything to the contrary in this Agreement or any other Loan Document, no provider or
holder of any Bank Product shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status
as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider
or holder be required (other than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of
the other Loan Documents, including as to any matter relating to the Collateral or the release of Collateral or Guarantors.


 


17.6 Debtor-Creditor
Relationship. The relationship between the Lenders and Agent, on the one hand, and
the Loan Parties, on the other hand, is solely that of creditor and debtor. No member of the Lender Group has (or shall be deemed to
have) any fiduciary relationship or duty to any Loan Party arising out of or in connection with the Loan Documents or the transactions
contemplated thereby, and there is no agency or joint venture relationship between the members of the Lender Group, on the one hand,
and the Loan Parties, on the other hand, by virtue of any Loan Document or any transaction contemplated therein.


 


17.7 Counterparts;
Electronic Execution. This Agreement may be executed in any number of counterparts and by different parties on separate
counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, when taken together,
shall constitute but one and the same Agreement. Delivery of an executed counterpart of this Agreement by telefacsimile or other
electronic method of transmission shall be equally as effective as delivery of an original executed counterpart of this Agreement.
Any party delivering an executed counterpart of this Agreement by telefacsimile or other electronic method of transmission also
shall deliver an original executed counterpart of this Agreement but the failure to deliver an original executed counterpart shall
not affect the validity, enforceability, and binding effect of this Agreement. The foregoing shall apply to each other Loan Document mutatis
mutandis.


 






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17.8 Revival
and Reinstatement of Obligations; Certain Waivers.


 


(a) If
any member of the Lender Group or any Bank Product Provider repays, refunds, restores, or returns in whole or in part, any payment or
property (including any proceeds of Collateral) previously paid or transferred to such member of the Lender Group or such Bank Product
Provider in full or partial satisfaction of any Obligation or on account of any other obligation of any Loan Party under any Loan Document
or any Bank Product Agreement, because the payment, transfer, or the incurrence of the obligation so satisfied is asserted or declared
to be void, voidable, or otherwise recoverable under any law relating to creditors’ rights, including provisions of the Bankruptcy
Code relating to fraudulent transfers, preferences, or other voidable or recoverable obligations or transfers (each, a “Voidable
Transfer”), or because such member of the Lender Group or Bank Product Provider elects to do so on the reasonable advice of
its counsel in connection with a claim that the payment, transfer, or incurrence is or may be a Voidable Transfer, then, as to any such
Voidable Transfer, or the amount thereof that such member of the Lender Group or Bank Product Provider elects to repay, restore, or return
(including pursuant to a settlement of any claim in respect thereof), and as to all reasonable costs, expenses, and attorneys’ fees
of such member of the Lender Group or Bank Product Provider related thereto, (i) the liability of the Loan Parties with respect to the
amount or property paid, refunded, restored, or returned will automatically and immediately be revived, reinstated, and restored and will
exist, and (ii) Agent’s Liens securing such liability shall be effective, revived, and remain in full force and effect, in each
case, as fully as if such Voidable Transfer had never been made. If, prior to any of the foregoing, (A) Agent’s Liens shall have
been released or terminated, or (B) any provision of this Agreement shall have been terminated or cancelled, Agent’s Liens, or such
provision of this Agreement, shall be reinstated in full force and effect and such prior release, termination, cancellation or surrender
shall not diminish, release, discharge, impair or otherwise affect the obligation of any Loan Party in respect of such liability or any
Collateral securing such liability. This provision shall survive the termination of this Agreement and the repayment in full of the Obligations.


 


(b) Anything
to the contrary contained herein notwithstanding, if Agent or any Lender accepts a guaranty of only a portion of the Obligations pursuant
to any guaranty, each Borrower hereby waive its right under Section 2822(a) of the California Civil Code or any similar laws of any other
applicable jurisdiction to designate the portion of the Obligations satisfied by the applicable guarantor’s partial payment.


 


17.9 Confidentiality.


 


(a) Agent and Lenders each
individually (and not jointly or jointly and severally) agree that material, non-public information regarding the Loan Parties and
their Subsidiaries, their operations, assets, and existing and contemplated business plans (“Confidential
Information”) shall be treated by Agent and the Lenders in a confidential manner, and shall not be disclosed by Agent and
the Lenders to Persons who are not parties to this Agreement, except: (i) to attorneys for and other advisors, accountants,
auditors, and consultants to any member of the Lender Group and to employees, directors and officers of any member of the Lender
Group (the Persons in this clause (i), “Lender Group Representatives”) on a “need to know” basis in
connection with this Agreement and the transactions contemplated hereby and on a confidential basis, (ii) to Subsidiaries and
Affiliates of any member of the Lender Group (including the Bank Product Provider); provided, that any such Subsidiary or
Affiliate shall have agreed to receive such information hereunder subject to the terms of this Section 17.9, (iii) as may be
required by regulatory authorities so long as such authorities are informed of the confidential nature of such information, (iv) as
may be required by statute, decision, or judicial or administrative order, rule, or regulation; provided, that (x) prior to
any disclosure under this clause (iv), the disclosing party agrees to provide Borrowers with prior notice thereof, to the extent
that it is practicable to do so and to the extent that the disclosing party is permitted to provide such prior notice to Borrowers
pursuant to the terms of the applicable statute, decision, or judicial or administrative order, rule, or regulation and (y) any
disclosure under this clause (iv) shall be limited to the portion of the Confidential Information as may be required by such
statute, decision, or judicial or administrative order, rule, or regulation, (v) as may be agreed to in advance in writing by
Borrowers, (vi) as requested or required by any Governmental Authority pursuant to any subpoena or other legal process; provided,
that (x) prior to any disclosure under this clause (vi) the disclosing party agrees to provide Borrowers with prior written notice
thereof, to the extent that it is practicable to do so and to the extent that the disclosing party is permitted to provide such
prior written notice to Borrowers pursuant to the terms of the subpoena or other legal process and (y) any disclosure under this
clause (vi) shall be limited to the portion of the Confidential Information as may be required by such Governmental Authority
pursuant to such subpoena or other legal process, (vii) as to any such information that is or becomes generally available to the
public (other than as a result of prohibited disclosure by Agent or the Lenders or the Lender Group Representatives), (viii) in
connection with any assignment, participation or pledge of any Lender’s interest under this Agreement; provided, that prior to
receipt of Confidential Information any such assignee, participant, or pledgee shall have agreed in writing to receive such
Confidential Information either subject to the terms of this Section 17.9 or pursuant to confidentiality requirements
substantially similar to those contained in this Section 17.9 (and such Person may disclose such Confidential Information to
Persons employed or engaged by them as described in clause (i) above), (ix) in connection with any litigation or other adversary
proceeding involving parties hereto which such litigation or adversary proceeding involves claims related to the rights or duties of
such parties under this Agreement or the other Loan Documents; provided, that prior to any disclosure to any Person (other
than any Loan Party, Agent, any Lender, any of their respective Affiliates, or their respective counsel) under this clause (ix) with
respect to litigation involving any Person (other than any Borrower, Agent, any Lender, any of their respective Affiliates, or their
respective counsel), the disclosing party agrees to provide Borrowers with prior written notice thereof, and (x) in connection with,
and to the extent reasonably necessary for, the exercise of any secured creditor remedy under this Agreement or under any other Loan
Document.


 






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(b) Anything
in this Agreement to the contrary notwithstanding, Agent may disclose information concerning the terms and conditions of this Agreement
and the other Loan Documents to loan syndication and pricing reporting services or in its marketing or promotional materials, with such
information to consist of deal terms and other information customarily found in such publications or marketing or promotional materials
and may otherwise use the name, logos, and other insignia of any Borrower or the other Loan Parties and the Commitments provided hereunder
in any “tombstone” or other advertisements, on its website or in other marketing materials of the Agent.


 


(c) Each Loan Party agrees
that Agent may make available to the Lenders materials or information provided by or on behalf of Borrowers hereunder
(“Borrower Materials”) by posting the Communications on IntraLinks, SyndTrak or a substantially similar secure
electronic transmission system (the “Platform”). The Platform is provided “as is” and “as
available.” Agent does not warrant the accuracy or completeness of the Borrower Materials, or the adequacy of the Platform and
expressly disclaim liability for errors or omissions in the communications. No warranty of any kind, express, implied or statutory,
including, without limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement of third party
rights or freedom from viruses or other code defects, is made by Agent in connection with the Borrower Materials or the Platform. In
no event shall Agent or any of the Agent-Related Persons have any liability to the Loan Parties, any Lender or any other person for
damages of any kind, including direct or indirect, special, incidental or consequential damages, losses or expenses (whether in
tort, contract or otherwise) arising out of any Loan Party’s or Agent’s transmission of communications through the
Internet, except to the extent the liability of such person is found in a final non-appealable judgment by a court of competent
jurisdiction to have resulted from such person’s gross negligence or willful misconduct. Each Loan Party further agrees that
certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public
information with respect to the Loan Parties or their securities) (each, a “Public Lender”). The Loan Parties
shall be deemed to have authorized Agent and its Affiliates and the Lenders to treat Borrower Materials marked “PUBLIC”
or otherwise at any time filed with the SEC as not containing any material non-public information with respect to the Loan Parties
or their securities for purposes of United States federal and state securities laws. All Borrower Materials marked
“PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public
Investor” (or another similar term). Agent and its Affiliates and the Lenders shall be entitled to treat any Borrower
Materials that are not marked “PUBLIC” or that are not at any time filed with the SEC as being suitable only for posting
on a portion of the Platform not marked as “Public Investor” (or such other similar term).


 


17.10 Survival.
All representations and warranties made by the Loan Parties in the Loan Documents and in the certificates or other instru¬ments delivered
in connection with or pursuant to this Agreement or any other Loan Document shall be considered to have been relied upon by the other
parties hereto and shall survive the execution and delivery of the Loan Documents and the making of any Loans and issuance of any Letters
of Credit, regardless of any investigation made by any such other party or on its behalf and notwithstanding that Agent, Issuing Bank,
or any Lender may have had notice or knowledge of any Default or Event of Default or incorrect representation or warranty at the time
any credit is extended hereunder, and shall continue in full force and effect as long as the principal of, or any accrued interest on,
any Loan or any fee or any other amount payable under this Agreement is outstand¬ing or unpaid or any Letter of Credit is outstanding
and so long as the Commitments have not expired or been terminated.


 


17.11 Patriot Act;
Due Diligence. Each Lender that is subject to the requirements of the Patriot Act
hereby notifies the Loan Parties that pursuant to the requirements of the Patriot Act, it is required to obtain, verify and record information
that identifies each Loan Party, which information includes the name and address of each Loan Party and other information that will allow
such Lender to identify each Loan Party in accordance with the Patriot Act. In addition, Agent and each Lender shall have the right to
periodically conduct due diligence on all Loan Parties, their senior management and key principals and legal and beneficial owners. Each
Loan Party agrees to cooperate in respect of the conduct of such due diligence and further agrees that the reasonable costs and charges
for any such due diligence by Agent shall constitute Lender Group Expenses hereunder and be for the account of Borrowers.


 


17.12 Integration.
This Agreement, together with the other Loan Documents, reflects the entire understanding of the parties with respect to the transactions
contemplated hereby and shall not be contradicted or qualified by any other agreement, oral or written, before the date hereof. The foregoing
to the contrary notwithstanding, all Bank Product Agreements, if any, are independent agreements governed by the written provisions of
such Bank Product Agreements, which will remain in full force and effect, unaffected by any repayment, prepayments, acceleration, reduction,
increase, or change in the terms of any credit extended hereunder, except as otherwise expressly provided in such Bank Product Agreement.


 






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17.13 Kinergy as
Agent for Borrowers. Each Borrower hereby irrevocably appoints Kinergy as the borrowing agent and attorney-in-fact for all
Borrowers (the “Administrative Borrower”) which appointment shall remain in full force and effect unless and
until Agent shall have received prior written notice signed by each Borrower that such appointment has been revoked and that another
Borrower has been appointed Administrative Borrower. Each Borrower hereby irrevocably appoints and authorizes the Administrative
Borrower (a) to provide Agent with all notices with respect to Revolving Loans and Letters of Credit obtained for the benefit of any
Borrower and all other notices and instructions under this Agreement and the other Loan Documents (and any notice or instruction
provided by Administrative Borrower shall be deemed to be given by Borrowers hereunder and shall bind each Borrower), (b) to receive
notices and instructions from members of the Lender Group (and any notice or instruction provided by any member of the Lender Group
to the Administrative Borrower in accordance with the terms hereof shall be deemed to have been given to each Borrower), and (c) to
take such action as the Administrative Borrower deems appropriate on its behalf to obtain Revolving Loans and Letters of Credit and
to exercise such other powers as are reasonably incidental thereto to carry out the purposes of this Agreement. It is understood
that the handling of the Loan Account and Collateral in a combined fashion, as more fully set forth herein, is done solely as an
accommodation to Borrowers in order to utilize the collective borrowing powers of Borrowers in the most efficient and economical
manner and at their request, and that Lender Group shall not incur liability to any Borrower as a result hereof. Each Borrower
expects to derive benefit, directly or indirectly, from the handling of the Loan Account and the Collateral in a combined fashion
since the successful operation of each Borrower is dependent on the continued successful performance of the integrated group. To
induce the Lender Group to do so, and in consideration thereof, each Borrower hereby jointly and severally agrees to indemnify each
member of the Lender Group and hold each member of the Lender Group harmless against any and all liability, expense, loss or claim
of damage or injury, made against the Lender Group by any Borrower or by any third party whosoever, arising from or incurred by
reason of (i) the handling of the Loan Account and Collateral of Borrowers as herein provided, or (ii) the Lender Group’s
relying on any instructions of the Administrative Borrower, except that Borrowers will have no liability to the relevant
Agent-Related Person or Lender-Related Person under this Section 17.13 with respect to any liability that has been finally
determined by a court of competent jurisdiction to have resulted solely from the gross negligence or willful misconduct of such
Agent-Related Person or Lender-Related Person, as the case may be.


 


17.14 Acknowledgement
and Consent to Bail-In of EEA Financial Institutions. Notwithstanding anything to
the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges
that any liability of any EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be
subject to the write-down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees
to be bound by:


 


(a) the
application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may
be payable to it by any party hereto that is an EEA Financial Institution; and


 


(b) the
effects of any Bail-in Action on any such liability, including, if applicable:


 


(i) a
reduction in full or in part or cancellation of any such liability;


 


(ii) a
conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its
parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments
of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document;
or


 


(iii) the
variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution
Authority.


 




    107


     


    

 


17.15 Amendment
and Restatement.


 


The terms, conditions, agreements,
covenants, representations and warranties set forth in the Existing Loan Agreement are, effective as of the Closing Date, amended and
restated in their entirety, and as so amended and restated, replaced and superseded by, the terms, conditions agreements, covenants, representations
and warranties set forth in this Agreement; provided, that, nothing herein or in the other Financing Agreements shall, in
any manner, be construed to constitute payment of, or impair, limit, cancel or extinguish, or constitute a novation in respect of any
of the “Obligations” existing under (and as defined in) the Existing Loan Agreement (the “Existing Obligations”)
or any other obligations, liabilities and indebtedness of the Borrowers evidenced by or arising under the Existing Loan Agreement or impair
or adversely affect the continuation of the security interests, liens and other interests in the Collateral heretofore granted, pledged
and/or assigned by the Borrowers to Agent pursuant to or in connection with the Existing Loan Agreement. All Existing Obligations of Borrowers
to Agent and Lenders, and all other loans, advances and other financial accommodations under the Existing Loan Agreement, that are outstanding
and unpaid as of the date hereof pursuant to the Existing Loan Agreement (including, without limitation, all Existing Obligations now
or hereafter arising in connection with the Existing Letters of Credit) shall be deemed Obligations of Borrowers under this Agreement
which are secured by Liens in the Collateral pursuant to the terms of this Agreement.


 


17.16 Acknowledgement
Regarding Any Supported QFCs. To the extent that the Loan Documents provide support,
through a guarantee or otherwise, for Hedge Agreements or any other agreement or instrument that is a QFC (such support, “QFC
Credit Support” and each such QFC a “Supported QFC”), the parties acknowledge and agree as follows with
respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of
the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S.
Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable
notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York
or of the United States or any other state of the United States): In the event a Covered Entity that is party to a Supported QFC (each,
a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported
QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support,
and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same
extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and
any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States.
In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution
Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be
exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under
the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state
of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect
to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.


 


17.17 Intercreditor
Agreement. This Agreement, including without limitation, Section 2.4(b) and this Article
17 hereof, is subject in all respects to the terms and conditions of the Intercreditor Agreement. In the event of any conflict between
this Agreement and the Intercreditor Agreement, the Intercreditor Agreement shall govern..


 


[Signature pages to follow.]


 




    108


     


    

 


IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be executed and delivered as of the date first above written.


 


	BORROWERS:	KINERGY MARKETING LLC, an Oregon limited liability company
	 	 
	 	By:	                      
	 	Name: 	 
	 	Title:	 
	 	 
	 	ALTO NUTRIENTS LLC, a California limited liability company
	 	 
	 	By:	                   
	 	Name:	 
	 	Title:	 


 


[SIGNATURE PAGE TO CREDIT AGREEMENT]


 




     


     


    

 


	 	WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as Agent, as Lead Arranger, as Book Runner, as Syndication Agent, as Documentation Agent, and as a Lender
	 	 	 
	 	By:	     
	 	Name:	
	 	 	Its Authorized Signatory


 


[SIGNATURE PAGE TO CREDIT AGREEMENT]


 




     


     


    

 


	 	_________________________,
	 	as a Lender
	 	 	                                           
	 	By:	 
	 	Name:	 
	 	Title:	 


 


[SIGNATURE PAGE TO CREDIT AGREEMENT]


 




     


     


    

 


Schedule 5.1


Financial Reporting


 


Deliver to Agent (and if so
requested by Agent, with copies for each Lender) each of the financial statements, reports, or other items set forth below at the following
times in form satisfactory to Agent:


 


	

within 30 days after the end of each fiscal month
    during each of Borrowers’ fiscal years,
	(a) monthly unaudited consolidated financial statements and unaudited consolidating financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ equity), all in reasonable detail, fairly presenting in all material respects the consolidated financial position and the consolidated results of the operations of Borrowers and their respective Subsidiaries as of the end of and through such fiscal month, certified to be correct by the chief financial officer of Administrative Borrower, subject to normal year-end adjustments and accompanied by a Compliance Certificate substantially in the form of Exhibit C-1 hereto, along with a schedule in form reasonably satisfactory to Agent of the calculations used in determining, as of the end of such month, whether Borrowers were, on a collective basis, in compliance with the covenant set forth in Section 7 of this Agreement for such month.
	within 50 days after the end of the first three (3) fiscal quarters of each fiscal year; provided, that, with respect to Parent, the filing of such financial statements or other information with the SEC, or the making of such reports or other information available on the SEC’s EDGAR filing system shall be deemed to have satisfied the delivery requirement 	
    (b) quarterly unaudited consolidated financial
    statements and unaudited consolidating financial statements of Borrowers their respective Subsidiaries (including in each case balance
    sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ equity), all in reasonable detail,
    fairly presenting in all material respects the consolidated financial position and the consolidated results of the operations of Borrowers
    and their respective Subsidiaries as of the end of and through such fiscal quarter, certified to be correct by the chief financial officer
    of Administrative Borrower, subject to normal quarterly and year-end adjustments and accompanied by a Compliance Certificate substantially
    in the form of Exhibit C hereto along with a schedule in form reasonably satisfactory to Agent of the calculations used in determining,
    as of the end of such fiscal quarter, whether Borrowers were in compliance with the covenants set forth in Section 7 of this Agreement
    for such fiscal quarter, and

     

    (c) quarterly unaudited consolidated financial
statements of Parent and its Subsidiaries (including balance sheets, statements of income and loss, statements of cash flow, and statements
of shareholders’ equity), all in reasonable detail, fairly presenting in all material respects the consolidated financial position
and the consolidated results of the operations of Parent and its Subsidiaries as of the end of and through such fiscal quarter, certified
to be correct by the chief financial officer of Parent, subject to normal quarterly and year-end adjustments and accompanied by a Compliance
Certificate substantially in the form of Exhibit C hereto along with a schedule in form reasonably satisfactory to Agent of the calculations
used in determining, as of the end of such fiscal quarter, whether Borrowers were in compliance with the covenants set forth in Section
7 of this Agreement for such fiscal quarter, and




 






     


     


    

 


	within 120 days after the end of each fiscal year; provided, that, with respect to Parent, the filing of such financial statements or other information with the SEC, or the making of such reports or other information available on the SEC’s EDGAR filing system shall be deemed to have satisfied the delivery requirement	
    (d) audited consolidated financial statements
    and unaudited consolidating financial statements of Borrowers and their respective Subsidiaries (including in each case balance sheets,
    statements of income and loss, statements of cash flow, and statements of shareholders’ equity), and the accompanying notes thereto,
    all in reasonable detail, fairly presenting in all material respects the consolidated financial position and the consolidated results
    of the operations of Borrowers and their respective Subsidiaries as of the end of and for such fiscal year, together with the unqualified
    opinion of independent certified public accountants with respect to the audited consolidated financial statements, which accountants shall
    be an independent accounting firm selected by Parent on behalf of Borrowers and reasonably acceptable to Agent, that such audited consolidated
    financial statements have been prepared in accordance with GAAP, and present fairly in all material respects the results of operations
    and financial condition of Borrowers and their respective Subsidiaries as of the end of and for the fiscal year then ended, and

     

    (e) audited consolidated financial statements
    of Parent and its Subsidiaries (including balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’
    equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting in all material respects the consolidated financial
    position and the consolidated results of the operations of Parent and its Subsidiaries as of the end of and for such fiscal year, together
    with the unqualified opinion of independent certified public accountants with respect to the audited consolidated financial statements,
    which accountants shall be an independent accounting firm selected by Parent and reasonably acceptable to Agent, that such audited consolidated
    financial statements have been prepared in accordance with GAAP, and present fairly in all material respects the consolidated results
    of operations and consolidated financial condition of Parent and its Subsidiaries as of the end of and for the fiscal year then ended.

	At such time as available, but in no event no later than the end of each fiscal year	(f) projected consolidated financial statements (including in each case, forecasted balance sheets and statements of income and loss, statements of cash flow, and statements of shareholders’ equity), and Borrowers and their respective Subsidiaries, on a consolidated basis, for the next fiscal year, all in reasonable detail, and in a format consistent with the projections delivered by Borrowers to Agent prior to the date hereof, together with such supporting information as Agent may reasonably request.  Such projected financial statements shall be prepared on a monthly basis for the next succeeding year.  Such projections shall represent Parent’s and Borrowers’ reasonable best estimate of the future financial performance of Borrowers for the periods set forth therein and shall have been prepared on the basis of the assumptions set forth therein which Borrowers believe are fair and reasonable as of the date of preparation in light of current and reasonably foreseeable business conditions (it being understood that actual results may differ from those set forth in such projected financial statements).  Each year Parent and Borrowers shall provide to Agent a semi-annual update with respect to such projections or at any time a Default or Event of Default exists or has occurred and is continuing, more frequently as Agent may require.



 






     


     


    

 


	Promptly after the sending or filing thereof, provided, that, the filing of such reports or other information with the SEC, or the making of such reports or other information available on the SEC’s EDGAR filing system shall be deemed to have satisfied the delivery requirement	
    (g) all reports which Parent or any of their Subsidiaries
    sends to its security holders generally,

     

    (h) all reports and registration statements which
    Parent or any of its Subsidiaries files with the Securities Exchange Commission, any national or foreign securities exchange or the National
    Association of Securities Dealers, Inc., and such other reports as Agent may hereafter specifically identify to Administrative Borrower
    that Agent reasonably requires be provided to Agent,

     

    (i) all press releases, and

     

    (j) all other statements concerning material changes
    or developments in the business of a Borrower made available by any Borrower to the public.

	upon the reasonable request of Agent and to the extent not otherwise required to be delivered herewith	(k) budgets, forecasts, projections and other information respecting the Collateral and the business of Borrowers, it being acknowledged and agreed that Agent is hereby authorized to deliver a copy of any financial statement or any other information relating to the business of Borrowers to any court or other Governmental Authority, or to any Lender or Participant or prospective Lender or Participant, or any Affiliate of any Lender or Participant; provided that any such delivery will be subject to the provisions set forth in Section 17.9 of the Credit Agreement.  
	 	Each Borrower hereby irrevocably authorizes and directs all auditors who prepared any audited statements as and when required hereunder, to deliver to Agent, at Borrowers’ expense, copies of the financial statements of any Borrower and any reports or management letters prepared by such auditors on behalf of any Borrower and to disclose to Agent and Lenders such material information as they may have regarding the business of any Borrower, all subject to the confidentiality provisions of Section 17.9.  Any documents, schedules, invoices or other papers delivered to Agent or any Lender may be destroyed or otherwise disposed of by Agent or such Lender one (1) year after the same are delivered to Agent or such Lender, except as otherwise designated by Administrative Borrower to Agent or such Lender in writing



 







     


     


    

 


Schedule 5.2


Collateral Reporting


 


Provide Agent (and if so requested
by Agent, with copies for each Lender) with each of the documents set forth below at the following times in form satisfactory to Agent:


 


	

If (x) no Increased Reporting Period is in effect,
    monthly, as soon as practicable (but in any event no later than the 15th day after the end of each month), or (y) an Increased Reporting
    Period is in effect, weekly, as soon as practicable (but in any event no later than two (2) Business Days after the end of each week,
    commencing with the first such day to occur during any Increased Reporting Period), or (z) more frequently as the Agent may reasonably
    request:
	
    (a) schedules of sales made, credits issued and
    cash received,

     

    (b) inventory reports by location and category
    (and including the amounts of Inventory and the value thereof at any leased locations and at premises of warehouses, processors or other
    third parties), and

     

    (c) an executed Borrowing Base Certificate as
    of the last Business Day of the immediately preceding period, together with all schedule, each duly completed, as required pursuant to
    the terms of the Borrowing Base Certificate.

	Monthly (no later than the 15th Business Day after the end of each month), or more frequently as Agent may reasonably request:	
    (d) perpetual inventory reports,

     

    (e) agings of accounts receivable (together with
    a reconciliation to the previous month’s aging and general ledger),

     

    (f) agings of accounts payable (and including
    information indicating the amounts owing to owners and lessors of leased premises, warehouses, processors and other third parties from
    time to time in possession of any Collateral), and

     

    (g) a schedule of all ethanol purchase and sale
    contracts or agreements constituting a Material Contract entered into, amended or terminated during the previous month.

	Promptly upon request by Agent:	
    (h) copies of customer statements, purchase orders,
    sales invoices, credit memos, remittance advices and reports, and copies of deposit slips and bank statements,

     

    (i) copies of shipping and delivery documents,

     

    (j) copies of purchase orders, invoices and delivery
    documents for Inventory and Equipment acquired by any Borrower, and

     

    (k) such other reports as to the Collateral as
    Agent shall reasonably request from time to time.

     

	 	
    It being acknowledged and agreed that, with respect
    to each of the foregoing, if Borrowers’ records or reports of the Collateral are prepared or maintained by an accounting service,
    contractor, shipper or other agent, Borrowers hereby irrevocably authorize such service, contractor, shipper or agent to deliver such
    records, reports, and related documents to Agent and to follow Agent’s instructions with respect to further services at any time
    that an Event of Default exists or has occurred and is continuing.

     



 




     


     


    


 


Exhibit B


to


Amendment No. 6 to Credit Agreement 


 


Updated Schedules to Credit Agreement


 


See attached.