Vertex Energy, Inc. 8-K


 


Exhibit 10.2


  












 


ABL
CREDIT AGREEMENT


 


Dated
as of February 1, 2017


 


among


 


VERTEX
ENERGY OPERATING, LLC,

as the Lead Borrower

For

The Borrowers Named Herein


 


The
Guarantors Named Herein


 


ENCINA
BUSINESS CREDIT, LLC

as Agent


 


and


 


The
Lenders Party Hereto


 





 



 




    


     

    

 


TABLE
OF CONTENTS


 




	Section	Page
	ARTICLE
    I DEFINITIONS AND ACCOUNTING TERMS	1
	1.01.   Defined
    Terms	1
	1.02.   Other
    Interpretive Provisions	46
	1.03.   Accounting
    Terms	46
	1.04.   Rounding	47
	1.05.   Times
    of Day	47
	ARTICLE
    II THE COMMITMENTS AND CREDIT EXTENSIONS	47
	2.01.   Revolving
    Loans; Reserves	47
	2.02.   Borrowings
    of Loans.	48
	2.03.   Swing
    Line Loans	49
	2.04.   Mandatory
    Prepayments	52
	2.05.   Termination
    of Commitments	53
	2.06.   Repayment
    and Amortization of Obligations	53
	2.07.   Interest	53
	2.08.   Fees	54
	2.09.   Computation
    of Interest and Fees	55
	2.10.   Evidence
    of Debt	55
	2.11.   Payments
    Generally; Agent’s Clawback	56
	2.12.   Sharing
    of Payments by Lenders	57
	2.13.   Settlement
    Amongst Lenders	58
	2.14.   Defaulting
    Lenders	58
	ARTICLE
    III TAXES, YIELD PROTECTION AND ILLEGALITY; APPOINTMENT OF LEAD BORROWER	61
	3.01.   Taxes	61
	3.02.   Illegality	66
	3.03.   Inability
    to Determine Rates	66
	3.04.   Increased
    Costs; Reserves on LIBOR Rate Loans	66
	3.05.   Compensation
    for Losses	68
	3.06.   Mitigation
    Obligations; Replacement of Lenders.	68
	3.07.   Survival	68
	3.08.   Designation
    of Lead Borrower as Borrowers’ Agent	69
	ARTICLE
    IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS	69
	4.01.   Conditions
    of Initial Credit Extension	69
	4.02.   Conditions
    to Certain Credit Extensions	75



 






    (i)


     

    

 


	ARTICLE
    V REPRESENTATIONS AND WARRANTIES	75
	5.01.   Existence,
    Qualification and Power	75
	5.02.   Authorization;
    No Contravention	76
	5.03.   Governmental
    Authorization; Other Consents	76
	5.04.   Binding
    Effect	76
	5.05.   Financial
    Statements; No Material Adverse Effect	76
	5.06.   Litigation	77
	5.07.   No
    Default	77
	5.08.   Ownership
    of Property; Liens	77
	5.09.   Environmental
    Compliance	78
	5.10.   Insurance	79
	5.11.   Taxes	79
	5.12.   ERISA
    Compliance	79
	5.13.   Subsidiaries;
    Equity Interests	80
	5.14.   Margin
    Regulations; Investment Company Act	80
	5.15.   Disclosure	81
	5.16.   Compliance
    with Laws	81
	5.17.   Intellectual
    Property; Licenses, Etc	81
	5.18.   Labor
    Matters	81
	5.19.   Security
    Documents	82
	5.20.   Solvency	82
	5.21.   Deposit
    Accounts; Credit Card Arrangements	83
	5.22.   Brokers	83
	5.23.   Customer
    and Trade Relations	83
	5.24.   Material
    Contracts	83
	5.25.   Casualty	83
	5.26.   Regulation
    H	83
	ARTICLE
    VI AFFIRMATIVE COVENANTS	84
	6.01.   Financial
    Statements	84
	6.02.   Certificates;
    Other Information	85
	6.03.   Notices	88
	6.04.   Payment
    of Obligations	88
	6.05.   Preservation
    of Existence, Etc	88
	6.06.   Maintenance
    of Properties	88
	6.07.   Maintenance
    of Insurance	88
	6.08.   Compliance
    with Laws	90
	6.09.   Books
    and Records; Accountants	90
	6.10.   Inspection
    Rights	90
	6.11.   Additional
    Loan Parties	91
	6.12.   Cash
    Management.	92
	6.13.   Information
    Regarding the Collateral	93
	6.14.   Physical
    Inventories	93
	6.15.   Environmental
    Laws	94
	6.16.   Further
    Assurances	94



 






    (ii)


     

    

 


	6.17.   Compliance
    with Terms of Leaseholds	95
	6.18.   Material
    Contracts	95
	6.19.   Delivery
    of Organizational Documents	95
	6.20.   Use
    of Loan Proceeds	95
	6.21.   Accounts
    Relating to Contracts with the United States of America	95
	6.22.   Post-Closing
    Covenant	96
	ARTICLE
    VII NEGATIVE COVENANTS	96
	7.01.   Liens	96
	7.02.   Investments	96
	7.03.   Indebtedness;
    Disqualified Stock; Equity Issuances	96
	7.04.   Fundamental
    Changes	96
	7.05.   Dispositions	97
	7.06.   Restricted
    Payments	97
	7.07.   Prepayments
    of Indebtedness	97
	7.08.   Change
    in Nature of Business	98
	7.09.   Transactions
    with Affiliates	98
	7.10.   Burdensome
    Agreements	99
	7.11.   Use
    of Proceeds	99
	7.12.   Amendment
    of Material Documents	99
	7.13.   Fiscal
    Year	99
	7.14.   Deposit
    Accounts	99
	7.15.   Capital
    Expenditures	99
	7.16.   Minimum
    Availability	100
	7.17.   Limitations
    on E-Source	100
	ARTICLE
    VIII EVENTS OF DEFAULT AND REMEDIES	100
	8.01.   Events
    of Default	100
	8.02.   Remedies
    Upon Event of Default	103
	8.03.   Application
    of Funds	104
	ARTICLE
    IX THE AGENT	105
	9.01.   Appointment
    and Authority	105
	9.02.   Rights
    as a Lender	105
	9.03.   Exculpatory
    Provisions	105
	9.04.   Reliance
    by Agent	106
	9.05.   Delegation
    of Duties	107
	9.06.   Resignation
    of Agent	107
	9.07.   Non-Reliance
    on Agent and Other Lenders	108
	9.08.   No
    Other Duties, Etc	108
	9.09.   Agent
    May File Proofs of Claim	108
	9.10.   Collateral
    and Guaranty Matters	109
	9.11.   Notice
    of Transfer	109
	9.12.   Reports
    and Financial Statements	109



 






    (iii)


     

    

 


	9.13.   Agency
    for Perfection	110
	9.14.   Indemnification
    of Agent	110
	9.15.   Relation
    among Lenders	111
	ARTICLE
    X MISCELLANEOUS	111
	10.01.   Amendments,
    Etc	111
	10.02.   Notices;
    Effectiveness; Electronic Communications	113
	10.03.   No
    Waiver; Cumulative Remedies	115
	10.04.   Expenses;
    Indemnity; Damage Waiver	116
	10.05.   Payments
    Set Aside	117
	10.06.   Successors
    and Assigns	117
	10.07.   Treatment
    of Certain Information; Confidentiality	122
	10.08.   Right
    of Setoff	123
	10.09.   Interest
    Rate Limitation	123
	10.10.   Counterparts;
    Integration; Effectiveness	124
	10.11.   Survival	124
	10.12.   Severability	124
	10.13.   Replacement
    of Lenders	125
	10.14.   Governing
    Law; Jurisdiction; Etc.	125
	10.15.   Waiver
    of Jury Trial	126
	10.16.   No
    Advisory or Fiduciary Responsibility	127
	10.17.   USA
    PATRIOT Act Notice	127
	10.18.   Foreign
    Asset Control Regulations	128
	10.19.   Time
    of the Essence	128
	10.20.   Press
    Releases	128
	10.21.   Additional
    Waivers	128
	10.22.   No
    Strict Construction	130
	10.23.   Attachments	130
	10.24.   Electronic
    Execution of Assignments and Certain Other Documents	130
	10.25.   ENTIRE
    AGREEMENT	130
	10.26.   Keepwell	130
	10.27.   Acknowledgement
    and Consent to Bail-In of EEA Financial Institutions	131
	10.28.   Intercreditor
    Agreement	131



 


	SIGNATURES 	S-1,
    3, 4


 




    (iv)


     

    

 





	SCHEDULES
	 
	1.01	Borrowers
	2.01	Commitments and Applicable Percentages
	5.01	Loan Parties Organizational Information
	5.06	Litigation
	5.08(b)(1)	Owned Real Estate
	5.08(b)(2)	Leased Real Estate
	5.10	Insurance
	5.13	Subsidiaries; Other Equity Investments; Equity
    Interests in the Borrower
	5.17	Intellectual Property Matters
	5.18	Collective Bargaining Agreements
	5.21(a)	DDAs
	5.21(b)	Credit Card Arrangements
	5.22	Brokers
	5.24	Material Contracts
	6.02	Financial and Collateral Reporting
	6.22	Post-Closing Matters
	7.01	Existing Liens
	7.02	Existing Investments
	7.03	Existing Indebtedness
	7.09	Affiliate Transactions
	7.17	E-Source Guaranty
	10.02	Agent’s Office; Certain Addresses for
    Notices
	10.06	Eligible Assignee Exceptions



 


	EXHIBITS	 
	 	Form of
	A	Notice of Borrowing
	B	Swing Line Loan Notice
	C	Compliance Certificate
	D	Assignment and Assumption
	E	Borrowing Base Certificate
	F-1 through F-4	U.S. Tax Compliance Certificates
	G	Perfection Certificate
	H	Form of Note




 




    (v)


     

    

 


CREDIT
AGREEMENT


 


This
CREDIT AGREEMENT (“Agreement”) is entered into as of February 1, 2017, among VERTEX ENERGY OPERATING, LLC,
a Texas limited liability company (the “Lead Borrower”), the Persons named on Schedule 1.01 hereto (collectively,
the “Borrowers”), the Guarantors, each Lender (as defined herein) from time to time party hereto, and ENCINA BUSINESS
CREDIT, LLC, as Agent (as defined herein).


 


The
Borrowers have requested that the Lenders provide a revolving credit facility, and the Lenders have indicated their willingness
to lend on the terms and conditions set forth herein.


 


In
consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:


 


ARTICLE
I

DEFINITIONS AND ACCOUNTING TERMS


 


1.01.          Defined
Terms.    As used in this Agreement, the following terms shall have the meanings set forth below:


 


“ACH”
means automated clearing house transfers.


 


“Accommodation
Payment” as defined in Section 10.21(c).


 


“Account”
means “accounts” as defined in the UCC, and also means a right to payment of a monetary obligation, whether or not
earned by performance, (a) for property that has been or is to be sold, leased, licensed, assigned, or otherwise disposed of,
(b) for services rendered or to be rendered, (c) for a policy of insurance issued or to be issued, (d) for a secondary obligation
incurred or to be incurred, (e) for energy provided or to be provided, (f) for the use or hire of a vessel under a charter or
other contract, (g) arising out of the use of a credit or charge card or information contained on or for use with the card, or
(h) as winnings in a lottery or other game of chance operated or sponsored by a state, governmental unit of a state, or person
licensed or authorized to operate the game by a state or governmental unit of a state.


 


“Account
Control Agreement” has the meaning specified in the Security Agreement.


 


“Acquisition”
means, with respect to any Person (a) a purchase of a Controlling interest in, the Equity Interests of any other Person, (b) a
purchase or other acquisition of all or substantially all of the assets or properties of, another Person or of any business unit
of another Person or (c) any merger or consolidation of such Person with any other Person or other transaction or series of transactions
resulting in the acquisition of all or substantially all of the assets, or a Controlling interest in the Equity Interests, of
any Person, in each case in any transaction or group of transactions which are part of a common plan.


 


“Act”
shall have the meaning provided in Section 10.17.


 


“Administrative
Questionnaire” means an Administrative Questionnaire in a form supplied by the Agent.


 






    -1-


     

    

 


“Affiliate”
means, with respect to any Person, (i) another Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified, (ii) any director, officer, managing member, partner,
trustee, or beneficiary of that Person, (iii) any other Person directly or indirectly holding 10% or more of any class of the
Equity Interests of that Person, and (iv) any other Person 10% or more of any class of whose Equity Interests is held directly
or indirectly by that Person.


 


“Agent”
means Encina in its capacity as administrative agent and collateral agent under any of the Loan Documents, or any successor thereto.


 


“Agent
Parties” shall have the meaning specified in Section 10.02(c).


 


“Agent’s
Office” means the Agent’s address set forth on Schedule 10.02, or such other address as the Agent may from
time to time notify the Lead Borrower and the Lenders.


 


“Aggregate
Commitments” means the sum of the Commitments of all the Lenders. As of the Closing Date, the Aggregate Commitments are
$10,000,000.


 


“Agreement”
means this Credit Agreement.


 


“Allocable
Amount” has the meaning specified in Section 10.21(c).


 


“Applicable
Lenders” means the Required Lenders, all affected Lenders, or all Lenders, as the context may require.


 


“Applicable
Margin” means, with respect to Revolving Loans, (a) with respect to LIBOR Rate Loans, a LIBOR margin of 6.50 percentage
points per annum, and (b) with respect to Base Rate Loans, a Base Rate margin of 5.50 percentage points per annum.


 


“Applicable
Percentage” means with respect to any Lender at any time, the percentage (carried out to the ninth decimal place) of the
Aggregate Commitments represented by such Lender’s Commitment at such time, subject to adjustment provided in Section
2.14; provided, that if the commitment of each Lender to make Loans has been terminated pursuant to Section 2.05 or
Section 8.02 or if the Aggregate Commitments have expired, then the Applicable Percentage of each Lender with respect to
Loans shall be determined based on the Applicable Percentage of such Lender most recently in effect, giving effect to any subsequent
assignments. The initial Applicable Percentage of each Lender is set forth opposite the name of such Lender on Schedule 2.01
or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.


 


“Applicable
Rate” means, at any time of calculation, a per annum rate equal to the Applicable Margin for Loans which are LIBOR Rate
Loans.


 


“Appraised
Value” means with respect to Inventory, the appraised orderly liquidation value, net of costs and expenses to be incurred
in connection with any such liquidation, which value is expressed as a percentage of Cost of Inventory as set forth in the inventory
stock ledger of the Lead Borrower, which value shall be determined from time to time by the most recent appraisal undertaken by
an independent appraiser engaged by the Agent.


 






    -2-


     

    

 


“Approved
Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender (c) an entity or
an Affiliate of an entity that administers or manages a Lender, or (d) the same investment advisor or an advisor under common
control with such Lender, Affiliate or advisor, as applicable.


 


“Assignee
Group” means two or more Eligible Assignees that are Affiliates of one another or two or more Approved Funds managed by
the same investment advisor.


 


“Assignment
and Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of
any party whose consent is required by Section 10.06(b)), and accepted by the Agent, in substantially the form of Exhibit
D or any other form approved by the Agent.


 


“Attributable
Indebtedness” means, on any date, (a) in respect of any Capital Lease Obligation of any Person, the capitalized amount thereof
that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, and (b) in respect of any
Synthetic Lease Obligation, the capitalized amount of the remaining lease or similar payments under the relevant lease or other
applicable agreement or instrument that would appear on a balance sheet of such Person prepared as of such date in accordance
with GAAP if such lease, agreement or instrument were accounted for as a capital lease.


 


“Audited
Financial Statements” means the audited consolidated balance sheet of the Parent and its Subsidiaries for the Fiscal Year
ended December 31, 2015, and the related consolidated statements of income or operations, Shareholders’ Equity and cash
flows for such Fiscal Year of the Parent and its Subsidiaries, including the notes thereto.


 


“Availability”
means, as of any date of determination thereof by the Agent, the result, if a positive number, of:


 


(a)          The
Loan Cap


Minus





(b)          The
Total Revolving Outstandings.


 


In
calculating Availability at any time and for any purpose under this Agreement, the Lead Borrower shall certify to the Agent that
all accounts payable and Taxes are being paid on a timely basis as required hereunder.


 


“Availability
Period” means the period from and including the Closing Date to the earliest of (a) the Maturity Date, (b) the date of termination
of the Aggregate Commitments pursuant to Section 2.05, and (c) the date of termination of the Aggregate Commitments pursuant
to Section 8.02.


 






    -3-


     

    

 


“Availability
Reserves” means, without duplication of any other Reserves or items that are otherwise addressed or excluded through eligibility
criteria, such reserves as the Agent from time to time determines in its discretion as being appropriate (a) to reflect the impediments
to the Agent’s ability to realize upon the Collateral, (b) to reflect claims and liabilities that the Agent determines will
need to be satisfied in connection with the realization upon the Collateral, (c) to reflect criteria, events, conditions, contingencies
or risks which adversely affect any component of the Borrowing Base, or the assets, business, financial performance or financial
condition of any Loan Party, or (d) to reflect that a Default or an Event of Default then exists. Without limiting the generality
of the foregoing, Availability Reserves may include, in the Agent’s discretion, (but are not limited to) reserves based
on: (i) rent, (ii) customs duties, and other costs to release Inventory which is being imported into the United States, (iii) outstanding
Taxes and other governmental charges, including, without limitation, ad valorem, real estate, personal property, sales, claims
of the PBGC and other Taxes which may have priority over the interests of the Agent in the Collateral, (iv) salaries, wages, other
compensation and benefits due to employees of any Borrower, (v) Customer Credit Liabilities, (vi) customer deposits, (viii) reserves
for reasonably anticipated changes in the Appraised Value of Eligible Inventory between appraisals, (viii) warehousemen’s
or bailee’s charges and other Permitted Encumbrances which may have priority over the interests of the Agent in the Collateral,
(ix) Cash Management Reserves, (x) with respect to royalties payable in respect of licensed merchandise and (xi) Shrink Reserve.
Notwithstanding anything herein to the contrary, Availability Reserves with respect to the Terminaling Agreement shall not exceed
one month’s rent, fees and other amounts payable with respect to such agreement (as determined by the Agent in its discretion)
provided that (A) no payment due under the Terminaling Agreement from Vertex Refining LA, LLC and any other Loan Party is overdue
and (B) Magellan Terminals Holdings, L.P. has not issued a notice of default under the Terminaling Agreement and no default or
event of default by Vertex Refining LA, LLC or any other Loan Party otherwise exists thereunder.


 


“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
Products” means any services of facilities provided to any Loan Party by the Agent, any Lender, or any of their respective
Affiliates, including, without limitation, on account of (a) Swap Contracts, (b) leasing, (c) factoring, and (d) supply chain
finance services (including, without limitation, trade payable services and supplier accounts receivable purchases), but excluding
Cash Management Services.


 


“Base
Rate” means for any day a fluctuating rate per annum equal to the highest of (a) the rate of interest in effect for such
day as publicly announced from time to time by Reference Bank as its “prime rate”; (b) the Federal Funds Rate for
such day, plus 0.50%; and (c) the LIBOR Rate for a one month interest period as determined on such day, plus 1.00% (and, if the
highest such rate is below zero, the Base Rate shall be deemed to be zero). Any change in Reference Bank’s prime rate, the
Federal Funds Rate or the LIBOR Rate, respectively, shall take effect at the opening of business on the day specified in the public
announcement of such change.


 


“Base
Rate Loan” means a Loan that bears interest based on the Base Rate.


 






    -4-


     

    

 


“Borrower
Materials” has the meaning specified in Section 6.02.


 


“Borrowers”
has the meaning specified in the introductory paragraph hereto.


 


“Borrowing”
means a Revolving Borrowing or a Swing Line Borrowing, as the context may require.


 


“Borrowing
Base” means, at any time of calculation, an amount equal to:


 


(a)          the
amount equal to:


 


the
lesser of (A) the Cost of Eligible Inventory, net of Inventory Reserves, multiplied by 85% of the Appraised Value of Eligible
Inventory, or (B) the Cost of Eligible Inventory, net of Inventory Reserves, multiplied by the Inventory Advance Rate,
but in no event to exceed the Inventory Sublimit,


 


plus


 


(b)          the
face amount of Eligible Trade Receivables (net of Receivables Reserves applicable thereto) multiplied by the Eligible Trade
Receivables Advance Rate;


 


minus



 


(c)          the
then-current amount of all Availability Reserves.


 


Notwithstanding
anything to the contrary contained herein, the Agent reserves the right to amend, from time to time, the Inventory Advance Rate
and/or the Eligible Trade Receivables Advance Rate in its commercially reasonable discretion.


 


“Borrowing
Base Certificate” means a certificate substantially in the form of Exhibit E hereto (with such changes therein as
may be required by the Agent to reflect the components of and reserves against the Borrowing Base as provided for hereunder from
time to time), executed and certified as accurate and complete by a Responsible Officer of the Lead Borrower which shall include
appropriate exhibits, schedules, supporting documentation, and additional reports as reasonably requested by the Agent.


 


“Business”
means the business of operating an environmental services company that recycles industrial waste streams and off-specification
commercial chemical products substantially as conducted by Lead Borrower as of the date hereof.


 


“Business
Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the
Laws of, or are in fact closed in, the state where the Agent’s Office is located and, if such day relates to any LIBOR Rate
Loan, means any such day on which dealings in Dollar deposits are conducted by and between banks in the London interbank market.


 






    -5-


     

    

 


“Capital
Expenditures” means, with respect to any Person for any period, (a) all expenditures made (whether made in the form of cash
or other property) or costs incurred for the acquisition or improvement of fixed or capital assets of such Person (excluding normal
replacements and maintenance which are properly charged to current operations), in each case that are (or should be) set forth
as capital expenditures in a Consolidated statement of cash flows of such Person for such period, in each case prepared in accordance
with GAAP, and (b) Capital Lease Obligations incurred by a Person during such period.


 


“Capital
Lease Obligations” means, with respect to any Person for any period, the obligations of such Person to pay rent or other
amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as liabilities on a balance sheet of such Person under GAAP
and the amount of which obligations shall be the capitalized amount thereof determined in accordance with GAAP.


 


“Cash
Management Reserves “ means such reserves as the Agent, from time to time, determines in its discretion as being appropriate
to reflect the reasonably anticipated liabilities and obligations of the Loan Parties with respect to Cash Management Services
then provided or outstanding.


 


“Cash
Management Services” means any cash management services provided to any Loan Party by the Agent or any Lender or any of
their respective Affiliates, including, without limitation, (a) ACH transactions, (b) controlled disbursement services, treasury,
depository, overdraft, and electronic funds transfer services, (c) credit card processing services, and (d) credit or debit cards.


 


“CERCLA”
means the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601 et seq.


 


“CERCLIS”
means the Comprehensive Environmental Response, Compensation, and Liability Information System maintained by the United States
Environmental Protection Agency.


 


“CFC”
means a Person that is a controlled foreign corporation under Section 957 of the Code.


 


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


 






    -6-


     

    

 


“Change
of Control” means an event or series of events by which:


 


(a)          (i)
Benjamin P. Cowart and Chris Carlson shall cease to own and control legally and beneficially (free and clear of all Liens), collectively,
either directly or indirectly, equity securities in Parent representing more than 15% of the combined voting power of all of Equity
Interests entitled to vote for members of the board of directors or equivalent governing body of Parent on a fully-diluted basis
(and taking into account all such securities that Benjamin P. Cowart and Chris Carlson collectively have the right to acquire
pursuant to any option right (as defined in clause (b) below)), or (ii) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or group (within the meaning of the Securities Exchange Act of 1934 and the rules of
the SEC thereunder as in effect on the Closing Date), of Equity Interests representing more than 30% of the aggregate ordinary
voting power represented by the issued and outstanding Equity Interests of Parent;


 


(b)          during
any period of 12 consecutive months, a majority of the members of the board of directors or other equivalent governing body of
the Parent and Lead Borrower cease to be composed of individuals (i) who were members of that board or equivalent governing body
on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by
individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that
board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was
approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least
a majority of that board or equivalent governing body;


 


(c)          any
“change in control” or “sale” or “disposition” or similar event as defined in any Organizational
Document of any Loan Party or in any Material Contract, or any document governing Material Indebtedness of any Loan Party; or


 


(d)          Parent
fails at any time to own, directly or indirectly, 100% of the Equity Interests of each other Loan Party free and clear of all
Liens (other than the Liens in favor of the Agent), except where such failure is as a result of a transaction permitted by the
Loan Documents.


 


“Closing
Date” means the first date all the conditions precedent in Section 4.01 are satisfied or waived in accordance with Section
10.01.


 


“Closing
Date Mortgaged Property” means the Real Estate commonly referred to as (a) 5000 River Rd., Marrero, Louisiana, and (b) 4021
East 5th Avenue, Columbus, Ohio.


 


“CMT
Assets” means the assets located at 200 Atlantic Pipeline Rd., Baytown, TX 77520 as of the Closing Date, excluding, however,
any inventory in transit in the ordinary course of business.


 


“Code”
means the Internal Revenue Code of 1986, and the regulations promulgated thereunder, as amended and in effect.


 






    -7-


     

    

 


“Collateral”
means any and all “Collateral” or “Mortgaged Property” as defined in any applicable Security Document
and all other property that is or is intended under the terms of the Security Documents to be subject to Liens in favor of the
Agent.


 


“Collateral
Access Agreement” means an agreement reasonably satisfactory in form and substance to the Agent executed by (a) a bailee
or other Person in possession of Collateral, and/or (b) any landlord of Real Estate leased by any Loan Party, pursuant to which
such Person (i) acknowledges the Agent’s Lien on the Collateral, (ii) releases or subordinates such Person’s Liens
in the Collateral held by such Person or located on such Real Estate, (iii) provides the Agent with access to the Collateral held
by such bailee or other Person or located in or on such Real Estate, (iv) as to any landlord, provides the Agent with a reasonable
time to sell and dispose of the Collateral from such Real Estate, and (v) makes such other agreements with the Agent as the Agent
may reasonably require, including leasehold mortgagee protections in favor of Agent to the extent such Real Estate constitutes
a Mortgaged Property.


 


“Collection
Account” has the meaning provided in Section 6.12(c).


 


“Commitment”
means, as to each Lender, its obligation to (a) make Revolving Loans to the Borrowers pursuant to Section 2.01 and (b) purchase
participations in Swing Line Loans, in an aggregate principal amount at any one time outstanding not to exceed the amount set
forth opposite such Lender’s name on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes
a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.


 


“Commitment
Fee” has the meaning specified in Section 2.08(a).


 


“Commitment
Fee Percentage” means 0.50% per annum.


 


“Commodity
Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.).


 


“Compliance
Certificate” means a certificate substantially in the form of Exhibit C.


 


“Consent”
means actual consent given by a Lender from whom such consent is sought, or the passage of seven (7) Business Days from receipt
of written notice to a Lender from the Agent of a proposed course of action to be followed by the Agent without such Lender’s
giving the Agent written notice of that Lender’s objection to such course of action.


 


“Consolidated”
means, when used to modify a financial term, test, statement, or report of a Person, the application or preparation of such term,
test, statement or report (as applicable) based upon the consolidation, in accordance with GAAP, of the financial condition or
operating results of such Person and its Subsidiaries.


 


“Consolidated
EBITDA” means, at any date of determination, an amount equal to Consolidated Net Income for the most recently completed
Measurement Period, plus (a) the following to the extent deducted in calculating such Consolidated Net Income: (i) Consolidated
Interest Charges, (ii) the provision for Federal, state, local and foreign income Taxes, (iii) depreciation and amortization
expense, (iv) severance costs, relocation costs, transition, integration, and consolidation related operation costs, losses and
expenses, and (v) other non-recurring expenses reducing such Consolidated Net Income which do not represent a cash item in such
period or any future period (in each case of or by Parent and its Subsidiaries (other than E-Source) for such Measurement Period),
minus (b) the following to the extent included in calculating such Consolidated Net Income: (i) Federal, state, local and foreign
income tax credits and (ii) all non-cash items increasing Consolidated Net Income (in each case of or by Parent and its Subsidiaries
(other than E-Source) for such Measurement Period), all as determined on a Consolidated basis in accordance with GAAP.


 






    -8-


     

    

 


“Consolidated
Fixed Charge Coverage Ratio” means, at any date of determination, the ratio of (a) (i) Consolidated EBITDA for such period
minus (ii) Capital Expenditures made during such period, minus (iii) the aggregate amount of Federal, state, local and foreign
income taxes paid in cash during such period (but not less than zero) to (b) the sum of (i) Debt Service Charges plus (ii) the
aggregate amount of all Restricted Payments paid in cash, in each case, of or by Parent and its Subsidiaries (other than E-Source)
for the most recently completed Measurement Period, all as determined on a Consolidated basis in accordance with GAAP.


 


“Consolidated
Interest Charges” means, for any Measurement Period, the sum of (a) all interest, premium payments, debt discount, fees,
charges and related expenses in connection with borrowed money (including capitalized interest) or in connection with the deferred
purchase price of assets, in each case to the extent treated as interest in accordance with GAAP, including, without limitation,
all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing
and net costs under Swap Contracts, and (b) the portion of rent expense with respect to such period under Capital Lease Obligations
that is treated as interest in accordance with GAAP, in each case of or by the Parent and its Subsidiaries (other than E-Source)
for the most recently completed Measurement Period, all as determined on a Consolidated basis in accordance with GAAP.


 


“Consolidated
Net Income” means the net income of the Parent and its Subsidiaries (other than E-Source) determined on a Consolidated basis
in accordance with GAAP.


 


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


 


“Control”
means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled”
have meanings correlative thereto.


 


“Controlled
Account” has the meaning provided in Section 6.12(a)(ii).


 


“Controlled
Account Bank” means each bank with whom deposit accounts are maintained in which any funds of any of the Loan Parties from
one or more DDAs are concentrated and with whom an Account Control Agreement has been, or is required to be, executed in accordance
with the terms hereof.


 


“Convert”,
“Conversion” and “Converted” each refers to a conversion of Revolving Loans of one Type into Revolving
Loans of the other Type.


 






    -9-


     

    

 


“Cost”
means the lower of cost (on a first in, first out basis) or market value of Inventory, based upon the Borrowers’ accounting
practices, known to the Agent, which practices are in effect on the Closing Date as such calculated cost is determined from invoices
received by the Borrowers, the Borrowers’ purchase journals or the Borrowers’ stock ledger.


 


“Credit
Extensions” mean a Borrowing.


 


“Credit
Party” or “Credit Parties” means (a) individually, (i) each Lender and its Affiliates, (ii) the Agent, (iii)
each beneficiary of each indemnification obligation undertaken by any Loan Party under any Loan Document, (iv) any other Person
to whom Obligations under this Agreement and other Loan Documents are owing, and (v) the successors and assigns of each of the
foregoing, and (b) collectively, all of the foregoing.


 


“Credit
Party Expenses” means (a) all reasonable out-of-pocket expenses incurred by the Agent and its Affiliates, in connection
with this Agreement and the other Loan Documents, including without limitation (i) the reasonable fees, charges and disbursements
of (A) counsel for the Agent, (B) outside consultants for the Agent, (C) appraisers, (D) commercial finance examiners (up to a
per diem cost of $950, plus all out-of-pocket expenses), and (E) all such out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of the Obligations, (ii) in connection with (A) the syndication of the credit facilities
provided for herein, (B) the preparation, negotiation, administration, management, execution and delivery of this Agreement and
the other Loan Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), (C) the enforcement or protection of their rights in connection with this
Agreement or the Loan Documents or efforts to preserve, protect, collect, or enforce the Collateral or in connection with any
proceeding under any Debtor Relief Laws, or (D) any workout, restructuring or negotiations in respect of any Obligations, and
(iii) all customary fees and charges (as adjusted from time to time) of the Agent with respect to the disbursement of funds (or
the receipt of funds) to or for the account of Borrowers (whether by wire transfer or otherwise), together with any out-of-pocket
costs and expenses incurred in connection therewith, and (b) (i) all reasonable out-of-pocket expenses incurred by the Credit
Parties who are not the Agent or an Affiliate of Agent (including without limitation the reasonable fees, charges and disbursements
of counsel for each such Credit Party) prior to the Closing Date in an amount per Credit Party not to exceed the greater of $5,000
and 0.001% of such Credit Party’s Commitments and (ii) following the Closing Date, all reasonable out-of-pocket expenses
incurred by the Credit Parties who are not the Agent or an Affiliate of the Agent after the occurrence and during the continuance
of an Event of Default.


 


“Customer
Credit Liabilities” means at any time, the aggregate remaining value at such time of (a) outstanding gift certificates and
gift cards of the Borrowers entitling the holder thereof to use all or a portion of the certificate or gift card to pay all or
a portion of the purchase price for any Inventory, and (b) outstanding merchandise credits of the Borrowers.


 


“Customs
Broker/Carrier Agreement” means an agreement in form and substance satisfactory to the Agent among a Loan Party, a customs
broker, freight forwarder, consolidator, or carrier, and the Agent, in which the customs broker, freight forwarder, consolidator,
or carrier acknowledges that it has control over and holds the documents evidencing ownership of the subject Inventory for the
benefit of the Agent and agrees, upon notice from the Agent, to hold and dispose of the subject Inventory solely as directed by
the Agent.


 






    -10-


     

    

 


“DDA”
means each checking, savings or other demand deposit account maintained by any of the Loan Parties. All funds in each DDA shall
be conclusively presumed to be Collateral and proceeds of Collateral and the Agent and the Lenders shall have no duty to inquire
as to the source of the amounts on deposit in any DDA.


 


“Debt
Service Charges” means for any Measurement Period, the sum of (a) Consolidated Interest Charges paid or required to be paid
for such Measurement Period, plus (b) principal payments made or required to be made on account of Indebtedness (excluding the
Obligations and any Synthetic Lease Obligations but including, without limitation, Capital Lease Obligations) for such Measurement
Period, in each case determined on a Consolidated basis in accordance with GAAP.


 


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


 


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


 


“Default
Rate” means (a) when used with respect to Loans, an interest rate equal to the interest rate (including the Applicable Margin)
otherwise applicable to such Loan plus two percent (2%) per annum and (b) with respect to all other Obligations, an interest rate
equal to the Base Rate, plus the then Applicable Margin, plus two percent (2%) per annum.


 


“Defaulting
Lender” means any Lender that (a) has failed to fund any amounts required to be funded by it under this Agreement on the
date that it is required to do so under this Agreement (including the failure to make available to the Agent amounts required
pursuant to a settlement pursuant to Section 2.13), (b) notified the Borrowers, the Agent, or any Lender in writing that it does
not intend to comply with all or any portion of its funding obligations under this Agreement, (c) has made a public statement
to the effect that it does not intend to comply with its funding obligations under the Agreement or under other agreements generally
(as reasonably determined by the Agent) under which it has committed to extend credit, (d) failed, within one (1) Business Day
after written request by the Agent, to confirm that it will comply with the terms of the Agreement relating to its obligations
to fund any amounts required to be funded by it under the Agreement, (e) otherwise failed to pay over to the Agent or any other
Lender any other amount required to be paid by it under the Agreement on the date that it is required to do so under the Agreement,
or (f) (i) becomes or is insolvent or has a parent company that has become or is insolvent, (ii) becomes the subject of a Bail-in
Action or (iii) becomes the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, or
custodian or appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence
in any such proceeding or appointment or has a parent company that has become the subject of a bankruptcy or insolvency proceeding,
or has had a receiver, conservator, trustee, or custodian appointed for it, or has taken any action in furtherance of, or indicating
its consent to, approval of or acquiescence in any such proceeding or appointment.


 






    -11-


     

    

 


“Dilution”
means, as of any date of determination, a percentage, based upon the experience of the immediately prior 12 months, 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, for any period, that percentage reasonably determined by the Agent in its discretion, with respect to matters
negatively affecting the collectability of Borrowers’ Accounts, including bad debt write-downs, discounts, advertising allowances,
credits, or other dilutive items with respect thereto.


 


“Discharge
of Term Loan Debt” has the meaning assigned to such term in the Intercreditor Agreement.


 


“Disposition”
or “Dispose” means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction),
whether in one transaction or in a series of transactions, of any property (including, without limitation, any Equity Interests
by any Person (or the granting of any option or other right to do any of the foregoing), including any sale, assignment, transfer
or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.


 


“Disqualified
Stock” means any Equity Interest that, by its terms (or by the terms of any security into which it is convertible, or for
which it is exchangeable, in each case at the option of the holder thereof), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder thereof,
in whole or in part, on or prior to the date that is ninety-one (91) days after the date on which the Loans mature; provided,
however, that (i) only the portion of such Equity Interests which so matures or is mandatorily redeemable, is so convertible or
exchangeable or is so redeemable at the option of the holder thereof prior to such date shall be deemed to be Disqualified Stock
and (ii) with respect to any Equity Interests issued to any employee or to any plan for the benefit of employees of the Lead Borrower
or its Subsidiaries or by any such plan to such employees, such Equity Interest shall not constitute Disqualified Stock solely
because it may be required to be repurchased by the Lead Borrower or one of its Subsidiaries in order to satisfy applicable statutory
or regulatory obligations or as a result of such employee’s termination, resignation, death or disability and if any class
of Equity Interest of such Person that by its terms authorizes such Person to satisfy its obligations thereunder solely by delivery
of an Equity Interest that is not Disqualified Stock, such Equity Interests shall not be deemed to be Disqualified Stock. Notwithstanding
the preceding sentence, any Equity Interest that would constitute Disqualified Stock solely because the holders thereof have the
right to require a Loan Party to repurchase such Equity Interest upon the occurrence of a change of control or an asset sale shall
not constitute Disqualified Stock. The amount of Disqualified Stock deemed to be outstanding at any time for purposes of this
Agreement will be the maximum amount that the Lead Borrower and its Subsidiaries may become obligated to pay upon maturity of,
or pursuant to any mandatory redemption provisions of, such Disqualified Stock or portion thereof, plus accrued dividends.


 






    -12-


     

    

 


“Dollars”
and “$” mean lawful money of the United States.


 


“Domestic
Subsidiary” means any Subsidiary that is organized under the laws of the United States of America, any State thereof or
the District of Columbia (excluding, for the avoidance of doubt, any Subsidiary organized under the laws of Puerto Rico or any
other territory).


 


“Early
Termination Fee” has the meaning set forth in Section 2.08(c).


 


“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
Assignee” means (a) a Credit Party or any of its Affiliates; (b) a bank, insurance company, or company engaged in the business
of making commercial loans, which Person, together with its Affiliates, has a combined capital and surplus in excess of $250,000,000;
(c) an Approved Fund; (d) any Person to whom a Credit Party assigns its rights and obligations under this Agreement as part of
an assignment and transfer of such Credit Party’s rights in and to a material portion of such Credit Party’s portfolio
of asset based credit facilities, and (e) any other Person (other than a natural Person) satisfying the requirements of Section
10.06(b) hereof; provided that notwithstanding the foregoing, “Eligible Assignee” shall not include a natural person,
a Loan Party or any of their respective Affiliates or Subsidiaries, a direct competitor of Borrowers engaged in the recycling
of industrial waste streams and off-specification commercial chemical products, or any of the entities specified on Schedule 10.06.


 


“Eligible
Inventory” means, as of the date of determination thereof, without duplication, items of Inventory of a Borrower that are
raw materials or finished goods that are merchantable and readily saleable to the public in the ordinary course of the Borrowers’
business deemed by the Agent in its discretion to be eligible for inclusion in the calculation of the Borrowing Base, in each
case that, except as otherwise agreed by the Agent, (A) complies with each of the representations and warranties respecting Inventory
made by the Borrowers in the Loan Documents, and (B) is not excluded as ineligible by virtue of one or more of the criteria set
forth below. Except as otherwise agreed by the Agent, in its discretion, the following items of Inventory shall not be included
in Eligible Inventory:


 


(a)          Inventory
that is not solely owned by a Borrower or a Borrower does not have good and valid title thereto free and clear of any Lien (other
than Permitted Encumbrances);


 






    -13-


     

    

 


(b)          Inventory
that is leased by or is on consignment to a Borrower or which is consigned by a Borrower to a Person which is not a Loan Party;


 


(c)          Inventory
that is not located in the United States of America (excluding territories or possessions of the United States) at a location
that is owned or leased by a Borrower, except (i) Inventory in transit between such owned or leased locations, or (ii) to the
extent that the Borrowers have furnished the Agent with (A) any UCC financing statements or other documents that the Agent may
determine to be necessary to perfect its security interest in such Inventory at such location, and (B) a Collateral Access Agreement
executed by the Person owning any such location (except if Agent shall have determined instead to maintain Reserves with respect
thereto);


 


(d)          Inventory
that is located in a distribution center leased by a Borrower unless the applicable lessor has delivered to the Agent a Collateral
Access Agreement;


 


(e)          Inventory
that is comprised of goods which (i) are damaged, defective, “seconds,” or otherwise unmerchantable, (ii) are to be
returned to the vendor, (iii) are obsolete or slow moving, or custom items, work-in-process, or that constitute samples, spare
parts, promotional, marketing, labels, bags and other packaging and shipping materials or supplies used or consumed in a Borrower’s
business, (iv) are seasonal in nature and which have been packed away for sale in the subsequent season, (v) not in compliance
with all standards imposed by any Governmental Authority having regulatory authority over such Inventory, its use or sale, or
(vi) are bill and hold goods;


 


(f)           Inventory
that is not subject to a perfected first-priority security interest in favor of the Agent;


 


(g)          Inventory
that is not insured in compliance with the provisions of Section 5.10 hereof;


 


(h)          Inventory
that has been sold but not yet delivered or as to which a Borrower has accepted a deposit;


 


(i)           Inventory
that is the subject of a bill of lading or other document of title;


 


(j)           Inventory
that is subject to any licensing, patent, royalty, trademark, trade name or copyright agreement with any third party from which
any Borrower or any of its Subsidiaries has received notice of a dispute in respect of any such agreement; or


 


(k)          Inventory
acquired in a Permitted Acquisition which is not of the type usually sold in the ordinary course of the Borrowers’ business
or which is not of the type usually sold in the ordinary course of the Borrowers’ business, unless and until the Agent has
completed or received (A) physical inventory to be undertaken, at the expense of the Loan Parties, consistent with past practices,
conducted by such inventory takers as are satisfactory to the Agent and following such methodology as is consistent with the methodology
used in the immediately preceding inventory or as otherwise may be satisfactory to the Agent, and Agent establishes Inventory
Reserves (if applicable) therefor, and otherwise agrees that such Inventory shall be deemed Eligible Inventory, and (B) such other
due diligence as the Agent may require, all of the results of the foregoing to be reasonably satisfactory to the Agent.


 






    -14-


     

    

 


“Eligible
Trade Receivables” means Accounts arising from the sale of the Borrowers’ Inventory that satisfies the following criteria
at the time of creation and continues to meet the same at the time of such determination: such Account (i) has been earned by
performance and represents the bona fide amounts due to a Borrower from an account debtor, and in each case is originated in the
ordinary course of business of such Borrower, (ii) is covered by credit insurance in form and substance satisfactory to Agent,
issued by an insurance company acceptable to Agent and which names Agent as the beneficiary thereof, (iii) in each case is acceptable
to the Agent in its discretion, and (iv) in each case is not ineligible for inclusion in the calculation of the Borrowing Base
pursuant to any of clauses (a) through (u) below. Without limiting the foregoing, to qualify as an Eligible Trade Receivable,
an Account shall indicate no Person other than a Borrower as payee or remittance party. In determining the amount to be so included,
the face amount of an Account shall be reduced by, without duplication, to the extent not reflected in such face amount, (i) the
amount of all accrued and actual discounts, claims, credits or credits pending, promotional program allowances, price adjustments,
finance charges or other allowances (including any amount that a Borrower may be obligated to rebate to a customer pursuant to
the terms of any agreement or understanding (written or oral)) and (ii) the aggregate amount of all cash received in respect of
such Account but not yet applied by the Borrowers to reduce the amount of such Eligible Trade Receivable. Except as otherwise
agreed by the Agent, any Account included within any of the following categories shall not constitute an Eligible Trade Receivable:


 


(a)          Accounts
that are not evidenced by an invoice;


 


(b)          Accounts
that have been outstanding for more than 60 days past the due date therefor or 90 days after the date of the invoice with respect
thereto;


 


(c)          All
Accounts owed by any account debtor and/or its Affiliates where 25% or more of all Accounts owed by that account debtor and/or
its Affiliates are deemed ineligible under clause (b) above.


 


(d)          All
Accounts owed by an account debtor and/or its Affiliates which together exceed 25% (or any other percentage now or hereafter established
by the Agent for any particular account debtor, and provided that the applicable percentage shall be 40% with respect to a single
account debtor selected by the Lead Borrower) of the amount of all Accounts at any one time (but the portion of the Accounts not
in excess of the applicable percentage may be deemed Eligible Trade Receivables, in the Agent’s discretion);


 


(e)          Accounts
(i) that are not subject to a perfected first-priority security interest in favor of the Agent, or (ii) with respect to which
a Borrower does not have good and valid title thereto, free and clear of any Lien (other than Permitted Encumbrances);


 






    -15-


     

    

 


(f)           Accounts
which are disputed or with respect to which a claim, counterclaim, offset or chargeback has been asserted, but only to the extent
of such dispute, counterclaim, offset or chargeback;


 


(g)          Accounts
which arise out of any sale (i) not made in the ordinary course of business, (ii) made on a basis other than upon credit terms
usual to the business of the Borrowers or (iii) are not payable in Dollars;


 


(h)          Accounts
which are owed by any account debtor whose principal place of business is not within the continental United States;


 


(i)           Accounts
which are owed by any Affiliate or any employee of a Loan Party;


 


(j)           Accounts
for which all consents, approvals or authorizations of, or registrations or declarations with any Governmental Authority required
to be obtained, effected or given in connection with the performance of such Account by the account debtor or in connection with
the enforcement of such Account by the Agent have been duly obtained, effected or given and are in full force and effect;


 


(k)          Accounts
due from an account debtor which is the subject of any bankruptcy or insolvency proceeding, has had a trustee or receiver appointed
for all or a substantial part of its property, has made an assignment for the benefit of creditors or has suspended its business;


 


(l)           Accounts
due from any Governmental Authority except to the extent that the subject account debtor is the federal government of the United
States of America and the Borrowers have complied with the Federal Assignment of Claims Act of 1940;


 


(m)          Accounts
(i) owing from any Person that is also a supplier to or creditor of a Loan Party or any of its Subsidiaries or (ii) representing
any manufacturer’s or supplier’s credits, discounts, incentive plans or similar arrangements entitling a Loan Party
or any of its Subsidiaries to discounts on future purchase therefrom, in each case to the extent of the applicable offset or reduction;


 


(n)          Accounts
arising out of sales on a bill-and-hold, guaranteed sale, sale-or-return, sale on approval or consignment basis or subject to
any right of return;


 


(o)          Accounts
arising out of sales to account debtors outside the United States; 


 


(p)          Accounts
evidenced by a promissory note or other instrument;


 


(q)          Accounts
consisting of amounts due from vendors as rebates or allowances;


 


(r)           Accounts
which are in excess of the credit limit for such account debtor established by the Loan Parties in the ordinary course of business
and consistent with past practices;


 






    -16-


     

    

 


(s)          Accounts
which include extended payment terms (datings) beyond those generally furnished to other account debtors in the ordinary course
of business;


 


(t)           Accounts
classified as contra accounts; or


 


(u)          Accounts
relating to cooperative advertising.


 


“Eligible
Trade Receivables Advance Rate” means 85%; provided, that if Dilution exceeds 5%, Agent may, at its option, (A) reduce such
advance rate by the number of full or partial percentage points comprising such excess or (B) establish a Dilution Reserve on
account of such excess.


 


“Encina”
means Encina Business Credit, LLC and its successors.


 


“Environmental
Laws” means any and all applicable Federal, state, local, and foreign statutes, laws, regulations, ordinances, rules, judgments,
orders, decrees, permits, concessions, grants, franchises, licenses, agreements or governmental restrictions relating to pollution
and the protection of the environment or the release of any materials into the environment, including those related to hazardous
substances or wastes, air emissions and discharges to waste or public systems.


 


“Environmental
Liability” means any liability, obligation, damage, loss, claim, action, suit, judgment, order, fine, penalty, fee, expense,
or cost, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or
indemnities), of any Borrower, any other Loan Party or any of their respective Subsidiaries directly or indirectly resulting from
or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or
disposal or presence of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release
of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which
liability is assumed or imposed with respect to any of the foregoing.


 


“Equipment”
has the meaning set forth in the UCC.


 


“Equity
Interests” means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests
in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital
stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares
of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or
acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such
Person (including partnership, member or trust interests therein), whether voting or non-voting, and whether or not such shares,
warrants, options, rights or other interests are outstanding on any date of determination.


 


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


 


“ERISA
Affiliate” means any trade or business (whether or not incorporated) under common control with the Borrower within the meaning
of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412
of the Code).


 






    -17-


     

    

 


“ERISA
Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the withdrawal of the Borrower or any ERISA Affiliate
from a Pension Plan subject to Section 4063 of ERISA during a plan year in which such entity was a “substantial employer”
as defined in Section 4001(a)(2) of ERISA or a cessation of operations that is treated as such a withdrawal under Section
4062(e) of ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA Affiliate from a Multiemployer Plan if
there is any potential material liability therefore or notification from the trustees of Multiemployer Plan received by a Loan
Part or any ERISA Affiliate that a Multiemployer Plan is in reorganization; (d) the filing by a Loan Party or any ERISA Affiliate
(or the receipt by a Loan Party or any ERISA Affiliate) of a notice of intent to terminate a Pension Plan under Section 4041(c)
of ERISA or the treatment of a Pension Plan amendment as a termination under Section 4041 or 4041A of ERISA; (e) the institution
by the PBGC of proceedings to terminate a Pension Plan; (f) any event or condition which constitutes grounds under Section 4042
of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (g) the determination that any
Pension Plan would be expected to be considered an at-risk plan within the meaning of Section 430(i)(4) of the Code or Section
303 of ERISA or the determination that any Multiemployer Plan is in “endangered” or “critical” status
within the meaning of Section 432 of the Code or Section 305 of ERISA; or (h) the imposition of any material liability under Title
IV of ERISA, with respect to the termination of any Pension Plan, other than for PBGC premiums due but not delinquent under Section
4007 of ERISA, after expiration of any applicable grace period, upon the Borrower or any ERISA Affiliate.


 


“E-Source”
means E-Source Holdings, LLC, a Texas limited liability company.


 


“E-Source
Indebtedness” means the Indebtedness described on Schedule 7.17 and outstanding as of the Closing Date.


 


“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 in Section 8.01. An Event of Default shall be deemed to be continuing unless
and until that Event of Default has been duly waived as provided in Section 10.01 hereof.


 


“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 under the Security Agreement of, or the grant under a Loan Document 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 the application or official interpretation thereof) by virtue of such Loan Party’s failure for any reason to constitute
an “eligible contract participant” as defined in the Commodity Exchange hereof and any and all guarantees of such
Loan Party’s Swap Obligations by other Loan Parties) at the time the guaranty of such Loan Party, or grant by such Loan
Party of a security interest, becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a Master
Agreement governing more than one Swap Contract, such exclusion shall apply only to the portion of such Swap Obligation that is
attributable to Swap Contracts for which such guaranty or security interest becomes illegal.


 






    -18-


     

    

 


“Excluded
Taxes” means any of the following Taxes imposed on or with respect to any Recipient or required to be withheld or deducted
from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch
profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal
office or, in the case of any Lender, its Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision
thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts
payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law
in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment
request by the Borrower under Section 10.13) or (ii) such Lender changes its Lending Office, except in each case to the
extent that, pursuant to Section 3.01(a)(ii) or (c), amounts with respect to such Taxes were payable either to such Lender’s
assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its Lending Office,
(c) Taxes attributable to such Recipient’s failure to comply with Section 3.01(e) and (d) any U.S. federal withholding
Taxes imposed pursuant to FATCA.


 


“Executive
Order” has the meaning set forth in Section 10.18.


 


“Existing
Credit Agreements” means (a) that certain Amended and Restated Credit And Guaranty Agreement dated as of January 29, 2016
by and among Vertex Energy Operating, LLC, Parent, the other guarantors party thereto, the other financial institutions party
thereto as lenders, and Goldman Sachs Bank USA, as administrative agent for the lenders, (b) that certain Loan and Security Agreement
dated March 26, 2015 by and among Vertex Energy Operating, LLC, Parent, the other borrowers and guarantors party thereto and Midcap
Business Credit LLC, a Texas limited liability company, as the lender and (c) that certain Promissory Note dated January 29, 2016
in the original principal amount of $5,150,000 issued by Vertex Refining OH, LLC payable by the order of Fox Encore 05 LLC, a
Washington limited liability company.


 


“Extraordinary
Receipt” means any cash received by, or paid to or for the account of, any Borrower or any Subsidiary (other than E-Source)
with respect to pension plan reversions, indemnity payments (excluding indemnity payments which are to reimburse a Borrower or
any Subsidiary for amounts paid or to be paid with respect to an obligation), and any purchase price adjustments.


 


“FATCA”
means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively
comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof
and any agreements entered into pursuant to Section 1471(b)(1) of the Code.


 






    -19-


     

    

 


“Federal
Funds Rate” means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal
Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on
the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds
Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Reference
Bank on such day on such transactions as determined by the Agent.


 


“Fee
Letter” means the letter agreement, dated as of the date hereof, between Lead Borrower and Agent.


 


“FIRREA”
shall mean the Financial Institutions Reform, Recovery and Enforcement Act of 1989, as amended.


 


“Fiscal
Month” means any fiscal month of any Fiscal Year, which month shall generally end on the last Saturday of each calendar
month in accordance with the fiscal accounting calendar of the Loan Parties. For the avoidance of doubt, “Fiscal Month”
may constitute a five-week period, from time to time, in accordance with the fiscal accounting calendar of the Loan Parties.


 


“Fiscal
Quarter” means any fiscal quarter of any Fiscal Year in accordance with the fiscal accounting calendar of the Loan Parties.


 


“Fiscal
Year” means any period of twelve (12) consecutive months ending on or about the last Saturday of December of any calendar
year.


 


“Flood
Certificate” shall mean a “Standard Flood Hazard Determination Form” of the Federal Emergency Management Agency
and any successor Governmental Authority performing a similar function.


 


“Flood
Program” shall mean the National Flood Insurance Program created by the U.S. Congress pursuant to the National Flood Insurance
Act of 1968, the Flood Disaster Protection Act of 1973, the National Flood Insurance Reform Act of 1994 and the Flood Insurance
Reform Act of 2004, in each case as amended from time to time, and any successor statutes.


 


“Flood
Zone” shall mean areas having special flood hazards as described in the National Flood Insurance Act of 1968, as amended
from time to time, and any successor statute.


 


“Foreign
Asset Control Regulations” has the meaning set forth in Section 10.18.


 


“Foreign
Lender” means any Lender that is organized under the laws of a jurisdiction other than that in which the Lead Borrower is
resident for tax purposes. For purposes of this definition, the United States, each State thereof and the District of Columbia
shall be deemed to constitute a single jurisdiction.


 


“Foreign
Subsidiary” means any Subsidiary that is organized under the laws of any jurisdiction other than the United States, any
state thereof or the District of Columbia.


 






    -20-


     

    

 


“FRB”
means the Board of Governors of the Federal Reserve System of the United States.


 


“Fronting
Exposure” means, at any time there is a Defaulting Lender, such Defaulting Lender’s Applicable Percentage of Swing
Line Loans other than Swing Line Loans as to which such Defaulting Lender’s participation obligation has been reallocated
to other Lenders in accordance with the terms hereof.


 


“Fund”
means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing
in commercial loans and similar extensions of credit in the ordinary course of its business.


 


“GAAP”
means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in
the United States, that are applicable to the circumstances as of the date of determination, consistently applied.


 


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


 


“Guarantee”
means, as to any Person, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect
of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “primary obligor”)
in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase
or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or
lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation
of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any
other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the
obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against
loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other
obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right,
contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any Guarantee shall be deemed
to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of
which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof.
The term “Guarantee” as a verb has a corresponding meaning.


 






    -21-


     

    

 


“Guarantor”
means (a) Parent and each Subsidiary of the Parent (other than any CFC and other than E-Source) existing on the Closing Date,
(b) each other Subsidiary of the Parent that shall be required to execute and deliver a joinder to the Security Agreement pursuant
to Section 6.11, and (c) with respect to any Swap Obligation of a Specified Loan Party (determined before giving effect
to Section 10.26) under the Security Agreement, each Borrower.


 


“Hazardous
Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls,
radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental
Law.


 


“Heartland
Assets” means the assets located at 4021 East 5th Avenue, Columbus, OH 43219 and 4001 East 5th Avenue, Columbus, OH 43219
as of the Closing Date, excluding, however, any inventory in transit in the order course of business.


 


“H&H
Oil Operating Assets” means the assets of H&H Oil, L.P. located at 11626 Old Corpus Christi Hwy., San Antonio, TX 78223
as of the Closing Date, excluding, however, any inventory in transit in the ordinary course of business.


 


“Hydrotreater
Assets” means the equipment located at 278 E. Ravenna Road, Myrtle Grove, LA 70037 as of the Closing Date.


 


“Indebtedness”
means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness
or liabilities in accordance with GAAP:


 


(a)          all
obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements
or other similar instruments;


 


(b)          the
maximum amount of all direct or contingent obligations of such Person arising under letters of credit (including standby and commercial),
bankers’ acceptances, bank guaranties, surety bonds and similar instruments;


 


(c)          net
obligations of such Person under any Swap Contract;


 


(d)          all
obligations of such Person to pay the deferred purchase price of property or services, including seller notes or earn-out obligations
appearing on such Person’s balance sheet in accordance with GAAP (other than trade accounts payable in the ordinary course
of business and, in each case, not past due for more than 60 days after the date on which such trade account payable was created);


 


(e)          indebtedness
(excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness
arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed
by such Person or is limited in recourse;


 


(f)           All
Attributable Indebtedness of such Person;


 






    -22-


     

    

 


(g)          all
obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any Equity Interest
in such Person or any other Person (including, without limitation, Disqualified Stock), or any warrant, right or option to acquire
such Equity Interest, valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation
preference plus accrued and unpaid dividends; and


 


(h)          all
Guarantees of such Person in respect of any of the foregoing or in respect of any lease, dividend or other obligation of another
Person.


 


For
all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other
than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a
joint venturer, unless such Indebtedness is expressly made non-recourse to such Person. The amount of any net obligation under
any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date.


 


“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 (a), Other Taxes.


 


“Indemnitees”
has the meaning specified in Section 10.04(b).


 


“Information”
has the meaning specified in Section 10.07.


 


“Intellectual
Property” means all present and future: trade secrets, know-how and other proprietary information; trademarks, trademark
applications, internet domain names, service marks, trade dress, trade names, business names, designs, logos, slogans (and all
translations, adaptations, derivations and combinations of the foregoing) indicia and other source and/or business identifiers,
and all registrations or applications for registrations which have heretofore been or may hereafter be issued thereon throughout
the world; copyrights and copyright applications; (including copyrights for computer programs) and all tangible and intangible
property embodying the copyrights, unpatented inventions (whether or not patentable); patents and patent applications; industrial
design applications and registered industrial designs; license agreements related to any of the foregoing and income therefrom;
books, customer lists, records, writings, computer tapes or disks, flow diagrams, specification sheets, computer software, source
codes, object codes, executable code, data, databases and other physical manifestations, embodiments or incorporations of any
of the foregoing; all other intellectual property; and all common law and other rights throughout the world in and to all of the
foregoing.


 


“Intercreditor
Agreement” means that certain Intercreditor Agreement, dated as of the Closing Date, among the Agent, the Term Loan Agent
and the Loan Parties.


 


“Interest
Payment Date” means, as to any Loan, the first Business Day of each month and the Termination Date.


 






    -23-


     

    

 


“Internal
Control Event” means a material weakness in, or fraud that involves management or other employees who have a significant
role in, the Parent’s and/or its Subsidiaries’ internal controls over financial reporting.


 


“Inventory”
has the meaning given that term in the UCC, and shall also include, without limitation, all: (a) goods which (i) are leased by
a Person as lessor, (ii) are held by a Person for sale or lease or to be furnished under a contract of service, (iii) are furnished
by a Person under a contract of service, or (iv) consist of raw materials, work in process, or materials used or consumed in a
business; (b) goods of said description in transit; (c) goods of said description which are returned, repossessed or rejected;
and (d) packaging, advertising, and shipping materials related to any of the foregoing.


 


“Inventory
Advance Rate” means 65%.


 


“Inventory
Reserves” means such reserves as may be established from time to time by the Agent in its discretion with respect to the
determination of the saleability, at retail, of the Eligible Inventory, which reflect such other factors as affect the market
value of the Eligible Inventory or which reflect claims and liabilities that the Agent determines will need to be satisfied in
connection with the realization upon the Inventory. Without limiting the generality of the foregoing, Inventory Reserves may,
in the Agent’s discretion, include (but are not limited to) reserves based on:


 


(a)          obsolescence;


 


(b)          seasonality;


 


(c)          Shrink;


 


(d)          imbalance;


 


(e)          change
in Inventory character;


 


(f)           change
in Inventory composition;


 


(g)          change
in Inventory mix;


 


(h)          mark-downs
(both permanent and point of sale);


 


(i)           retail
mark-ons and mark-ups inconsistent with prior period practice and performance, industry standards, current business plans or advertising
calendar and planned advertising events; and


 


(j)           out-of-date
and/or expired Inventory.


 


“Inventory
Sublimit” means $4,000,000.


 






    -24-


     

    

 


“Investment”
means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase
or other acquisition of Equity Interests of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption
of debt of, or purchase or other acquisition of any other debt or interest in, another Person, or (c) any Acquisition, or (d)
any other investment of money or capital in order to obtain a profitable return. For purposes of covenant compliance, the amount
of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value
of such Investment.


 


“IRS”
means the United States Internal Revenue Service.


 


“Joinder”
means an agreement, in form satisfactory to the Agent pursuant to which, among other things, a Person becomes a party to, and
bound by the terms of, this Agreement and/or the other Loan Documents in the same capacity and to the same extent as either a
Borrower or a Guarantor, as the Agent may determine.


 


“Laws”
means, collectively, all international, foreign, Federal, state and local statutes, treaties, rules, guidelines, regulations,
ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof
by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative
orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in
each case whether or not having the force of law.


 


“Lead
Borrower” has the meaning assigned to such term in the preamble of this Agreement.


 


“Lease”
means any agreement, whether written or oral, no matter how styled or structured, pursuant to which a Loan Party is entitled to
the use or occupancy of any real property for any period of time.


 


“Leased
Real Property” means any Real Estate pursuant to which a Loan Party has rights pursuant to a Lease.


 


“Lender”
means, as of any date of determination, each lender that has a Commitment or, if the Commitments have terminated or expired, a
Lender with Revolving Credit Exposure and, as the context requires, includes the Swing Line Lender.


 


“Lending
Office” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative
Questionnaire, or such other office or offices as a Lender may from time to time notify the Lead Borrower and the Agent.


 


“LIBOR
Borrowing” means a Revolving Borrowing comprised of LIBOR Rate Loans.


 


“LIBOR
Rate” means, for any Interest Period, the rate (expressed as a percentage per annum and rounded upward, if necessary, to
the next nearest 1/100 of 1%) for deposits in Dollars, for a one-month period, that appears on Bloomberg Screen US0003M (or the
successor thereto) as the London interbank offered rate for deposits in Dollars as of 11:00 a.m., London time, as of two Business
Days prior to the commencement of such Interest Period (provided, that, in no event shall such rate be less than 0.25%), which
determination shall be made by Agent and shall be conclusive in the absence of manifest error.


 






    -25-


     

    

 


“LIBOR
Rate Loan” means a Revolving Loan that bears interest at a rate based on the LIBOR Rate.


 


“Lien”
means (a) any mortgage, deed of trust, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest
of any kind or nature whatsoever (including any conditional sale, Capital Lease Obligation, Synthetic Lease Obligation, or other
title retention agreement, any easement, right of way or other encumbrance on title to real property, and any financing lease
having substantially the same economic effect as any of the foregoing) and (b) in the case of securities, any purchase option,
call or similar right of a third party with respect to such securities.


 


“Liquidation”
means the exercise by the Agent of those rights and remedies accorded to the Agent under the Loan Documents and applicable Laws
as a creditor of the Loan Parties with respect to the realization on the Collateral, including (after the occurrence and during
the continuation of an Event of Default) the conduct by the Loan Parties acting with the consent of the Agent, of any public,
private or “going-out-of-business”, “store closing” or other similar sale or any other disposition of
the Collateral for the purpose of liquidating the Collateral. Derivations of the word “Liquidation” (such as “Liquidate”)
are used with like meaning in this Agreement.


 


“Loan”
means an extension of credit by a Lender to the Borrower under Article II in the form of a Revolving Loan or a Swing Line
Loan.


 


“Loan
Account” has the meaning assigned to such term in Section 2.10(a).


 


“Loan
Cap” means, at any time of determination, the lesser of (a) the Aggregate Commitments or (b) the Borrowing Base.


 


“Loan
Documents” means this Agreement, each promissory note, each Issuer Document, the Fee Letter, all Borrowing Base Certificates,
the Account Control Agreements, the Security Documents, the Intercreditor Agreement, and any other instrument or agreement now
or hereafter executed and delivered in connection herewith, or in connection with any transaction arising out of any Cash Management
Services and Bank Products provided by any Lender or any of its Affiliates, each as amended and in effect from time to time; provided
that for purposes of the definition of “Material Adverse Effect” and Article VII, “Loan Documents”
shall not include agreements relating to Cash Management Services and Bank Products.


 


“Loan
Parties” means, collectively, the Borrowers and each Guarantor.


 


“Marrero
Assets” means means the assets located at 5000 River Rd., Marrero, LA 70072 as of the Closing Date, excluding, however,
any inventory in transit in the ordinary course of business.


 


“Master
Agreement” has the meaning set forth in the definition of “Swap Contract.”


 






    -26-


     

    

 


“Material
Adverse Effect” means (a) a material adverse change in, or a material adverse effect upon, the operations, business, properties,
liabilities (actual or contingent), condition (financial or otherwise) of Parent and its Subsidiaries taken as a whole; (b) a
material impairment of the ability of any Loan Party to perform its obligations under any Loan Document to which it is a party;
or (c) a material impairment of the rights and remedies of the Agent or the Lenders under any Loan Document or a material adverse
effect upon the legality, validity, binding effect or enforceability against any Loan Party of any Loan Document to which it is
a party. In determining whether any individual event would result in a Material Adverse Effect, notwithstanding that such event
in and of itself does not have such effect, a Material Adverse Effect shall be deemed to have occurred if the cumulative effect
of such event and all other then existing events would result in a Material Adverse Effect.


 


“Material
Contract” means, with respect to any Person, each contract to which such Person is a party material to the business, condition
(financial or otherwise), operations, performance, or properties of such Person.


 


“Material
Indebtedness” means Indebtedness (other than the Obligations) of the Loan Parties in an aggregate principal amount exceeding
$500,000. For purposes of determining the amount of Material Indebtedness at any time, (a) the amount of the obligations in respect
of any Swap Contract at such time shall be calculated at the Swap Termination Value thereof, (b) undrawn committed or available
amounts shall be included, and (c) all amounts owing to all creditors under any combined or syndicated credit arrangement shall
be included.


 


“Maturity
Date” means February 1, 2020.


 


“Maximum
Priority Term Loan Debt” has the meaning assigned to such term in the Intercreditor Agreement.


 


“Maximum
Rate” has the meaning provided therefor in Section 10.09.


 


“Measurement
Period” means, at any date of determination, the most recently completed twelve Fiscal Months of the Parent.


 


“Moody’s”
means Moody’s Investors Service, Inc. and any successor thereto.


 


“Mortgages”
means each and every fee and leasehold mortgage, deed of trust, or similar instrument by a Loan Party owning or holding a leasehold
interest in the Real Estate encumbered thereby in favor of or for the benefit of the Agent.


 


“Mortgaged
Property” means each parcel of Real Estate encumbered or required to be encumbered hereunder by a Mortgage.


 


“Motiva
Litigation” means any litigation or claim involving Motiva and E-Source existing on the Closing Date or relating to any
period prior to the Closing Date.


 


“Multiemployer
Plan” means any employee benefit plan which is a multiemployer plan as defined in Section 4001(a)(3) of ERISA, to which
the Lead Borrower or any ERISA Affiliate makes or is obligated to make contributions, or during the five plan years immediately
preceding the date hereof, has made or been obligated to make contributions.


 






    -27-


     

    

 


“Multiple
Employer Plan” means a Plan which has two or more contributing sponsors (including the Lead Borrower or any ERISA Affiliate)
at least two of whom are not under common control, as such a plan is described in Section 4064 of ERISA.


 


“Net
Proceeds” means


 


(a)          with
respect to any Disposition by any Loan Party or any of its Subsidiaries, or any Extraordinary Receipt received or paid to the
account of any Loan Party or any of its Subsidiaries (other than E-Source), the excess, if any, of (i) the sum of cash and cash
equivalents received in connection with such transaction (including any cash or cash equivalents received by way of deferred payment
pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received) minus (ii) the sum of (A)
the principal amount of any Indebtedness that is secured by the applicable asset by a Lien permitted hereunder which is senior
to the Agent’s Lien on such asset and that is required to be repaid (or to establish an escrow for the future repayment
thereof) in connection with such transaction (other than Indebtedness under the Loan Documents), and (B) the reasonable and customary
out-of-pocket expenses incurred by such Loan Party or such Subsidiary in connection with such transaction (including, without
limitation, appraisals, and brokerage, legal, title and recording or transfer tax expenses and commissions) paid by any Loan Party
to third parties (other than Affiliates)); and


 


(b)          with
respect to the sale or issuance of any Equity Interest by any Loan Party or any of its Subsidiaries, or the incurrence or issuance
of any Indebtedness by any Loan Party or any of its Subsidiaries, the excess of (i) the sum of the cash and cash equivalents received
in connection with such transaction minus (ii) the underwriting discounts and commissions, and other reasonable and customary
out-of-pocket expenses, incurred by such Loan Party or such Subsidiary in connection therewith.


 


“Non-Consenting
Lender” has the meaning provided therefor in Section 10.01.


 


“Non-Defaulting
Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.


 


“Notice
of Borrowing” means a notice of a Borrowing which, if in writing, shall be substantially in the form of Exhibit A.


 


“NPL”
means the National Priorities List under CERCLA.


 


“Obligations”
means (a) all advances to, and debts (including principal, interest, fees, costs, and expenses), liabilities, obligations, covenants,
indemnities, and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan, whether direct
or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter
arising and including interest, fees, costs, expenses and indemnities that accrue after the commencement by or against any Loan
Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding,
regardless of whether such interest, fees costs, expenses and indemnities are allowed claims in such proceeding, and (b) any Other
Liabilities; provided that Obligations of a Loan Party shall exclude any Excluded Swap Obligations with respect to such Loan Party.


 






    -28-


     

    

 


“Organization
Documents” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent
or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company,
the certificate or articles of formation or organization and operating agreement; (c) with respect to any partnership, joint venture,
trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization
and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with
the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate
or articles of formation or organization of such entity, and (d) in each case, all shareholder or other equity holder agreements,
voting trusts and similar arrangements to which such Person is a party or which is applicable to its Equity Interests and all
other arrangements relating to the Control or management of such Person.


 


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


 


“Other
Liabilities” means any obligation on account of (a) any Cash Management Services furnished to any of the Loan Parties or
any of their Subsidiaries and/or (b) any Bank Product furnished to any of the Loan Parties and/or any of their Subsidiaries.


 


“Other
Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise
from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection
of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection
Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 3.06).


 


“Outstanding
Amount” means with respect to each of Revolving Loans and Swing Line Loans on any date, the aggregate outstanding principal
amount thereof after giving effect to any Borrowings and prepayments or repayments of Loans occurring on such date.


 


“Overadvance”
means a Credit Extension to the extent that, immediately after its having been made, Availability is less than zero.


 


“Parent”
means Vertex Energy, Inc., a Nevada corporation.


 


“Participant”
has the meaning specified in Section 10.06(d).


 






    -29-


     

    

 


“Payment
Conditions” means, at the time of determination with respect to any specified transaction or payment, that (a) no Default
or Event of Default then exists or would arise as a result of entering into such transaction or the making of such payment, (b)
after giving effect to such transaction or payment, the Pro Forma Availability Condition has been satisfied and the Consolidated
Fixed Charge Coverage Ratio, as projected on a pro-forma basis for the twelve consecutive Fiscal Months immediately following
such transaction or payment, is equal to or greater than 1.1:1.0. Prior to undertaking any transaction or payment which is subject
to the Payment Conditions, the Loan Parties shall deliver to the Agent evidence of satisfaction of the conditions contained in
clause (b) above on a basis (including, without limitation, giving due consideration to results for prior periods) reasonably
satisfactory to the Agent.


 


“PBGC”
means the Pension Benefit Guaranty Corporation.


 


“PCAOB”
means the Public Company Accounting Oversight Board.


 


“Pension
Act” means the Pension Protection Act of 2006.


 


“Pension
Funding Rules” means the rules of the Code and ERISA regarding minimum required contributions (including any installment
payment thereof) to Pension Plans and set forth in, with respect to plan years ending prior to the effective date of the Pension
Act, Section 412 of the Code and Section 302 of ERISA, each as in effect prior to the Pension Act and, thereafter, Section 412,
430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA.


 


“Pension
Plan” means any “employee pension benefit plan”, as defined in Section 3(2) of ERISA, other than a Multiemployer
Plan or a Multiple Employer Plan, that is maintained or is contributed to by a Loan Party and any ERISA Affiliate for their respective
employees and is either covered by Title IV of ERISA or is subject to the minimum funding standards under Section 412 of
the Code.


 


“Perfection
Certificate” means a certificate in the form of Exhibit G hereto executed by a Responsible Officer of the Lead Borrower.


 


“Permitted
Acquisition” means an Acquisition in which all of the following conditions are satisfied:


 


(a)       
   Such Acquisition shall have been approved by the board of directors of the Person (or similar governing body
if such Person is not a corporation) which is the subject of such Acquisition and such Person shall not have announced that it
will oppose such Acquisition or shall not have commenced any action which alleges that such Acquisition shall violate applicable
Law;


 


(b)          The
Lead Borrower shall have furnished the Agent with twenty (20) Business Days’ prior written notice of such intended Acquisition
and shall have furnished the Agent with a current draft of the Acquisition Documents (and final copies thereof as and when executed),
a summary of any due diligence undertaken by the Loan Parties in connection with such Acquisition, appropriate financial statements
of the Person which is the subject of such Acquisition, pro forma projected financial statements for the twelve (12) month period
following such Acquisition after giving effect to such Acquisition (including balance sheets, cash flows and income statements
by month for the acquired Person, individually, and on a Consolidated basis with all Loan Parties), and such other information
as the Agent may reasonably require, all of which shall be in form reasonably satisfactory to the Agent;


 






    -30-


     

    

 


(c)      
    The legal structure of the Acquisition shall be acceptable to the Agent in its discretion;


 


(d)          After
giving effect to the Acquisition, if the Acquisition is an Acquisition of Equity Interests, a Loan Party shall acquire and own,
directly or indirectly, a majority of the Equity Interests in the Person being acquired and shall Control a majority of any voting
interests or shall otherwise Control the governance of the Person being acquired;


 


(e)          Any
assets acquired shall be utilized in, and if the Acquisition involves a merger, consolidation or acquisition of Equity Interests,
the Person which is the subject of such Acquisition shall be engaged in, a business otherwise permitted to be engaged in by a
Borrower under this Agreement;


 


(f)       
   If the Person which is the subject of such Acquisition will be maintained as a Subsidiary of a Loan Party, or
if the assets acquired in an Acquisition will be transferred to a Subsidiary which is not then a Loan Party, such Subsidiary shall
have been joined as a “Borrower” hereunder or as a Guarantor, as the Agent shall determine, and the Agent shall have
received a first priority security and/or mortgage interest in such Subsidiary’s Equity Interests and property of such Subsidiary
and of the same nature as constitutes Collateral under the Security Documents;


 


(g)          The
Person which is the subject of such Acquisition shall be organized under the laws of the United States, any state thereof or the
District of Columbia, and any assets acquired shall be located in the United States, any state thereof or the District of Columbia;
and


 


(h)          The
Loan Parties shall have satisfied the Payment Conditions.


 


“Permitted
Disposition” means any of the following:


 


(a)          dispositions
of Inventory in the ordinary course of business;


 


(b)          non-exclusive
licenses of Intellectual Property of a Loan Party or any of its Subsidiaries in the ordinary course of business;


 


(c)          dispositions
of Equipment in the ordinary course of business that is substantially worn, damaged, obsolete or, in the judgment of a Loan Party,
no longer useful or necessary in its business or that of any Subsidiary and is replaced with similar property having at least
equivalent value;


 


(d)          sales,
transfers and dispositions among the Loan Parties or by any Subsidiary to a Loan Party;


 


(e)          sales,
transfers and dispositions by any Subsidiary which is not a Loan Party to another Subsidiary that is not a Loan Party;


 






    -31-


     

    

 


(f)      
    dispositions of Equipment in the ordinary course of business, provided that (i) the Net Proceeds of such
disposition are equal to or greater than the most recent appraised value of such Equipment and (ii) after giving effect to each
such disposition, the Outstanding Amount (as defined in the Term Loan Agreement) shall not exceed the amount set forth in clause
(b) of the definition of “Aggregate Term Loan Cap” in the Term Loan Agreement;


 


(g)          dispositions
of Marrero Assets and Heartland Assets with the prior written consent of Agent, including as to use of proceeds thereof, provided
that, after giving effect to each such disposition, the Consolidated Fixed Charge Coverage Ratio for the most recent Fiscal Quarter
for which financial statements have been delivered to Agent shall be greater than 1.0:1.0 on a pro forma basis and the Loan Parties
are in compliance with Section 7.16; and


 


(h)          dispositions
of the H&H Oil Operating Assets, CMT Assets and Hydrotreater Assets; provided that (i) either (x) after giving effect to each
such disposition, the Consolidated Fixed Charge Coverage Ratio for the most recent Fiscal Quarter for which financial statements
have been delivered to Agent shall be greater than 1.1:1.0 on a pro forma basis and the Loan Parties are in compliance with Section
7.16 or (y) Agent has provided its prior written consent to such disposition and (ii) after giving effect to each such disposition,
the Outstanding Amount (as defined in the Term Loan Agreement) shall not exceed the amount set forth in clause (b) of the definition
of “Aggregate Term Loan Cap” in the Term Loan Agreement.


 


“Permitted
Encumbrances” means:


 


(a)          Liens
imposed by law for Taxes that are not yet due or are being contested in compliance with Section 6.04;


 


(b)          carriers’,
warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens imposed by applicable Laws,
arising in the ordinary course of business and securing obligations that are not overdue;


 


(c)          pledges
and deposits made in the ordinary course of business in compliance with workers’ compensation, unemployment insurance and
other social security laws or regulations, or Liens in connection with workers’ compensation, unemployment insurance or
other social security, old age pension or public liability obligations which are not delinquent or which are being contested in
good faith by appropriate action and for which adequate reserves have been maintained in accordance with GAAP or imposed by ERISA;


 


(d)          deposits
to secure the performance of bids, trade contracts and leases (other than Indebtedness), statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;


 


(e)          Liens
in respect of judgments that would not constitute an Event of Default hereunder;


 






    -32-


     

    

 


(f)       
   easements, covenants, conditions, restrictions, building code laws, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary course of business that do not secure any monetary obligations
and do not materially detract from the value of the affected property or materially interfere with the ordinary conduct of business
of a Loan Party and such other minor title defects or survey matters that are disclosed by current surveys that, in each case,
do not materially interfere with the current use of the real property;


 


(g)          Liens
existing on the Closing Date listed on Schedule 7.01 and Liens to secure any Permitted Refinancings of the Indebtedness
with respect thereto;


 


(h)          Liens
on fixed or capital assets or on Real Estate of any Loan Party which secure Indebtedness permitted under clauses (c) or (d) of
the definition of Permitted Indebtedness so long as (i) such Liens and the Indebtedness secured thereby are incurred prior to
or within ninety (90) days after such acquisition, (ii) the Indebtedness secured thereby does not exceed the cost of acquisition
of the applicable assets, and (iii) such Liens shall attach only to the assets or Real Estate acquired, improved or refinanced
with such Indebtedness and shall not extend to any other property or assets of the Loan Parties;


 


(i)     
     Liens in favor of the Agent;


 


(j)         
 landlords’ and lessors’ statutory Liens in respect of rent not in default;


 


(k)          possessory
Liens in favor of brokers and dealers arising in connection with the acquisition or disposition of Investments owned as of the
Closing Date and other Permitted Investments, provided that such liens (a) attach only to such Investments and (b) secure
only obligations incurred in the ordinary course and arising in connection with the acquisition or disposition of such Investments
and not any obligation in connection with margin financing;


 


(l)     
     Liens arising solely by virtue of any statutory or common law provisions relating to banker’s
Liens, Liens in favor of securities intermediaries, rights of setoff or similar rights and remedies as to deposit accounts or
securities accounts or other funds maintained with depository institutions or securities intermediaries;


 


(m)          Liens
arising from precautionary UCC filings regarding “true” operating leases or, to the extent permitted under the Loan
Documents, the consignment of goods to a Loan Party;


 


(n)          voluntary
Liens on property (other than property of the type included in the Borrowing Base) in existence at the time such property is acquired
pursuant to a Permitted Acquisition or on such property of a Subsidiary of a Loan Party in existence at the time such Subsidiary
is acquired pursuant to a Permitted Acquisition; provided, that such Liens are not incurred in connection with or in anticipation
of such Permitted Acquisition and do not attach to any other assets of any Loan Party or any Subsidiary;


 






    -33-


     

    

 


(o)          Liens
in favor of customs and revenues authorities imposed by applicable Laws arising in the ordinary course of business in connection
with the importation of goods and securing obligations, in each case to the extent the following conditions are satisfied: (A) that
are being contested in good faith by appropriate proceedings, (B) as to which the applicable Loan Party or Subsidiary has set
aside on its books adequate reserves with respect thereto in accordance with GAAP and (C) as to which such contest effectively
suspends collection of the contested obligation and enforcement of any Lien securing such obligation; and


 


(p)          Liens
held by the Term Loan Agent to secure Term Loan Obligations, in an aggregate principal amount not to exceed, to the extent applicable,
the Maximum Priority Term Loan Debt (as defined in the Intercreditor Agreement); and


 


(q)          additional
Liens not specified above, securing aggregate liabilities not in excess of $250,000.


 


“Permitted
Indebtedness” means each of the following:


 


(a)          Indebtedness
outstanding on the Closing Date listed on Schedule 7.03 and any Permitted Refinancing thereof;


 


(b)          Indebtedness
of any Loan Party to any other Loan Party;


 


(c)          purchase
money Indebtedness of any Loan Party to finance the acquisition of any personal property consisting solely of fixed or capital
assets, including Capital Lease Obligations, and any Indebtedness assumed in connection with the acquisition of any such assets
or secured by a Lien on any such assets prior to the acquisition thereof, and Permitted Refinancings thereof, provided,
however, that the aggregate principal amount of Indebtedness permitted by this clause (c) shall not exceed $500,000 at
any time outstanding and further provided that, if requested by the Agent, the Loan Parties shall use commercially reasonable
efforts to cause the holders of such Indebtedness to enter into a Collateral Access Agreement on terms reasonably satisfactory
to the Agent;


 


(d)          Indebtedness
incurred for the construction or acquisition or improvement of, or to finance or to refinance, any Real Estate owned by any Loan
Party (including therein any Indebtedness incurred in connection with sale-leaseback transactions permitted hereunder and any
Synthetic Lease Obligations), provided, that, the Loan Parties shall use commercially reasonable efforts to cause
the holders of such Indebtedness and the lessors under any sale-leaseback transaction to enter into a Collateral Access Agreement
on terms reasonably satisfactory to the Agent;


 


(e)          obligations
(contingent or otherwise) of any Loan Party or any Subsidiary thereof existing or arising under any Swap Contract, provided
that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of
directly mitigating risks associated with fluctuations in interest rates or foreign exchange rates, and not for purposes of speculation
or taking a “market view” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting
party from its obligation to make payments on outstanding transactions to the defaulting party;


 






    -34-


     

    

 


(f)          Indebtedness
with respect to the deferred purchase price for any Permitted Acquisition; provided that such Indebtedness (i) has a final maturity
which extends beyond the Maturity Date, (ii) is subordinated to the Obligations on terms reasonably acceptable to the Agent, and
(iii) does not require the payment in cash of principal (other than in respect of working capital adjustments) prior to the Maturity
Date unless (w) after giving effect to such payment, the Consolidated Fixed Charge Coverage Ratio for the most recent Fiscal Quarter
for which financial statements have been delivered to Agent shall be greater than 1.0:1.0 on a pro forma basis, (x) after giving
effect to such payment, Availability shall be greater than $2,500,000 on a pro forma basis, (y) no Event of Default exists under
this Agreement and (z) the aggregate amount of all such payments made following the Closing Date shall not exceed 25% of the cumulative
amount of Excess Cash Flow (as defined in the Term Loan Agreement) calculated for each full Fiscal Quarter ending after the Closing
Date;


 


(g)          Indebtedness
of any Person that becomes a Subsidiary of a Loan Party in a Permitted Acquisition, which Indebtedness is existing at the time
such Person becomes a Subsidiary of a Loan Party (other than Indebtedness incurred solely in contemplation of such Person’s
becoming a Subsidiary of a Loan Party);


 


(h)          the
Obligations;


 


(i)     
     guaranties made in the ordinary course of business by a Loan Party or a Subsidiary of the obligations
of another Loan Party;


 


(j)    
      customary indemnities arising under agreements entered into in the ordinary course of business;


 


(k)          Term
Loan Obligations in an aggregate principal amount not to exceed, to the extent applicable, the Maximum Priority Term Loan Debt;
and


 


(l)     
     Indebtedness not otherwise specifically described herein in an aggregate principal amount not to
exceed $250,000 at any time outstanding.


 


“Permitted
Investments” means each of the following:


 


(a)          readily
marketable obligations issued or directly and fully guaranteed or insured by the United States of America or any agency or instrumentality
thereof having maturities of not more than 360 days from the date of acquisition thereof; provided, that, the full faith
and credit of the United States of America is pledged in support thereof;


 


(b)          commercial
paper issued by any Person organized under the laws of any state of the United States of America and rated at least “Prime-1”
(or the then equivalent grade) by Moody’s or at least “A-1” (or the then equivalent grade) by S&P,
in each case with maturities of not more than 180 days from the date of acquisition thereof;


 






    -35-


     

    

 


(c)          time
deposits with, or insured certificates of deposit or bankers’ acceptances of, any commercial bank that (i) (A) is a Lender
or (B) is organized under the laws of the United States of America, any state thereof or the District of Columbia or is the principal
banking subsidiary of a bank holding company organized under the laws of the United States of America, any state thereof or the
District of Columbia, and is a member of the Federal Reserve System, (ii) issues (or the parent of which issues) commercial paper
rated as described in clause (b) of this definition and (iii) has combined capital and surplus of at least $1,000,000,000,
in each case with maturities of not more than 180 days from the date of acquisition thereof;


 


(d)          fully
collateralized repurchase agreements with a term of not more than thirty (30) days for securities described in clause (a) above
(without regard to the limitation on maturity contained in such clause) and entered into with a financial institution satisfying
the criteria described in clause (c) above or with any primary dealer and having a market value at the time that such repurchase
agreement is entered into of not less than 100% of the repurchase obligation of such counterparty entity with whom such repurchase
agreement has been entered into;


 


(e)      
    Investments, classified in accordance with GAAP as current assets of the Loan Parties, in any money market
fund, mutual fund, or other investment companies that are registered under the Investment Company Act of 1940, as amended, which
are administered by financial institutions that have the highest rating obtainable from either Moody’s or S&P, and which
invest solely in one or more of the types of securities described in clauses (a) through (d) above;


 


(f)     
     Investments existing on the Closing Date set forth on Schedule 7.02, but not any increase
in the amount thereof or any other modification of the terms thereof;


 


(g)          (i)
Investments by any Loan Party and its Subsidiaries in their respective Subsidiaries outstanding on the Closing Date, (ii) additional
Investments by any Loan Party and its Subsidiaries in Loan Parties (other than the Parent), (iii) additional Investments by Subsidiaries
of the Loan Parties that are not Loan Parties in other Subsidiaries that are not Loan Parties and (iv) so long as no Default or
Event of Default has occurred and is continuing or would result from such Investment, additional Investments by the Loan Parties
in Subsidiaries that are not Loan Parties in an aggregate amount invested after the Closing Date not to exceed $100,000;


 


(h)          Investments
consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit
in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially
troubled account debtors to the extent reasonably necessary in order to prevent or limit loss;


 


(i)      
     Guarantees constituting Permitted Indebtedness;


 


(j)      
    so long as no Default or Event of Default has occurred and is continuing or would result from such Investment,
Investments by any Loan Party in Swap Contracts permitted hereunder;


 






    -36-


     

    

 


(k)          Investments
received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers
and suppliers, in each case in the ordinary course of business;


 


(l)           advances
to officers, directors and employees of the Loan Parties and Subsidiaries in the ordinary course of business in an amount not
to exceed $100,000 at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes;


 


(m)          Investments
constituting Permitted Acquisitions; and


 


(n)          other
Investments not otherwise specifically described herein and not exceeding $100,000 in the aggregate in any period of twelve (12)
consecutive calendar months;


 


provided,
however, that notwithstanding the foregoing, no such Investments specified in clauses (a) through (e) and clause (n) shall
be permitted unless either no Loans are then outstanding, the proceeds of which Investment will be applied to the Obligations,
and (ii) such Investments shall be pledged to the Agent as additional collateral for the Obligations pursuant to such agreements
as may be reasonably required by the Agent.


 


“Permitted
Overadvance” means an Overadvance made by Encina Business
Credit SPV, LLC, at the discretion
of Agent, which:


 


(a)          Is
made to maintain, protect or preserve the Collateral and/or the Credit Parties’ rights under the Loan Documents or which
is otherwise for the benefit of the Credit Parties; or


 


(b)          Is
made to enhance the likelihood of, or to maximize the amount of, repayment of any Obligation; or


 


(c)          Is
made to pay any other amount chargeable to any Loan Party hereunder; and


 


(d)          Together
with all other Permitted Overadvances then outstanding, shall not (i) exceed ten percent (10%) of the Borrowing Base at any
time or (ii) unless a Liquidation is occurring, remain outstanding for more than forty-five (45) consecutive Business Days, unless
in each case, the Required Lenders otherwise agree;


 


provided
however, that the foregoing shall not (i) modify or abrogate any of the provisions of Section 2.03 regarding the Lenders’
obligations with respect to Swing Line Loans, or (ii) result in any claim or liability against the Agent (regardless of the amount
of any Overadvance) for Unintentional Overadvances, and such Unintentional Overadvances shall not reduce the amount of Permitted
Overadvances allowed hereunder, and further provided that in no event shall the Agent make an Overadvance, if after giving
effect thereto, the principal amount of the Credit Extensions would exceed the Aggregate Commitments (as in effect prior to any
termination of the Commitments pursuant to Sections 2.05 or 8.02 hereof).


 






    -37-


     

    

 


“Permitted
Preferred Stock” means (a) the Series A, Series B, Series B1 and Series C preferred Equity Interests of Parent outstanding
as of the Closing Date and (b) preferred Equity Interests issued by Parent after the Closing Date which, in each case, satisfy
the following conditions: (i) do not require the payment of dividends with respect to such preferred Equity Interests other
than in additional shares of common Equity Interests or additional Permitted Preferred Stock (pursuant to the terms of such Permitted
Preferred Stock), (ii) such preferred Equity Interest (A) is not redeemable or subject to mandatory repurchase, in either
case, at the option of the holder thereof (other than solely for additional common Equity Interests or additional Permitted Preferred
Stock), in whole or in part, and (B) is not and does not become convertible into or exchangeable or exercisable for Indebtedness
or any other Equity Interests (other than common Equity Interests or Permitted Preferred Stock), in each case, prior to the date
that is at least ninety-one (91) days after the Maturity Date, and (iii) the other terms of such preferred Equity Interests
are no more restrictive to Parent and its Subsidiaries than the terms applicable to the Series A, Series B, Series B1
and Series C Preferred Equity Interests of Parent outstanding on the Closing Date.


 


“Permitted
Refinancing” means, with respect to any Person, any Indebtedness issued in exchange for, or the net proceeds of which are
used to extend, refinance, renew, replace, defease or refund (collectively, to “Refinance”), the Indebtedness
being Refinanced (or previous refinancings thereof constituting a Permitted Refinancing); provided, that (a) the principal
amount (or accreted value, if applicable) of such Permitted Refinancing does not exceed the principal amount (or accreted value,
if applicable) of the Indebtedness so Refinanced (plus unpaid accrued interest and premiums thereon and underwriting discounts,
defeasance costs, fees, commissions and expenses), (b) the weighted average life to maturity of such Permitted Refinancing is
greater than or equal to the weighted average life to maturity of the Indebtedness being Refinanced (c) such Permitted Refinancing
shall not have maturity shorter than that of the Indebtedness being Refinanced, (d) if the Indebtedness being Refinanced is subordinated
in right of payment to the Obligations under this Agreement, such Permitted Refinancing shall be subordinated in right of payment
to such Obligations on terms at least as favorable to the Credit Parties as those contained in the documentation governing the
Indebtedness being Refinanced, (e) if the Indebtedness being Refinanced is unsecured, such Permitted Refinancing shall be unsecured,
(f) if the Indebtedness being Refinanced is secured, such Permitted Refinancing shall be secured by no more collateral than the
Indebtedness being Refinanced, (g) no Permitted Refinancing shall have direct or indirect obligors who were not also obligors
of the Indebtedness being Refinanced, or greater guarantees or security, than the Indebtedness being Refinanced, (h) such Permitted
Refinancing shall be otherwise on terms not materially less favorable to the Credit Parties than those contained in the documentation
governing the Indebtedness being Refinanced, including, without limitation, with respect to financial and other covenants and
events of default, (i) the interest rate applicable to any such Permitted Refinancing shall not exceed the then applicable market
interest rate, (j) if the Indebtedness being Refinanced is subject to an intercreditor agreement, a representative validly acting
on behalf of the holders of the Permitted Refinancing shall become party thereto or to another intercreditor in form and substance
satisfactory to Agent, and (k) at the time thereof, no Default or Event of Default shall have occurred and be continuing.


 


“Person”
means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, limited
partnership, Governmental Authority or other entity.


 






    -38-


     

    

 


“Plan”
means any “employee benefit plan” within the meaning of Section 3(3) of ERISA (including a Pension Plan), maintained
for employees of a Loan Party or any ERISA Affiliate such Plan to which a Loan Party or any ERISA Affiliate is required to contribute
on behalf of any of its employees.


 


“Platform”
has the meaning specified in Section 6.02.


 


“Prepayment
Event” means:


 


(a)          Any
Disposition (including pursuant to a sale and leaseback transaction) of any property or asset of a Loan Party outside the ordinary
course of business (other than, prior to the Discharge of Term Loan Debt, Term Loan Priority Collateral and assets of Foreign
Subsidiaries of the type that would constitute Term Loan Priority Collateral if such assets were owned by a Loan Party);


 


(b)          Any
casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of (and
payments in lieu thereof), any property or asset of a Loan Party (other than, prior to the Discharge of Term Loan Debt, Term Loan
Priority Collateral), unless the proceeds therefrom are required to be paid to the holder of a Lien on such property or asset
having priority over the Lien of the Agent; provided that, for the avoidance of doubt, receipt of any proceeds relating to the
claim against National Union Fire Insurance Company of Pittsburgh, PA and Assurance Agency, Ltd. shall not constitute a Prepayment
Event;


 


(c)          The
incurrence by a Loan Party of any Indebtedness for borrowed money other than Permitted Indebtedness; or


 


(d)          The
receipt by any Loan Party of any Extraordinary Receipts.


 


“Pro
Forma Availability Condition” shall mean, as of any date of calculation, Pro Forma Excess Availability will be equal to
or greater than $2,500,000.


 


“Pro
Forma Excess Availability” shall mean, as of any date of calculation, after giving pro forma effect to the transaction then
to be consummated or payment to be made, Availability as of the date of such transaction or payment and as of the end of each
Fiscal Month during the subsequent projected twelve (12) Fiscal Months.


 


“Public
Lender” has the meaning specified in Section 6.02.


 


“Public
Market” shall exist if (a) a Public Offering has been consummated and (b) any Equity Interests of the Parent or Lead Borrower
have been distributed by means of an effective registration statement under the Securities Act of 1933.


 


“Public
Offering” means a public offering of the Equity Interests of the Parent or Lead Borrower pursuant to an effective registration
statement under the Securities Act of 1933.


 


“Qualified
ECP Guarantor” means, at any time, each Loan Party with total assets exceeding $10,000,000 or that qualifies at such time
as an “eligible contract participant” under the Commodity Exchange Act and can cause another Person to qualify as
an “eligible contract participant” at such time under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.


 






    -39-


     

    

 


“Real
Estate” means all land, together with the buildings, structures, parking areas, and other improvements thereon, now or hereafter
owned by any Loan Party, including all easements, rights-of-way, and similar rights relating thereto and all leases, tenancies,
and occupancies thereof.


 


“Receivables
Reserves” means such Reserves as may be established from time to time by the Agent in the Agent’s discretion with
respect to the determination of the collectability in the ordinary course of Eligible Trade Receivables, including, without limitation,
Dilution Reserves.


 


“Recipient”
means the Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of any Loan Party
hereunder.


 


“Reference
Bank” means Wells Fargo Bank, National Association.


 


“Register”
has the meaning specified in Section 10.06(c).


 


“Registered
Public Accounting Firm” has the meaning specified by the Securities Laws and shall be independent of the Parent and its
Subsidiaries as prescribed by the Securities Laws.


 


“Regulation
H” means Regulation H of the FRB as in effect from time to time.


 


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


 


“Reportable
Event” means any of the events set forth in Section 4043(c) of ERISA, with respect to a Plan, other than those events for
which the 30 day notice period has been waived.


 


“Reports”
has the meaning provided in Section 9.12(b).


 


“Request
for Credit Extension” means (a) with respect to a Borrowing, a Notice of Borrowing and (b) with respect to a Swing Line
Loan, a Swing Line Loan Notice.


 


“Required
Lenders” means, as of any date of determination, Lenders holding more than 50% of the Aggregate Commitments or, if the Aggregate
Commitments have been terminated or expired, Lenders holding in the aggregate more than 50% of the Total Revolving Outstandings
(with the aggregate amount of each Lender’s risk participation and funded participation in Swing Line Loans being deemed
“held” by such Lender for purposes of this definition); provided that if there are two unaffiliated Lenders,
Required Lenders must include both such Lenders; provided further that the Commitment of, and the portion of the Total
Revolving Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination
of Required Lenders.


 






    -40-


     

    

 


“Reserves”
means all Inventory Reserves and Availability Reserves. The Agent shall have the right, at any time and from time to time after
the Closing Date in its discretion to establish, modify or eliminate Reserves.


 


“Responsible
Officer” means the chief executive officer, president, chief financial officer, treasurer or assistant treasurer of a Loan
Party or any of the other individuals designated in writing to the Agent by an existing Responsible Officer of a Loan Party as
an authorized signatory of any certificate or other document to be delivered hereunder. Any document delivered hereunder that
is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate,
partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to
have acted on behalf of such Loan Party.


 


“Restricted
Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any capital
stock or other Equity Interest of any Person or any of its Subsidiaries, or any payment (whether in cash, securities or other
property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, defeasance, acquisition,
cancellation or termination of any such capital stock or other Equity Interest, or on account of any return of capital to such
Person’s stockholders, partners or members (or the equivalent of any thereof), or any option, warrant or other right to
acquire any such dividend or other distribution or payment. Without limiting the foregoing, “Restricted Payments”
with respect to any Person shall also include all payments made by such Person with any proceeds of a dissolution or liquidation
of such Person.


 


“Revolving
Borrowing” means a borrowing consisting of simultaneous Revolving Loans of the same Type made by each of the Lenders pursuant
to Section 2.01.


 


“Revolving
Credit Exposure” means, with respect to any Lender at any time, the Outstanding Amount of such Lender’s Revolving
Loans at such time.


 


“Revolving
Loan” has the meaning specified in Section 2.01.


 


“S&P”
means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc. and any successor thereto.


 


“Sarbanes-Oxley”
means the Sarbanes-Oxley Act of 2002.


 


“SEC”
means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.


 


“Securities
Laws” means the Securities Act of 1933, the Securities Exchange Act of 1934, Sarbanes-Oxley, and the applicable accounting
and auditing principles, rules, standards and practices promulgated, approved or incorporated by the SEC or the PCAOB.


 


“Security
Agreement” means the Guaranty and Security Agreement dated as of the Closing Date among the Loan Parties and the Agent.


 






    -41-


     

    

 


“Security
Documents” means the Security Agreement, the Account Control Agreements, the Mortgages, and each other security agreement
or other instrument or document executed and delivered to the Agent pursuant to this Agreement or any other Loan Document granting
a Lien to secure any of the Obligations.


 


“Settlement
Date” has the meaning provided in Section 2.13(a).


 


“Shareholders’
Equity” means, as of any date of determination, consolidated shareholders’ equity of the Parent and its Subsidiaries
as of that date determined in accordance with GAAP.


 


“Shrink”
means Inventory which has been lost, misplaced, stolen, or is otherwise unaccounted for.


 


“Shrink
Reserve” means an amount reasonably estimated by the Agent to be equal to that amount which is required in order that the
Shrink reflected in Borrowers’ stock ledger would be reasonably equivalent to the Shrink calculated as part of the Borrowers’
most recent physical inventory.


 


“Solvent”
and “Solvency” means, with respect to any Person and its Subsidiaries on a Consolidated basis on a particular date,
that on such date (a) at fair valuation, all of the properties and assets of such Person are greater than the sum of the debts,
including contingent liabilities, of such Person, (b) the present fair saleable value of the properties and assets of such Person
is not less than the amount that would be required to pay the probable liability of such Person on its debts as they become absolute
and matured, (c) such Person is able to realize upon its properties and assets and pay its debts and other liabilities, contingent
obligations and other commitments as they mature in the normal course of business, (d) such Person does not intend to, and does
not believe that it will, incur debts beyond such Person’s ability to pay as such debts mature, and (e) such Person is not
engaged in a business or a transaction, and is not about to engage in a business or transaction, for which such Person’s
properties and assets would constitute unreasonably small capital after giving due consideration to the prevailing practices in
the industry in which such Person is engaged. The amount of all guarantees at any time shall be computed as the amount that, in
light of all the facts and circumstances existing at the time, can reasonably be expected to become an actual or matured liability.


 


“Specified
Loan Party” means any Loan Party that is not then an “eligible contract participant” under the Commodity Exchange
Act (determined prior to giving effect to Section 10.26).


 


“Subordinated
Indebtedness” means Indebtedness which is expressly subordinated in right of payment to the prior payment in full of the
Obligations and which is in form and on terms approved in writing by the Agent.


 


“Subsidiary”
of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority
of the Equity Interests having ordinary voting power for the election of directors or other governing body are at the time beneficially
owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both,
by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries”
shall refer to a Subsidiary or Subsidiaries of a Loan Party.


 






    -42-


     

    

 


“Swap
Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions,
commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or
bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward
foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency
rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any
master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms
and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association,
Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together
with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master
Agreement.


 


“Swap
Obligations” 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.


 


“Swap
Termination Value” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally
enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have
been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior
to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined
based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts
(which may include a Lender or any Affiliate of a Lender).


 


“Swing
Line Borrowing” means a borrowing of a Swing Line Loan pursuant to Section 2.03.


 


“Swing
Line Lender” means Encina Business
Credit SPV, LLC, in its capacity
as provider of Swing Line Loans, or any successor swing line lender hereunder.


 


“Swing
Line Loan” has the meaning specified in Section 2.03(a).


 


“Swing
Line Loan Notice” means a notice of a Swing Line Borrowing pursuant to Section 2.03(b), which, if in writing, shall
be substantially in the form of Exhibit B.


 


“Swing
Line Sublimit” means an amount equal to the lesser of (a) $2,500,000 and (b) the Aggregate Commitments. The Swing Line Sublimit
is part of, and not in addition to, the Aggregate Commitments. A permanent reduction of the Aggregate Commitments shall not require
a corresponding pro rata reduction in the Swing Line Sublimit; provided, however, that if the Aggregate Commitments
are reduced to an amount less than the Swing Line Sublimit, then the Swing Line Sublimit shall be reduced to an amount equal to
(or, at Lead Borrower’s option, less than) the Aggregate Commitments.


 






    -43-


     

    

 


“Synthetic
Lease Obligation” means the monetary obligation of a Person under (a) a so-called synthetic, off-balance sheet or tax retention
lease, or (b) an agreement for the use or possession of property (including sale and leaseback transactions), in each case, creating
obligations that do not appear on the balance sheet of such Person but which, upon the application of any Debtor Relief Laws to
such Person, would be characterized as the indebtedness of such Person (without regard to accounting treatment).


 


“Taxes”
means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments,
fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable
thereto.


 


“Term
Loan” means, collectively, the term loan or loans made to the Borrowers on or after the Closing Date by those lenders party
to the Term Loan Agreement, together with any permitted renewals, replacements and refinancings thereof in accordance with the
Intercreditor Agreement.


 


“Term
Loan Agent” means Encina, in its capacity as administrative agent and collateral agent under the Term Loan Agreement, and
its successors and assigns appointed pursuant to the terms of the Term Loan Agreement in such capacity.


 


“Term
Loan Agreement” (i) that certain Credit Agreement dated as of the Closing Date among the Borrower, the Term Loan Lenders,
the Term Loan Agent and each of the other Persons party thereto and (ii) each loan or credit agreement evidencing any initial
or subsequent replacement, substitution, renewal or refinancing of the obligations under the credit agreement referred to in clause
(i) in accordance with the terms of the Intercreditor Agreement, in each case as amended, amended and restated, supplemented,
modified, replaced, substituted, renewed or refinanced in accordance with this Agreement and the Intercreditor Agreement.


 


“Term
Loan Documents” means the “Loan Documents” as defined in the Term Loan Agreement.


 


“Term
Loan Event of Default” means an “Event of Default” under and as defined in the Term Loan Agreement.


 


“Term
Loan Lenders” means the Persons party to the Term Loan Agreement as “Lenders” thereunder.


 


“Term
Loan Obligations” means “Obligations” under and as defined in the Term Loan Agreement.


 


“Term
Loan Priority Collateral” has the meaning given to such term in the Intercreditor Agreement.


 


“Terminaling
Agreement” means that certain Terminaling Services Agreement dated as of May 1, 2008, between Magellan Terminals Holdings,
L.P. (f/k/a Marrero Terminal LLC) and Vertex Refining LA, LLC (as successor in interest to Omega Refining, LLC., as amended prior
to and in effect as of the Closing Date.


 






    -44-


     

    

 


“Termination
Date” means the earliest to occur of (i) the Maturity Date, (ii) the date on which the maturity of the Obligations is accelerated
and the Commitments are irrevocably terminated in accordance with Article VIII, or (iii) the termination of the Commitments
in accordance with the provisions of Section 2.05 hereof.


 


“Total
Revolving Outstandings” means the aggregate Outstanding Amount of all Loans.


 


“Trading
with the Enemy Act” has the meaning set forth in Section 10.18.


 


“Type”
means, with respect to a Revolving Loan, its character as a Base Rate Loan or a LIBOR Rate Loan.


 


“UCC”
or “Uniform Commercial Code” shall have the meaning given to such term in the Security Agreement.


 


“UFCA
“ has the meaning specified in Section 10.21(c).


 


“UFTA”
has the meaning specified in Section 10.21(c).


 


“Unintentional
Overadvance” means an Overadvance which, to the Agent’s knowledge, did not constitute an Overadvance when made but
which has become an Overadvance resulting from changed circumstances beyond the control of the Credit Parties, including, without
limitation, a reduction in the Appraised Value of property or assets included in the Borrowing Base or misrepresentation by the
Loan Parties.


 


“United
States” and “U.S.” mean the United States of America.


 


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


 


“U.S.
Tax Compliance Certificate” has the meaning specified in Section 3.01(e)(ii)(B)(III).


 


“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.


 






    -45-


     

    

 


1.02.        Other
Interpretive Provisions.    With reference to this Agreement and each other Loan Document, unless otherwise
specified herein or in such other Loan Document:


 


(a)          The
definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,”
“includes” and “including” shall be deemed to be followed by the phrase “without limitation.”
The word “will” shall be construed to have the same meaning and effect as the word “shall.”
Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document (including
any Organization Document) shall be construed as referring to such agreement, instrument or other document as from time to time
amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set
forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include such Person’s
successors and assigns, (iii) the words “herein,” “hereof” and “hereunder,”
and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety
and not to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and Schedules
shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, the Loan Document in which such references
appear, (v) any reference to any law shall include all statutory and regulatory rules, regulations, orders and provisions consolidating,
amending, replacing or interpreting such law and any reference to any law or regulation shall, unless otherwise specified, refer
to such law or regulation as amended, modified or supplemented from time to time, and (vi) the words “asset”
and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible
and intangible assets and properties, including cash, securities, accounts and contract rights.


 


(b)          In
the computation of periods of time from a specified date to a later specified date, the word “from” means “from
and including;” the words “to” and “until” each mean “to but excluding;”
and the word “through” means “to and including.”


 


(c)          Section
headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation
of this Agreement or any other Loan Document.


 


(d)          Any
reference herein or in any other Loan Document to the satisfaction, repayment, or payment in full of the Obligations shall mean
the repayment in Dollars in full in cash or immediately available funds (or, in the case of contingent reimbursement obligations
with respect to Bank Products (other than Swap Contracts), providing cash collateralization) of all of the 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 Swap Contracts) other than (i) unasserted contingent indemnification Obligations, (ii) any Obligations
relating to Bank Products (including Swap Contracts) 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 Obligations relating to Cash Management
Services that, at such time, are allowed by the applicable provider of such Cash Management Services to remain outstanding without
being required to be repaid.


 


1.03.        Accounting
Terms


 


(a)          Generally.
All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data
(including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared
in conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that
used in preparing the Audited Financial Statements, except as otherwise specifically prescribed herein.


 






    -46-


     

    

 


(b)          Changes
in GAAP. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in
any Loan Document, and either the Lead Borrower or the Required Lenders shall so request, the Agent, the Lenders and the Lead
Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of
such change in GAAP (subject to the approval of the Required Lenders); provided that, until so amended, (i) such ratio
or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Lead Borrower
shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably
requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving
effect to such change in GAAP.


 


1.04.        Rounding.
   Any financial ratios required to be maintained by the Loan Parties pursuant to this Agreement shall be calculated
by dividing the appropriate component by the other component, carrying the result to one place more than the number of places
by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there
is no nearest number).


 


1.05.        Times
of Day.    Unless otherwise specified, all references herein to times of day shall be references to Central
time (daylight or standard, as applicable).


 


ARTICLE
II

THE COMMITMENTS AND CREDIT EXTENSIONS


 


2.01.          Revolving
Loans; Reserves.     Subject to the terms and conditions set forth herein, each Lender with a Commitment
severally agrees to make loans (each such loan, a “Revolving Loan”) to the Borrowers from time to time, on any Business
Day during the Availability Period, in an aggregate amount not to exceed at any time outstanding the lesser of (x) the amount
of such Lender’s Commitment, or (y) such Lender’s Applicable Percentage of the Borrowing Base; subject in each case
to the following limitations:


 


(a)          after
giving effect to any Revolving Borrowing, the Total Revolving Outstandings shall not exceed the Loan Cap, and


 


(b)          after
giving effect to any Revolving Borrowing, the aggregate Outstanding Amount of the Revolving Loans of any Lender, plus such
Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Commitment.


 


Within
the limits of each Lender’s Commitment, and subject to the other terms and conditions hereof, the Borrowers may borrow under
this Section 2.01, prepay under Section 2.04, and reborrow under this Section 2.01.


 






    -47-


     

    



 


2.02.        Borrowings
of Loans.


 


(a)          All
Revolving Loans shall be LIBOR Rate Loans subject to and in accordance with this Section 2.02.


 


(b)          Each
Revolving Borrowing shall be made upon the Lead Borrower’s irrevocable notice to the Agent, which may be given by telephone.
Each such notice must be received by the Agent not later than noon one (1) Business Day prior to the requested date of any Borrowing.
Each telephonic notice by the Lead Borrower pursuant to this Section 2.02(b) must be confirmed promptly by delivery to the
Agent of a written Notice of Borrowing, appropriately completed and signed by a Responsible Officer of the Lead Borrower. Each
Borrowing shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof. Each Notice of Borrowing
(whether telephonic or written) shall specify (i) the name of the applicable Borrower, (ii) the requested date of the Borrowing
(which shall be a Business Day), (iii) the principal amount of Loans borrowed and (v) whether such Borrowing will be a Base Rate
Borrowing or a LIBOR Borrowing.


 


(c)          Following
receipt of a Notice of Borrowing, the Agent shall promptly notify each Lender of the amount of its Applicable Percentage of the
applicable Revolving Loan. In the case of a Revolving Borrowing, each Lender shall make the amount of its Revolving Loan available
to the Agent in immediately available funds at the Agent’s Office not later than noon on the Business Day specified in the
applicable Notice of Borrowing. Upon satisfaction of the applicable conditions set forth in Section 4.02 (and, if such Borrowing
is the initial Credit Extension, Section 4.01), the Agent shall make all funds so received available to the Borrowers in like funds
as received by the Agent either by (i) crediting the account of the Lead Borrower on the books of Encina with the amount of such
funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable
to) the Agent by the Lead Borrower.


 


(d)          The
Agent, without the request of the Lead Borrower, may advance any interest, fee, service charge (including direct wire fees), expenses,
or other payment to which any Credit Party is at such time entitled from the Loan Parties pursuant hereto or any other Loan Document
and may charge the same to the Loan Account notwithstanding that an Overadvance may result thereby. The Agent shall advise the
Lead Borrower of any such advance or charge promptly after the making thereof. Such action on the part of the Agent shall not constitute
a waiver of the Agent’s rights and the Borrowers’ obligations under Section 10.04. Any amount which is added
to the principal balance of the Loan Account as provided in this Section 2.02(d) shall bear interest at the interest rate
then and thereafter applicable to Base Rate Loans.


 


(e)          At
any time that Base Rate Loans are outstanding, the Agent shall notify the Lead Borrower and the Lenders of any change in Reference
Bank’s prime rate used in determining the Base Rate promptly following the public announcement of such change.


 






     -48-


     


    

 


(f)           The
Agent, the Lenders and the Swing Line Lender shall have no obligation to make any Loan if an Overadvance would result. The
Agent may, in its discretion, make Permitted Overadvances without the consent of the Borrowers, the Lenders, the Swing Line
Lender and the Borrowers and each Lender shall be bound thereby. Any Permitted Overadvance may, but shall not be required to,
constitute a Swing Line Loan. A Permitted Overadvance is for the account of the Borrowers and shall constitute a Revolving
Borrowing and an Obligation and shall be repaid by the Borrowers in accordance with the provisions of Section 2.06.
The making of any such Permitted Overadvance on any one occasion shall not obligate the Agent or any Lender to make or permit
any Permitted Overadvance on any other occasion or to permit such Permitted Overadvances to remain outstanding. The making by
the Agent of a Permitted Overadvance shall not modify or abrogate any of the provisions of Section 2.03 regarding the
Lenders’ obligations to purchase participations with respect to Swing Line Loans. The Agent shall have no liability
for, and no Loan Party or Credit Party shall have the right to, or shall, bring any claim of any kind whatsoever against the
Agent with respect to Unintentional Overadvances regardless of the amount of any such Overadvance(s).


 


2.03.         Swing
Line Loans.


 


(a)           The
Swing Line. Subject to the terms and conditions set forth herein, the Swing Line Lender may, in its sole discretion, in reliance
upon the agreements of the other Lenders set forth in this Section 2.03, to make loans (each such loan, a “Swing
Line Loan”) to the Borrowers from time to time on any Business Day during the Availability Period in an aggregate amount
not to exceed at any time outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans,
when aggregated with the Applicable Percentage of the Outstanding Amount of Revolving Loans of the Lender acting as Swing Line
Lender, may exceed the amount of such Lender’s Commitment; provided, however, that after giving effect to any
Swing Line Loan, (i) the Total Revolving Outstandings shall not exceed the Loan Cap, and (ii) the aggregate Outstanding Amount
of the Revolving Loans of any Lender at such time, plus such Lender’s Applicable Percentage of the Outstanding Amount
of all Swing Line Loans at such time shall not exceed such Lender’s Commitment, and provided, further, that
the Borrowers shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan, and provided further
that the Swing Line Lender shall not be obligated to make any Swing Line Loan if it shall determine (which determination shall
be conclusive and binding absent manifest error) that it has, or by such Credit Extension may have, Fronting Exposure). Within
the foregoing limits, and subject to the other terms and conditions hereof, the Borrowers may borrow under this Section 2.03,
prepay under Section 2.04, and reborrow under this Section 2.03. Each Swing Line Loan shall bear interest only at
the LIBOR Rate. Immediately upon the making of a Swing Line Loan, each Lender shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the Swing Line Lender a risk participation in such Swing Line Loan in an amount equal to the product of
such Lender’s Applicable Percentage multiplied by the amount of such Swing Line Loan. The Swing Line Lender shall
have all of the benefits and immunities (A) provided to the Agent in Article IX with respect to any acts taken or omissions
suffered by the Swing Line Lender in connection with Swing Line Loans made by it or proposed to be made by it as if the term “Agent”
as used in Article IX included the Swing Line Lender with respect to such acts or omissions, and (B) as additionally provided
herein with respect to the Swing Line Lender.


 






     -49-


     


    

 


(b)          Borrowing
Procedures. Each Swing Line Borrowing shall be made upon the Lead Borrower’s irrevocable notice to the Swing Line
Lender and the Agent, which may be given by telephone. Each such notice must be received by the Swing Line Lender and the
Agent not later than 11:00 a.m. on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall
be a minimum of $100,000, and (ii) the requested borrowing date, which shall be a Business Day. Each such telephonic notice
must be confirmed promptly by delivery to the Swing Line Lender and the Agent of a written Swing Line Loan Notice,
appropriately completed and signed by a Responsible Officer of the Lead Borrower. Promptly after receipt by the Swing Line
Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the Agent (by telephone or in
writing) that the Agent has also received such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the
Agent (by telephone or in writing) of the contents thereof. Unless the Swing Line Lender has received notice (by telephone or
in writing) from the Agent at the request of the Required Lenders prior to 2:00 p.m. on the date of the proposed Swing Line
Borrowing (A) directing the Swing Line Lender not to make such Swing Line Loan as a result of the limitations set forth in
the provisos to the first sentence of Section 2.03(a), or (B) that one or more of the applicable conditions specified
in Article IV is not then satisfied, then, subject to the terms and conditions hereof, the Swing Line Lender may, not
later than 4:00 p.m. on the borrowing date specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan
available to the Borrowers either by (i) crediting the account of the Lead Borrower on the books of Encina with the amount of
such funds or (ii) wire transferring such funds, in each case in accordance with instructions provided to (and reasonably
acceptable to) the Swing Line Lender by the Lead Borrower.


 


(c)       
   Refinancing of Swing Line Loans.


 


(i)           In
addition to settlements required under Section 2.13 hereof, the Swing Line Lender at any time in its sole and absolute discretion
may request, on behalf of the Borrowers (which hereby irrevocably authorize the Swing Line Lender to so request on their behalf),
that each Lender make a LIBOR Loan in an amount equal to such Lender’s Applicable Percentage of the amount of Swing Line Loans
then outstanding. Such request shall be made in writing (which written request shall be deemed to be a Notice of Borrowing for
purposes hereof) and in accordance with the requirements of Section 2.02, without regard to the minimum and multiples specified
therein for the principal amount of LIBOR Rate Loans, but subject to the unutilized portion of the Loan Cap and the conditions
set forth in Section 4.02. The Swing Line Lender shall furnish the Lead Borrower with a copy of the applicable Notice of
Borrowing promptly after delivering such notice to the Agent. Each Lender shall make an amount equal to its Applicable Percentage
of the amount specified in such Notice of Borrowing available to the Agent in immediately available funds for the account of the
Swing Line Lender at the Agent’s Office not later than 11:00 a.m. on the day specified in such Notice of Borrowing, whereupon,
subject to Section 2.03(c)(ii), each Lender that so makes funds available shall be deemed to have made a LIBOR Rate Loan
to the Borrowers in such amount. The Agent shall remit the funds so received to the Swing Line Lender.


 


(ii)          If
for any reason any Swing Line Loan cannot be refinanced by such a Revolving Borrowing in accordance with Section 2.03(c)(i),
the request for LIBOR Rate Loans submitted by the Swing Line Lender as set forth herein shall be deemed to be a request by the
Swing Line Lender that each of the Lenders fund its risk participation in the relevant Swing Line Loan and each Lender’s
payment to the Agent for the account of the Swing Line Lender pursuant to Section 2.03(c)(i) shall be deemed payment in
respect of such participation.


 






     -50-


     


    

 


(iii)      If
any Lender fails to make available to the Agent for the account of the Swing Line Lender any amount required to be paid by such
Lender pursuant to the foregoing provisions of this Section 2.03(c) by the time specified in Section 2.03(c)(i),
the Swing Line Lender shall be entitled to recover from such Lender (acting through the Agent), on demand, such amount with interest
thereon for the period from the date such payment is required to the date on which such payment is immediately available to the
Swing Line Lender at a rate per annum equal the costs thereof to Borrowers in accordance with the terms of this Agreement, as determined
by Agent. If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s
Revolving Loan included in the relevant Revolving Borrowing or funded participation in the relevant Swing Line Loan, as the case
may be. A certificate of the Swing Line Lender submitted to any Lender (through the Agent) with respect to any amounts owing under
this clause (iii) shall be conclusive absent manifest error.


 





(iv)      Each
Lender’s obligation to make Revolving Loans or to purchase and fund risk participations in Swing Line Loans pursuant to this
Section 2.03(c) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff,
counterclaim, recoupment, defense or other right which such Lender may have against the Swing Line Lender, the Borrowers or any
other Person for any reason whatsoever, (B) the occurrence or continuance of a Default or an Event of Default, or (C) any other
occurrence, event or condition, whether or not similar to any of the foregoing; provided, however, that each Lender’s
obligation to make Revolving Loans pursuant to this Section 2.03(c) is subject to the conditions set forth in Section
4.02. No such funding of risk participations shall relieve or otherwise impair the obligation of the Borrowers to repay Swing
Line Loans, together with interest as provided herein.


 


(d)        
  Repayment of Participations.


 


(i)   
    At any time after any Lender has purchased and funded a risk participation in a Swing Line Loan, if
the Swing Line Lender, or the Agent on behalf of the Swing Line Lender, receives any payment on account of such Swing Line
Loan, the Swing Line Lender will distribute such payment to the Agent and the Agent shall distribute to each such Lender its
Applicable Percentage of such payment (appropriately adjusted, in the case of interest payments, to reflect the period of
time during which such Lender’s risk participation was funded) in the same funds as those received by the Swing Line
Lender.


 


(ii)          If
any payment received by the Swing Line Lender, or the Agent on behalf of the Swing Line Lender, in respect of principal or interest
on any Swing Line Loan is required to be returned by the Swing Line Lender under any of the circumstances described in Section
10.05 (including pursuant to any settlement entered into by the Swing Line Lender in its discretion), each Lender shall pay
to the Swing Line Lender its Applicable Percentage thereof on demand of the Agent, plus interest thereon from the date of such
demand to the date such amount is returned, at a rate per annum equal to the Federal Funds Rate. The Agent will make such demand
upon the request of the Swing Line Lender. The obligations of the Lenders under this clause shall survive the payment in full of
the Obligations and the termination of this Agreement.


 






     -51-


     


    

 


(e)          Interest
for Account of Swing Line Lender. The Swing Line Lender shall be responsible for invoicing the Borrowers for interest on
the Swing Line Loans. Until each Lender funds its LIBOR Rate Loan or risk participation pursuant to this Section 2.03
to refinance such Lender’s Applicable Percentage of any Swing Line Loan, interest in respect of such Applicable
Percentage shall be solely for the account of the Swing Line Lender.


 


(f)          Payments
Directly to Swing Line Lender. The Borrowers shall make all payments of principal and interest in respect of the Swing Line
Loans directly to the Swing Line Lender.


 


2.04.        Mandatory
Prepayments.


 


(a)          Unintentional
Overadvance. The Borrowers shall within one Business Day prepay Revolving Loans to the extent necessary so that the Total Revolving
Outstandings of the Lenders shall not at any time exceed the Aggregate Commitments then in effect. Upon the request of the Required
Lenders, the Borrowers shall within one Business Day prepay Revolving Loans to the extent necessary so that the Total Revolving
Outstandings of the Lenders shall not at any time exceed the Loan Cap then in effect.


 


(b)          Prepayment
Events. Upon the occurrence of any Prepayment Event, (i) Lead Borrower shall promptly notify Agent of such proposed Prepayment
Event (in the case of a Disposition) (including the amount of the estimated Net Proceeds to be received by a Loan Party and/or
such Subsidiary in respect thereof) and (ii) promptly upon receipt by a Loan Party and/or such Subsidiary of the Net Proceeds of
such Prepayment Event, Borrower shall deliver, or cause to be delivered, such Net Proceeds to Agent for distribution to the Lenders
as a prepayment of the Loans, which prepayment shall be applied in accordance with Section 2.04(c) hereof; provided,
that, in the case of a Disposition, any Net Proceeds received by a Loan Party upon the Disposition of assets in excess of the
most recent appraised value of such assets shall not be required to be delivered to Agent pursuant to this Section 2.04(b);
and provided, further, that in the case of a Disposition permitted under clause (f) or (h) of the definition of “Permitted
Disposition”, such prepayment shall not be required. Notwithstanding the foregoing and provided no Event of Default has occurred
and is continuing, in the case of a prepayment resulting from a Prepayment Event as described in clause (a) or (b)
of the definition thereof, such prepayment shall not be required to the extent a Loan Party or such Subsidiary reinvests the Net
Proceeds of any Prepayment Event in productive assets (other than Inventory (except to the extent Inventory was subject to a Prepayment
Event as described in clause (b) of the definition thereof)) of a kind then used or usable in the business of any Borrower
or such Subsidiary, within one hundred eighty (180) days after the date of such Prepayment Event, or enters into a binding commitment
thereof within said one hundred eighty (180) day period and subsequently makes such reinvestment within an additional one hundred
eighty (180) days thereafter; provided that Lead Borrower notifies Agent of such Borrower’s or such Subsidiary’s intent
to reinvest and of the completion of such reinvestment at the time such proceeds are received and when such reinvestment occurs,
respectively.


 


(c)          Any
prepayments pursuant to Section 2.04(b) shall be applied first to prepay outstanding Swing Line Loans and second to prepay
outstanding Revolving Loans without permanent reduction of the Aggregate Commitment.


 






     -52-


     


    







 


2.05.        Termination
of Commitments.


 


(a)          The
Borrowers may, upon irrevocable notice from the Lead Borrower to the Agent, terminate the Aggregate Commitments (subject to Section
2.08(c)); provided, that, (i) any such notice shall be received by the Agent not later than 11:00 a.m. five Business
Days prior to the date of termination, and (ii) the Borrowers shall not terminate the Aggregate Commitments if, after giving effect
thereto and to any concurrent prepayments hereunder, the Total Revolving Outstandings would exceed the Aggregate Commitments.


 


(b)          The
Agent will promptly notify the Lenders of any termination of the Aggregate Commitments under this Section 2.05.


 


2.06.        Repayment
and Amortization of Obligations. Except as provided in Section 10.11 with respect to the collateralization of the Other
Liabilities, the Borrower shall repay to the Lenders on the Termination Date all Obligations with respect to Revolving Loans outstanding
on such date (other than contingent indemnification claims for which a claim has not been asserted).


 


2.07.        Interest.


 


(a)          Subject
to the provisions of Section 2.07(b) below, (i) each LIBOR Rate Loan shall bear interest on the outstanding principal amount
thereof at a rate per annum equal to the LIBOR Rate plus the Applicable Margin for LIBOR Rate Loans; and (ii) each Base
Rate Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum
equal to the Base Rate plus the Applicable Margin for Base Rate Loans.


 


(b)           (i)         If any
amount payable under any Loan Document is not paid when due (without regard to any applicable grace periods), whether at stated
maturity, by acceleration or otherwise, such amount shall thereafter bear interest at a fluctuating interest rate per annum at
all times equal to the Default Rate to the fullest extent permitted by Law.


 


(ii)          If
any other Event of Default exists, then the Agent may, and upon the request of the Required Lenders shall, notify the Lead Borrower
that all outstanding Obligations shall bear interest retroactively from the date such Default arose at a fluctuating interest rate
per annum at all times equal to the Default Rate and such Obligations shall bear interest retroactively from the date such Default
arose at the Default Rate to the fullest extent permitted by Law.


 


(iii)         Accrued
and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand.


 


(c)          Except
as provided in Section 2.07(b)(iii), interest on each Loan shall be due and payable in arrears on each Interest Payment
Date applicable thereto (commencing with the first Business Day of the first month following the Closing Date) and at such other
times as may be specified herein, including upon termination or expiration of the Commitments, and will be charged to the loan
accounts of Borrowers by Agent in the ordinary course. Interest hereunder shall be due and payable in accordance with the terms
hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.


 






     -53-


     


    




  


2.08. 
      Fees.


 


 (a)         Commitment
Fee. The Borrowers shall pay to the Agent for the account of each Lender in accordance with its Applicable Percentage with
respect to Commitments, a commitment fee (the “Commitment Fee”) equal to the Commitment Fee Percentage multiplied
by the actual daily amount by which the Aggregate Commitment exceed the Total Revolving Outstandings with respect to Revolving
Loans (subject to adjustment as provided in Section 2.14) during the immediately preceding quarter. The Commitment Fee
shall accrue at all times during the Availability Period, including at any time during which one or more of the conditions in
Article IV is not met, and shall be due and payable monthly in arrears on the first Business Day of each calendar month,
commencing with the first such date to occur after the Closing Date, and on the last day of the Availability Period.





 


(b)          [Reserved].


 


(c)          Early
Termination Fee. In the event that (i) the Termination Date occurs, for any reason, prior to the Maturity Date or (ii)
the Borrowers reduce (but do not terminate) the Aggregate Commitments prior to the Maturity Date, the Borrowers shall pay to
the Agent, for the ratable benefit of the Lenders, a fee (the “Early Termination Fee”) equal to the following:
(x) two percent (2%) of (I) in the event the Termination Date occurs, the Commitments then in effect (without regard to any
termination thereof) or (II) in the event that the Borrowers reduce the Aggregate Commitments, the amount of such reduction,
if the Termination Date, payment or reduction shall occur at any time on or before the first anniversary of the Closing Date;
(y) one percent (1%) of (I) in the event the Termination Date occurs, the Commitments then in effect (without regard to any
termination thereof) or (II) in the event that the Borrowers reduce the Aggregate Commitments, the amount of such reduction,
if the Termination Date or reduction shall occur at any time on or after the first anniversary of the Closing Date, but prior
to the second anniversary of the Closing Date; and (z) one-half of one percent (0.50%) of (I) in the event the Termination
Date occurs, the Commitments then in effect (without regard to any termination thereof) or (II) in the event that the
Borrowers reduce the Aggregate Commitments, the amount of such reduction, if the Termination Date shall occur at any time on
or after the second anniversary of the Closing Date but prior to the third anniversary of the Closing Date. All parties to
this Agreement agree and acknowledge that the Lenders will have suffered damages on account of the early termination of this
Agreement or any portion of the Commitments and that, in view of the difficulty in ascertaining the amount of such damages,
the Early Termination Fee constitutes reasonable compensation and liquidated damages to compensate the Lenders on account
thereof. Notwithstanding the foregoing, during the period beginning six months prior to the Maturity Date and ending on the
Maturity Date, no Early Termination Fee shall be due if the Lead Borrower provides prior written notice to Agent at least
ninety (90) days prior to the applicable Termination Date.


 


(d)          Other
Fees. The Borrower shall pay to the Agent for their own respective accounts fees in the amounts and at the times specified
in the Fee Letter. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.


 






     -54-


     


    

 


2.09.        Computation
of Interest and Fees. All computations of interest for Base Rate Loans when the Base Rate is determined by Reference
Bank’s “prime rate” shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual
days elapsed. All other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed.
Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof,
for the day on which the Loan or such portion is paid, provided that for purposes of calculating interest, all principal
payments made by or on account of the Borrowers shall be deemed to have been applied to the Loans two (2) Business Day(s) after
receipt; for the avoidance of doubt, for purposes of calculating the amount of Revolving Loans which may be made available under
Section 2.01, all principal payments made by or on account of the Borrowers shall be deemed to have been applied on the date of
receipt. Each determination by the Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes,
absent manifest error.


 


2.10.        Evidence
of Debt.


 


(a)          The
Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by the Agent (the “Loan
Account”) in the ordinary course of business. In addition, each Lender may record in such Lender’s internal records,
an appropriate notation evidencing the date and amount of each Loan from such Lender, each payment and prepayment of principal
of any such Loan, and each payment of interest, fees and other amounts due in connection with the Obligations due to such Lender.
The accounts or records maintained by the Agent and each Lender shall be conclusive absent manifest error of the amount of the
Credit Extensions made by the Lenders to the Borrowers and the interest and payments thereon. Any failure to so record or any error
in doing so shall not, however, limit or otherwise affect the obligation of the Borrowers hereunder to pay any amount owing with
respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the accounts
and records of the Agent in respect of such matters, the accounts and records of the Agent shall control in the absence of manifest
error. Upon the request of any Lender made through the Agent, the Borrowers shall execute and deliver to such Lender (through the
Agent) a promissory note in the form attached hereto as Exhibit H, which shall evidence such Lender’s Loans in addition to
such accounts or records. Each Lender may attach schedules to its promissory note and endorse thereon the date, Type (if applicable),
amount and maturity of its Loans and payments with respect thereto. Upon receipt of an affidavit of a Lender as to the loss, theft,
destruction or mutilation of such Lender’s promissory note and upon cancellation of such promissory note, the Borrowers will
issue, in lieu thereof, a replacement promissory note in favor of such Lender, in the same principal amount thereof and otherwise
of like tenor.


 


(b)          In
addition to the accounts and records referred to in Section 2.10(a), each Lender and the Agent shall maintain in accordance
with its usual practice accounts or records evidencing the purchases and sales by such Lender of participations in Swing Line Loans.
In the event of any conflict between the accounts and records maintained by the Agent and the accounts and records of any Lender
in respect of such matters, the accounts and records of the Agent shall control in the absence of manifest error.


 






     -55-


     


    

 


2.11.        Payments
Generally; Agent’s Clawback.


 


(a)       
  General. All payments to be made by the Borrowers shall be made without condition or deduction for any
counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrowers
hereunder shall be made to the Agent, for the account of the respective Lenders to which such payment is owed, at the
Agent’s Office in Dollars and in immediately available funds not later than 2:00 p.m. on the date specified herein. The
Agent will, subject to Section 2.13 hereof, promptly distribute to each Lender its Applicable Percentage (or other
applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s
Lending Office. All payments received by the Agent after 2:00 p.m. shall, at the option of the Agent, be deemed received on
the next succeeding Business Day and any applicable interest or fee shall continue to accrue. If any payment to be made by
the Borrowers shall come due on a day other than a Business Day, payment shall be made on the next following Business Day
(other than with respect to payment of a LIBOR Loan), and such extension of time shall be reflected in computing interest or
fees, as the case may be.


 


(b)         (i)         Funding
by Lenders; Presumption by Agent. Unless the Agent shall have received notice from a Lender prior to (A) the proposed date
of any Borrowing, or (B) the date that such Lender’s participation in a Swing Line Loan is required to be funded, that such
Lender will not make available to the Agent such Lender’s share of such Borrowing or participation, the Agent may assume
that such Lender has made such share available on such date in accordance with Section 2.02 or Section 2.04, as applicable,
and may, in reliance upon such assumption, make available to the Borrowers or the Swing Line Lender, as applicable, a corresponding
amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing or participation available to the
Agent, then the applicable Lender and the Borrowers severally agree to pay to the Agent forthwith on demand such corresponding
amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available
to the Borrowers to but excluding the date of payment to the Agent, at (A) in the case of a payment to be made by such Lender,
the greater of the Federal Funds Rate and the costs thereof to Borrowers under the terms of this Agreement as determined by Agent,
and (B) in the case of a payment to be made by the Borrowers, the interest rate applicable to Base Rate Loans. If the Borrowers
and such Lender shall pay such interest to the Agent for the same or an overlapping period, the Agent shall promptly remit to the
Borrowers the amount of such interest paid by the Borrowers for such period. If such Lender pays its share of the applicable Borrowing
or participation to the Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing or
participation in such Swing Line Loan. Any payment by the Borrowers shall be without prejudice to any claim the Borrowers may have
against a Lender that shall have failed to make such payment to the Agent.


 


(ii)       Payments
by Borrowers; Presumptions by Agent. Unless the Agent shall have received notice from the Lead Borrower prior to the time at
which any payment is due to the Agent for the account of any of the Lenders hereunder that the Borrowers will not make such payment,
the Agent may assume that the Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders the amount due. In such event, if the Borrowers have not in fact made such payment, then
each of the Lenders severally agrees to repay to the Agent forthwith on demand the amount so distributed to such Lender, in immediately
available funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding
the date of payment to the Agent, at the greater of the Federal Funds Rate and the costs thereof to Borrowers under the terms of
this Agreement as determined by Agent.


 






     -56-


     


    

 


A notice of the Agent to any Lender or
the Lead Borrower with respect to any amount owing under this subsection (b) shall be conclusive, absent manifest error.


 


(c)          Failure
to Satisfy Conditions Precedent. If any Lender makes available to the Agent funds for any Loan to be made by such Lender as
provided in the foregoing provisions of this Article II, and such funds are not made available to the Borrowers by the Agent
because the conditions to the applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance
with the terms hereof (subject to the provisions of the last paragraph of Section 4.02 hereof), the Agent shall return such
funds (in like funds as received from such Lender) to such Lender, without interest.


 


(d)          Obligations
of Lenders Several. The obligations of the Lenders hereunder to make Loans, to fund participations in Swing Line Loans and
to make payments hereunder are several and not joint. The failure of any Lender to make any Loan, to fund any such participation
or to make any payment hereunder on any date required hereunder shall not relieve any other Lender of its corresponding obligation
to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, to purchase
its participation or to make its payment hereunder.


 


(e)          Funding
Source. Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner
or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place
or manner.


 


2.12.     
  Sharing of Payments by Lenders.


 


If any Credit Party
shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of, interest
on, or other amounts with respect to, any of the Obligations resulting in such Credit Party’s receiving payment of a proportion
of the aggregate amount of such Obligations greater than its pro rata share thereof as provided herein (including as in
contravention of the priorities of payment set forth in Section 8.03), then the Credit Party receiving such greater proportion
shall (a) notify the Agent of such fact, and (b) purchase (for cash at face value) participations in the Obligations of the other
Credit Parties, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared
by the Credit Parties ratably and in the priorities set forth in Section 8.03, provided that:


 


(a)          if
any such participations or subparticipations are purchased and all or any portion of the payment giving rise thereto is recovered,
such participations or subparticipations shall be rescinded and the purchase price restored to the extent of such recovery, without
interest; and


 






     -57-


     


    

 


(b)          the
provisions of this Section shall not be construed to apply to (x) any payment made by the Loan Parties pursuant to and in accordance
with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender)
or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or
subparticipations in Swing Line Loans to any Eligible Assignee or Participant, other than to the Borrowers or any Subsidiary thereof
(as to which the provisions of this Section shall apply).


 


Each Loan Party consents to the foregoing
and agrees, to the extent it may effectively do so under Law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against such Loan Party rights of setoff and counterclaim with respect to such participation as fully
as if such Lender were a direct creditor of such Loan Party in the amount of such participation.


 


2.13.        Settlement
Amongst Lenders.


 


(a)          The
amount of each Lender’s Applicable Percentage of outstanding Loans (including, for clarity, outstanding Swing Line Loans),
shall be computed weekly (or more frequently in the Agent’s discretion) and shall be adjusted upward or downward based on
all Loans and repayments of Loans received by the Agent as of 3:00 p.m. on the first Business Day (such date, the “Settlement
Date”) following the end of the period specified by the Agent.


 


(b)          The
Agent shall deliver to each of the Lenders promptly after a Settlement Date a summary statement of the amount of outstanding Loans
for the period and the amount of repayments received for the period. As reflected on the summary statement, each Lender shall transfer
to the Agent (as provided below) or the Agent shall transfer to each Lender, such amounts as are necessary to insure that, after
giving effect to all such transfers, the amount of Loans made by each Lender shall be equal to such Lender’s Applicable Percentage
of all Loans outstanding as of such Settlement Date. If the summary statement requires transfers to be made to the Agent by the
Lenders and is received prior to 11:00 a.m. on a Business Day, such transfers shall be made in immediately available funds no later
than 3:00 p.m. that day; and, if received after 11:00 a.m., then no later than 3:00 p.m. on the next Business Day. The obligation
of each Lender to transfer such funds is irrevocable, unconditional and without recourse to or warranty by the Agent. If and to
the extent any Lender shall not have so made its transfer to the Agent, such Lender agrees to pay to the Agent, forthwith on demand
such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Agent, equal
to the greater of the Federal Funds Rate and the costs thereof to Borrowers under the terms of this Agreement as determined by
Agent.


 


2.14.        Defaulting
Lenders.


 


(a)      
    Adjustments. Notwithstanding anything to the contrary contained in this Agreement, if any
Lender becomes a Defaulting Lender, then, until such time as that Lender is no longer a Defaulting Lender, to the extent
permitted by applicable Law:


 


(i)          Waivers
and Amendments. Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect
to this Agreement shall be restricted as set forth in the definition of “Required Lenders” and Section 10.01.


 






     -58-


     


    

 


(ii)          Defaulting
Lender Waterfall. Any payment of principal, interest, fees or other amounts received by the Agent for the account of such Defaulting
Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise) or received by the Agent from
a Defaulting Lender pursuant to Section 10.08 shall be applied at such time or times as may be determined by the Agent as
follows: first, to the payment of any amounts owing by such Defaulting Lender to the Agent hereunder; second, to the payment on
a pro rata basis of any amounts owing by such Defaulting Lender to the Swing Line Lender hereunder; third, as the Lead Borrower
may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting
Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Agent; fourth, if so determined
by the Agent and the Lead Borrower, to be held in a deposit account and released pro rata in order to satisfy such Defaulting Lender’s
potential future funding obligations with respect to Loans under this Agreement; fifth, to the payment of any amounts owing to
the Lenders or Swing Line Lender as a result of any judgment of a court of competent jurisdiction obtained by any or the Swing
Line Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement;
sixth, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrowers as a result of any
judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting
Lender’s breach of its obligations under this Agreement; and seventh, to such Defaulting Lender or as otherwise directed
by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans in respect
of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made at a time when the conditions
set forth in Section 4.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of all Non-Defaulting
Lenders on a pro rata basis prior to being applied to the payment of any Loans of such Defaulting Lender until such time as all
Loans and funded and unfunded participations in Swing Line Loans are held by the Lenders pro rata in accordance with the Commitments
hereunder without giving effect to Section 2.14(a)(iii)(C). Any payments, prepayments or other amounts paid or payable to
a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender shall be deemed paid to and redirected
by such Defaulting Lender, and each Lender irrevocably consents hereto.


 


(iii)      Certain
Fees.


 


		 (A)	No Defaulting Lender shall be entitled to receive any fee payable under Section 2.08(a)
for any period during which that Lender is a Defaulting Lender (and the Borrowers shall not be required to pay any such fee that
otherwise would have been required to have been paid to that Defaulting Lender).



 


		 (B)	With respect to any fee payable under Section 2.08(a), the Borrowers shall (x) pay to each
Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting
Lender’s participation in Swing Line Loans that has been reallocated to such Non-Defaulting Lender pursuant to clause
(iv) below, (y) pay to the Swing Line Lender, as applicable, the amount of any such fee otherwise payable to such Defaulting
Lender to the extent allocable to such Swing Line Lender’s Fronting Exposure to such Defaulting Lender, and (z) not be required
to pay the remaining amount of any such fee.



 






     -59-


     


    

 


		 (C)	Reallocation of Applicable Percentages to Reduce Fronting Exposure. All or any part of such
Defaulting Lender’s participation in Swing Line Loans shall be reallocated among the Non-Defaulting Lenders in accordance
with their respective Applicable Percentages (calculated without regard to such Defaulting Lender’s Commitment) but only
to the extent that (x) the conditions set forth in Section 4.02 are satisfied at the time of such reallocation (and, unless
the Borrowers shall have otherwise notified the Agent at such time, the Borrowers shall be deemed to have represented and warranted
that such conditions are satisfied at such time), and (y) such reallocation does not cause the aggregate Outstanding Amount of
Obligations of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Commitment. 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.



 


		 (D)	Repayment of Swing Line Loans. If the reallocation described in clause (iii)(D) above cannot,
or can only partially, be effected, the Borrowers shall, without prejudice to any right or remedy available to them hereunder or
under applicable Law prepay Swing Line Loans in an amount equal to the Swing Line Lenders’ Fronting Exposure.



 


(b)          Defaulting
Lender Cure. If the Lead Borrower, the Agent and the Swing Line Lender agree in writing that a Lender is no longer a Defaulting
Lender, the Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to
any conditions set forth therein (which may include arrangements with respect to any cash collateral), that Lender will, to the
extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Agent
may determine to be necessary to cause the Loans and funded and unfunded participations in Swing Line Loans to be held on a pro
rata basis by the Lenders in accordance with their Applicable Percentages (without giving effect to Section 2.14(a)(iii)(C)),
whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect
to fees accrued or payments made by or on behalf of the Borrowers while that Lender was a Defaulting Lender; and provided, further,
that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender
will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting
Lender.


 






     -60-


     


    

 


ARTICLE
III

TAXES, YIELD PROTECTION AND ILLEGALITY;

APPOINTMENT OF LEAD BORROWER


 


3.01.        Taxes.


 


(a)  
        Payments Free of Taxes; Obligation to Withhold; Payments on Account of
Taxes.


 


(i)        Any
and all payments by or on account of any obligation of any Loan Party under any Loan Document shall be made without deduction or
withholding for any Taxes, except as required by applicable Laws. If any applicable Laws (as determined in the good faith discretion
of the Agent) require the deduction or withholding of any Tax from any such payment by the Agent or a Loan Party, then the Agent
or such Loan Party shall be entitled to make such deduction or withholding, upon the basis of the information and documentation
to be delivered pursuant to subsection (e) below.


 


(ii)   
   If any Loan Party or the Agent shall be required by any applicable Laws other than the Code to withhold or
deduct any Taxes from any payment, then (A) such Loan Party or the Agent, as required by such Laws, shall withhold or make
such deductions as are determined by it to be required based upon the information and documentation it has received pursuant
to subsection (e) below, (B) such Loan Party or the Agent, to the extent required by such Laws, shall timely pay the
full amount withheld or deducted to the relevant Governmental Authority in accordance with such Laws, and (C) to the extent
that the withholding or deduction is made on account of Indemnified Taxes, the sum payable by the applicable Loan Party shall
be increased as necessary so that after any required withholding or the making of all required deductions (including
deductions applicable to additional sums payable under this Section 3.01) the applicable Recipient receives an amount
equal to the sum it would have received had no such withholding or deduction been made.


 


(b)     
     Payment of Other Taxes by the Borrowers. Without limiting the provisions of subsection
(a) above, the Borrowers shall timely pay to the relevant Governmental Authority in accordance with applicable Law, or at the
option of the Agent timely reimburse it for the payment of, any Other Taxes.


 


(c)           Tax
Indemnifications.


 


(i)  
     The Loan Parties shall, and each Loan Party does hereby, jointly and severally indemnify each
Recipient, and shall make payment in respect thereof within 10 days after demand therefor, for the full amount of any
Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section
3.01) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient, and any
penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes
were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such
payment or liability delivered to the Lead Borrower by a Lender (with a copy to the Agent), or by the Agent on its own behalf
or on behalf of a Lender, shall be conclusive absent manifest error.


 






     -61-


     


    

 


(ii)       Each
Lender shall, and does hereby, severally indemnify, and shall make payment in respect thereof within 10 days after demand therefor,
(x) the Agent against any Indemnified Taxes attributable to such Lender (but only to the extent that any Loan Party has not already
indemnified the Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so), (y) the Agent
and the Loan Parties, as applicable, against any Taxes attributable to such Lender’s failure to comply with the provisions
of Section 10.06(d) relating to the maintenance of a Participant Register and (z) the Agent and the Loan Parties, as applicable,
against any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Agent or a Loan Party in
connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes
were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment
or liability delivered to any Lender by the Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the
Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan Document
against any amount due to the Agent under this clause (ii).


 


(d)           Evidence
of Payments. Upon request by the Lead Borrower or the Agent, as the case may be, after any payment of Taxes by the Lead Borrower
or by the Agent to a Governmental Authority as provided in this Section 3.01, the Lead Borrower shall deliver to the Agent
or the Agent shall deliver to the Lead Borrower, as the case may be, the original or a certified copy of a receipt issued by such
Governmental Authority evidencing such payment, a copy of any return required by Laws to report such payment or other evidence
of such payment reasonably satisfactory to the Lead Borrower or the Agent, as the case may be.


 


(e)           Status
of Lenders; Tax Documentation.


 


(i)    
   Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments
made under any Loan Document shall deliver to the Lead Borrower and the Agent, at the time or times reasonably requested by
the Lead Borrower or the Agent, such properly completed and executed documentation reasonably requested by the Lead Borrower
or the Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition,
any Lender, if reasonably requested by the Lead Borrower or the Agent, shall deliver such other documentation prescribed by
applicable Law or reasonably requested by the Lead Borrower or the Agent as will enable the Lead Borrower or the Agent to
determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding
anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation
(other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) and (ii)(D) below) shall not
be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender
to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such
Lender.


 






     -62-


     


    

 


(ii)   Without
limiting the generality of the foregoing, in the event that the Lead Borrower is a U.S. Person,


 


		(A)	any Lender that is a U.S. Person shall deliver to the Lead Borrower and the Agent on or prior to
the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request
of the Lead Borrower or the Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal
backup withholding tax;



 


		(B)	any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Lead Borrower
and the Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender
becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Lead Borrower or the
Agent), whichever of the following is applicable:



 


		(1)	in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United
States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN establishing
an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty
and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN establishing an exemption from,
or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article
of such tax treaty;



 


		(2)	executed originals of IRS Form W-8ECI;



 


		(3)	in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under
Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit F-1 to the effect that such Foreign Lender
is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the
Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in
Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed originals of IRS Form
W-8BEN; or



 






     -63-


     


    

 


		(4)	to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY,
accompanied by IRS Form W-8ECI, IRS Form W-8BEN, a U.S. Tax Compliance Certificate substantially in the form of Exhibit F-2
or Exhibit F-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided
that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the
portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit
F-4 on behalf of each such direct and indirect partner;



 


		(C)	any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Lead Borrower
and the Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender
becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Lead Borrower or the
Agent), executed originals of any other form prescribed by applicable Law as a basis for claiming exemption from or a reduction
in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable
Law to permit the Lead Borrower or the Agent to determine the withholding or deduction required to be made; and



 


		(D)	if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding
Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those
contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Lead Borrower and the Agent
at the time or times prescribed by law and at such time or times reasonably requested by the Lead Borrower or the Agent such documentation
prescribed by applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation
reasonably requested by the Lead Borrower or the Agent as may be necessary for the Lead Borrower and the Agent to comply with their
obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine
the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include
any amendments made to FATCA after the date of this Agreement.



 



     -64-


     


    

 





		(E)	Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or
becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Lead Borrower
and the Agent in writing of its legal inability to do so.








 


(f)    
      Treatment of Certain Refunds. Unless required by applicable Laws, at no time shall the Agent have
any obligation to file for or otherwise pursue on behalf of a Lender, or have any obligation to pay to any Lender, any refund
of Taxes withheld or deducted from funds paid for the account of such Lender. If any Recipient determines, in its sole
discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified by any
Loan Party or with respect to which any Loan Party has paid additional amounts pursuant to this Section 3.01, it shall
pay to the Loan Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional
amounts paid, by a Loan Party under this Section 3.01 with respect to the Taxes giving rise to such refund), net of
all out-of-pocket expenses (including Taxes) incurred by such Recipient, and without interest (other than any interest paid
by the relevant Governmental Authority with respect to such refund), provided that the Loan Party, upon the request of the
Recipient, agrees to repay the amount paid over to the Loan Party (plus any penalties, interest or other charges imposed by
the relevant Governmental Authority) to the Recipient in the event the Recipient is required to repay such refund to such
Governmental Authority. Notwithstanding anything to the contrary in this subsection, in no event will the applicable
Recipient be required to pay any amount to the Loan Party pursuant to this subsection the payment of which would place the
Recipient in a less favorable net after-Tax position than such Recipient would have been in if the Tax subject to
indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification
payments or additional amounts with respect to such Tax had never been paid. This subsection shall not be construed to
require any Recipient to make available its tax returns (or any other information relating to its taxes that it deems
confidential) to any Loan Party or any other Person.


 


(g)          Survival.
Each party’s obligations under this Section 3.01 shall survive the resignation or replacement of the Agent or any
assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or
discharge of all other Obligations.


 






     -65-


     


    

 


3.02.  
     Illegality. If any Lender determines that any Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or
fund LIBOR Rate Loans, or to determine or charge interest rates based upon the LIBOR Rate, or any Governmental Authority has
imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the
London interbank market, then, on notice thereof by such Lender to the Lead Borrower through the Agent, (i) any obligation of
such Lender to make LIBOR Rate Loans shall be suspended, and (ii) if such notice asserts the illegality of such Lender making
or maintaining Base Rate Loans, the interest rate on which is determined by reference to the LIBOR Rate component of the Base
Rate, the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined
by the Agent without reference to the LIBOR Rate component of the Base Rate, in each case, until such Lender notifies the
Agent and the Lead Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such
notice, (x) the Borrowers shall, upon demand from such Lender (with a copy to the Agent), prepay or, if applicable,
immediately Convert all LIBOR Rate Loans of such Lender to Base Rate Loans (the interest rate on which Base Rate Loans of
such Lender shall, if necessary to avoid such illegality, be determined by the Agent without reference to the LIBOR Rate
component of the Base Rate), if such Lender may not lawfully continue to maintain such LIBOR Rate Loans and (y) if such
notice asserts the illegality of such Lender determining or charging interest rates based upon the LIBOR Rate, the
Agent shall during the period of such suspension compute the Base Rate applicable to such Lender without reference to the
LIBOR Rate component thereof until the Agent is advised in writing by such Lender that it is no longer illegal for such
Lender to determine or charge interest rates based upon the LIBOR Rate. Upon any such prepayment or Conversion, the Borrowers
shall also pay accrued interest on the amount so prepaid or Converted.


 


3.03.   
    Inability to Determine Rates. If the Required Lenders determine that for any reason in
connection with any request for a LIBOR Rate Loan or a Conversion thereto that (a) Dollar deposits are not being offered
to banks in the London interbank market for the applicable amount of such LIBOR Rate Loan, (b) adequate and reasonable
means do not exist for determining the LIBOR Rate with respect to a proposed LIBOR Rate Loan , or (c) the LIBOR Rate
with respect to a proposed LIBOR Rate Loan does not adequately and fairly reflect the cost to such Lenders of funding such
Loan, the Agent will promptly so notify the Lead Borrower and each Lender. Thereafter, (x) the obligation of the Lenders to
make or maintain LIBOR Rate Loans shall be suspended, and (y) in the event of a determination described in the preceding
sentence with respect to the LIBOR Rate component of the Base Rate, the utilization of the LIBOR Rate component in
determining the Base Rate shall be suspended, in each case until the until the Agent (upon the instruction of the Required
Lenders) revokes such notice. Upon receipt of such notice, the Lead Borrower may revoke any pending request for a Borrowing
of LIBOR Rate Loans or, failing that, will be deemed to have Converted such request into a request for a Borrowing of Base
Rate Loans in the amount specified therein.


 


3.04.   
    Increased Costs; Reserves on LIBOR Rate Loans.


 


(a)     
     Increased Costs Generally. If any Change in Law shall:


 


(i)  
    impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance
charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in
by, any Lender (except any reserve requirement reflected in the LIBOR Rate);


 






     -66-


     


    

 


(ii)       subject
any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition
of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations,
or its deposits, reserves, other liabilities or capital attributable thereto; or


 


(iii)      impose
on any Lender or the London interbank market any other condition, cost or expense affecting this Agreement or LIBOR Rate Loans
made by such Lender;


 


and the result of any of the foregoing
shall be to increase the cost to such Lender of making, converting to, or maintaining any LIBOR Rate Loan (or of maintaining its
obligation to make any such Loan), or to reduce the amount of any sum received or receivable by such Lender hereunder (whether
of principal, interest or any other amount) then, upon request of such Lender, the Loan Parties will pay to such Lender such additional
amount or amounts as will compensate such Lender for such additional costs incurred or reduction suffered.


 


(b)          Capital
Requirements. If any Lender determines that any Change in Law affecting such Lender or any Lending Office of such Lender or
such Lender’s holding company, if any, regarding capital requirements has or would have the effect of reducing the rate of
return on such Lender’s capital or on the capital or liquidity of such Lender’s holding company, if any, as a consequence
of this Agreement, the Commitments of such Lender or the Loans made by, or participations in Swing Line Loans held by, such Lender,
to a level below that which such Lender or such Lender’s holding company could have achieved but for such Change in Law (taking
into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital
adequacy), then from time to time the Loan Parties will pay to such Lender such additional amount or amounts as will compensate
such Lender or such Lender’s holding company for any such reduction suffered.


 


(c)          Certificates
for Reimbursement. A certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender or its
holding company, as the case may be, as specified in subsection (a) or (b) of this Section and delivered to the Lead Borrower shall
be conclusive absent manifest error. The Loan Parties shall pay such Lender the amount shown as due on any such certificate within
10 days after receipt thereof.


 


(d)          Delay
in Requests. Failure or delay on the part of any Lender to demand compensation pursuant to the foregoing provisions of this
Section shall not constitute a waiver of such Lender’s right to demand such compensation, provided that the Loan Parties
shall not be required to compensate a Lender pursuant to the foregoing provisions of this Section for any increased costs incurred
or reductions suffered more than nine months prior to the date that such Lender notifies the Lead Borrower of the Change in Law
giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor (except that,
if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month period referred to above
shall be extended to include the period of retroactive effect thereof).


 






     -67-


     


    

 


(e)          Reserves
on LIBOR Rate Loans. The Borrowers shall pay to each Lender, as long as such Lender shall be required to maintain reserves
with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as “Eurocurrency
liabilities”), additional interest on the unpaid principal amount of each LIBOR Rate Loan equal to the actual costs of such
reserves allocated to such Loan by such Lender (as determined by such Lender in good faith, which determination shall be conclusive),
which shall be due and payable on each date on which interest is payable on such Loan, provided the Lead Borrower shall
have received at least 10 days’ prior notice (with a copy to the Agent) of such additional interest from such Lender. If
a Lender fails to give notice 10 days prior to the relevant Interest Payment Date, such additional interest shall be due and payable
10 days from receipt of such notice.


 


3.05.        Compensation
for Losses. Upon demand of any Lender (with a copy to the Agent) from time to time, the Borrowers shall promptly compensate
such Lender for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of any failure by the
Borrowers (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, or Convert any Loan on the date
or in the amount notified by the Lead Borrower, including any loss of anticipated profits and any loss or expense arising from
the liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the deposits from
which such funds were obtained. The Borrowers shall also pay any customary administrative fees charged by such Lender in connection
with the foregoing.


 


3.06.        Mitigation
Obligations; Replacement of Lenders.


 


(a)          Designation
of a Different Lending Office. If any Lender requests compensation under Section 3.04, or the Borrowers are required
to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01,
or if any Lender gives a notice pursuant to Section 3.02, then such Lender shall use reasonable efforts to designate a different
Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices,
branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts
payable pursuant to Section 3.01 or 3.04, as the case may be, in the future, or eliminate the need for the notice
pursuant to Section 3.02, as applicable, and (ii) in each case, would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrowers hereby agree to pay all reasonable costs and expenses
incurred by any Lender in connection with any such designation or assignment.


 


(b)          Replacement
of Lenders. If any Lender requests compensation under Section 3.04, or if the Borrowers are required to pay any additional
amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01 and, in each case,
such Lender has declined or is unable to designate a different Lending Office in accordance with Section 3.06(a), the Borrowers
may replace such Lender in accordance with Section 10.13.


 


3.07.        Survival.
All of the Borrowers’ obligations under this Article III shall survive termination of the Aggregate Commitments,
repayment of all other Obligations hereunder, and resignation of the Agent.


 






     -68-


     


    

 


3.08.        Designation
of Lead Borrower as Borrowers’ Agent.


 


(a)          Each
Borrower hereby irrevocably designates and appoints the Lead Borrower as such Borrower’s agent to obtain Credit Extensions,
the proceeds of which shall be available to each Borrower for such uses as are permitted under this Agreement. As the disclosed
principal for its agent, each Borrower shall be obligated to each Credit Party on account of Credit Extensions so made as if made
directly by the applicable Credit Party to such Borrower, notwithstanding the manner by which such Credit Extensions are recorded
on the books and records of the Lead Borrower and of any other Borrower. In addition, each Loan Party other than the Borrowers
hereby irrevocably designates and appoints the Lead Borrower as such Loan Party’s agent to represent such Loan Party in all
respects under this Agreement and the other Loan Documents.


 


(b)          Each
Borrower recognizes that credit available to it hereunder is in excess of and on better terms than it otherwise could obtain on
and for its own account and that one of the reasons therefor is its joining in the credit facility contemplated herein with all
other Borrowers. Consequently, each Borrower hereby assumes and agrees to discharge all Obligations of each of the other Borrowers.


 


(c)          The
Lead Borrower shall act as a conduit for each Borrower (including itself, as a “Borrower”) on whose behalf the Lead
Borrower has requested a Credit Extension. Neither the Agent nor any other Credit Party shall have any obligation to see to the
application of such proceeds therefrom.


 


ARTICLE
IV

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS


 


4.01.        Conditions
of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension hereunder is subject to satisfaction
of the following conditions precedent:


 


(a)           The
Agent’s receipt of the following, each of which shall be originals or electronic image scan transmission (e.g., “pdf”
or “tif “ via e-mail) (followed promptly by originals) unless otherwise specified, each dated the Closing Date (or,
in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory
to the Agent:


 


(i)        counterparts
of this Agreement each properly executed by a Responsible Officer of the signing Loan Party and the Lenders sufficient in number
for distribution to the Agent, each Lender and the Lead Borrower;


 


(ii)       a
promissory note executed by the Borrowers in favor of each Lender requesting a promissory note;


 


(iii)      such
certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each
Loan Party as the Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other
Loan Documents to which such Loan Party is a party or is to become a party and (B) the identity, authority and capacity of each
Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents
to which such Loan Party is a party or is to become a party;


 






     -69-


     


    

 


(iv)     copies
of each Loan Party’s Organization Documents certified by the Secretary of State of the state of organization of such Loan
Party and such other documents and certifications as the Agent may reasonably require to evidence that each Loan Party is duly
organized or formed, and that each Loan Party is validly existing, in good standing, and qualified to engage in business in each
jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification,
except to the extent that failure to so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse
Effect;


 


(v)      a
favorable opinion of (a) Reinhart Boerner Van Deuren s.c., counsel to the Loan Parties and (b) local counsel in each jurisdiction
in which a Loan Party is organized, to the extent such Loan Party is not covered by the opinion referenced in the foregoing clause
(a), as may be required by the Agent, in each case addressed to the Agent and each Lender, as to such matters concerning the Loan
Parties and the Loan Documents as the Agent may reasonably request;


 


(vi)     a
certificate of a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in Sections 4.01
and 4.02 have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements
that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) to
the Solvency of the Loan Parties as of the Closing Date after giving effect to the transactions contemplated hereby, and (D) either
that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by such Loan
Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses
and approvals have been obtained and are in full force and effect;


 


(vii)    a
duly completed Compliance Certificate as of the last day of the Fiscal Quarter of the Parent and its Subsidiaries most recently
ended prior to the Closing Date, signed by a Responsible Officer of the Lead Borrower;


 


(viii)   evidence
that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Agent required
under the Loan Documents have been obtained and are in effect;


 


(ix)      the
Security Documents and certificates evidencing any stock being pledged thereunder, together with undated stock powers executed
in blank, each duly executed by the applicable Loan Parties, along with evidence that each Loan Party shall have taken or caused
to be taken any other action, executed and delivered or caused to be executed and delivered any other agreement, document and instrument
(including any amendments to the articles of incorporation or other constitutional documents of agreements of such Loan Party pursuant
to which any restrictions or inhibitions relating to the enforcement of any Lien created by the Security Documents are removed)
and authorized, made or caused to be made any other filing and recording required under the Security Documents, and each UCC financing
statement shall have been filed, registered or recorded or shall have been delivered to the Agent and shall be in proper form for
filing, registration or recordation;


 






     -70-


     


    

 


(x)       all
other Loan Documents, each duly executed by the applicable Loan Parties;


 


(xi)      (A)       appraisals
(based on the net orderly liquidation value of Inventory) by a third party appraiser acceptable to the Agent (it being acknowledged
that Gordon Brothers is an acceptable appraiser) of all Inventory of the Borrowers, the results of which are satisfactory to the
Agent, and (B) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be satisfactory
to the Agent;


 


(xii)     results
of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to
the Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which
termination statements satisfactory to the Agent are being tendered concurrently with such extension of credit or other arrangements
satisfactory to the Agent for the delivery of termination statements have been made;


 


(xiii)    (A)      all
documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the
Agent to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents
and all such documents and instruments shall have been so filed, registered or recorded to the satisfaction of the Agent, (B) Account
Control Agreements required pursuant to Section 6.12 hereof shall have been obtained, and (C) control agreements with respect
to the Loan Parties’ securities and investment accounts have been obtained;


 


(xiv)    a
Perfection Certificate, true and correct in all material respects as of the Closing Date; and


 


(xv)     such
other assurances, certificates, documents, consents or opinions as the Agent reasonably may require.


 


(b)          After
giving effect to (i) the first funding under the Loans and (ii) any charges to the Loan Account made in connection with the establishment
of the credit facility contemplated hereby, Availability shall be not less than $5,000,000, accounting on a basis satisfactory
to Agent for accounts payable of Loan Parties more than 60 days past due.


 


(c)          The
Agent shall have received a funds flow memorandum and duly executed letter of direction from the Lead Borrower addressed to the
Agent, on behalf of itself and Lenders, directing the disbursement on the Closing Date of the proceeds of the Loans made on such
date.


 


(d)          Concurrently
herewith proceeds of the initial Loans hereunder shall have been applied to the outstanding obligations under the Existing Credit
Agreements, and Agent shall have received (i) evidence satisfactory to the Agent that all Indebtedness under the Existing Credit
Agreements shall be simultaneously repaid in full and (ii) evidence that arrangements satisfactory to the Agent shall have
been made for the termination and release of guarantees, Liens and security interests granted in connection therewith in a form
reasonably satisfactory to the Agent.


 






     -71-


     


    

 


(e)          The
Agent shall have received a Borrowing Base Certificate prepared as of the day prior to the Closing Date and executed by a Responsible
Officer.


 


(f)  
        The Agent shall be reasonably satisfied that any financial statements delivered to it and the
Lenders fairly present the business and financial condition of the Loan Parties and that there has been no Material Adverse
Effect since December 31, 2015.


 


(g)          The
Agent and the Lenders shall have received and be satisfied with (i) (x) a detailed forecast for the period commencing on the Closing
Date and ending with the end of the then next Fiscal Year, which shall include an Availability model, Consolidated income statement,
balance sheet, and statement of cash flow, by month, and (y) a detailed forecast for each Fiscal Year thereafter through the Maturity
Date, which shall include an Availability model, Consolidated income statement, balance sheet, and statement of cash flow, in each
case prepared in conformity with GAAP and consistent with the Loan Parties’ then current practices and (ii) such other
information (financial or otherwise) reasonably requested by the Agent.


 


(h)          There
shall not be pending any material litigation or other proceeding with respect to this Agreement or the transactions contemplated
hereby.


 


(i)    
      There shall not have occurred any default of any Material Contract of any Loan Party.


 


(j)    
      The consummation of the transactions contemplated hereby shall not violate any Law or any Organization
Document.


 


(k)          All
fees, taxes, costs or other expenses required to be paid or reimbursed to the Agent on or before the Closing Date shall have been
paid in full, and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid in full.


 


(l)     
     The Borrowers shall have paid all fees, charges and disbursements of counsel to the Agent to the extent invoiced
prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its
reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the Closing Date
(provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the
Agent).


 


(m)         The
Agent and the Lenders shall have received all documentation and other information required by regulatory authorities under applicable
“know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT
Act.


 


(n)          No
material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior
to the Closing Date.


 






     -72-


     


    

 


(o)          There
shall not have occurred any disruption or material adverse change in the United States financial or capital markets in general
that has had, in the reasonable opinion of the Agent, a material adverse effect on the market for loan syndications or adversely
affecting the syndication of the Loans.


 


(p)          The
Agent shall have received, with a copy for each Lender, a written environmental assessment regarding
the properties and operations of the Loan Parties prepared by an environmental consultant acceptable to the Agent, together with
a letter from the environmental consultant permitting the Agents and the Lenders to rely on the environmental assessment as if
addressed to and prepared for each of them, both in form, scope, and substance satisfactory to the Agent.


 


(q)          A
Mortgage with respect to each Closing Date Mortgaged Property, executed and delivered by a duly authorized officer of each party
thereto, and notarized as required by applicable law.


 


(r)    
      In the case of each Leased Property that is a Closing Date Mortgaged
Property, (A) a Collateral Access Agreement and (B) evidence that the Lease or a memorandum thereof for such Leased
Property has been recorded or will be recorded concurrently with the Mortgage related thereto. 


 


(s)          The
Agent shall have received from each applicable Loan Party: (A) a fully paid ALTA mortgagee extended coverage title insurance
policy or unconditional commitment therefor issued by one or more title companies (the “Title Company”) reasonably
satisfactory to the Agent with respect to each Closing Date Mortgaged Property (each, a “Title Policy”), in
amounts not less than 125% of the fair market value of each Closing Date Mortgaged Property insuring the Agent that the relevant
Mortgage creates a valid and enforceable first-priority lien on the Closing Date Mortgaged Property encumbered thereby, which (1) shall
include all endorsements reasonably requested by the Agent that are available in the applicable jurisdiction and (2) shall
provide for affirmative insurance and such reinsurance as the Agent may reasonably request, all of the foregoing in form and substance
reasonably satisfactory to the Agent; (B) evidence satisfactory to the Agent that the applicable Loan Party has (1) delivered
to the Title Company all certificates and affidavits required by the Title Company in connection with the issuance of the applicable
Title Policy and (2) paid to the Title Company or to the appropriate Governmental Authorities all expenses and premiums of
the Title Company and all other sums required in connection with the issuance of the Title Policies and all recording and stamp
taxes (including mortgage recording and intangible taxes) payable in connection with recording the Mortgages in the applicable
real property records; and (C) a title report issued by a title company with respect thereto, and copies of all recorded documents
listed as exceptions to title or otherwise referred to therein, each in form and substance reasonably satisfactory to the Agent
and (D) a local counsel opinion in respect of each Mortgage and a local counsel opinion with
respect to the corporate authority of the applicable Loan Party thereto.


 






     -73-


     


    

 


(t)   
       The Agent shall have received: (A) a completed Flood Certificate with respect to each Closing
Date Mortgaged Property, which Flood Certificate shall (1) be addressed to the Agent, (2) be completed by a company
which has guaranteed the accuracy of the information contained therein, and (3) otherwise comply with the Flood Program;
(B) evidence describing whether the community in which each Closing Date Mortgaged Property is located participates in
the Flood Program; (C) if any Flood Certificate states that a Closing Date Mortgaged Property is located in a Flood
Zone, the written acknowledgement by the applicable Loan Party that is the owner or tenant thereof of receipt of written
notification from the Agent (1) as to the existence of each such Closing Date Mortgaged Property, and (2) as to
whether the community in which each such Closing Date Mortgaged Property is located is participating in the Flood Program;
and (D) if any Closing Date Mortgaged Property is located in a Flood Zone and is located in a community that
participates in the Flood Program, evidence that the applicable Loan Party has obtained a policy of flood insurance that is
in compliance with all applicable regulations of the Board of Governors.


 


(u)        
Each of the Agent and the Title Company shall have received, with respect to each Closing Date
Mortgaged Property, (i) ALTA surveys in form and substance reasonably satisfactory to the Agent or (ii) copies of an
existing ALTA survey, together with an affidavit of “no-change” with respect to each such survey, such surveys and
affidavits to be sufficient to issue Title Policies to the Agent providing all reasonably required survey coverage and survey endorsements.



 


(v)          If
the Agent or the Required Lenders reasonably determine that they are required by any Requirement of
Law to have appraisals prepared in respect of the Real Property of any Loan Party constituting Collateral, the Borrower shall provide
to the Administrative Agent appraisals that satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments
of FIRREA.


 


(w)          The
Agent shall have received evidence reasonably satisfactory to it that (i) each of the conditions precedent (other than the
effectiveness of this Agreement) to the effectiveness of the Term Loan Agreement has been, or contemporaneously will be, satisfied
and (ii) the Term Loan Lenders have committed to provide the borrowers thereunder the Term Loan in an aggregate gross principal
amount equal to a maximum of $20,000,000 pursuant to the Term Loan Agreement. Each of the Term Loan Documents shall be in form
and substance reasonably satisfactory to the Agent.


 


(x)     
     The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories
thereto.


 


Without limiting the generality of the
provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01,
each Lender that has signed this Agreement shall be deemed to have Consented to, approved or accepted or to be satisfied with,
each document or other matter required thereunder to be Consented to or approved by or acceptable or satisfactory to a Lender unless
the Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.


 









     -74-


     


    

 


4.02.        Conditions
to Certain Credit Extensions. The obligation of each Lender to honor any Request for Credit Extension is subject to the following
conditions precedent:


 


(a)          The
representations and warranties of each Loan Party contained in Article V or in any other Loan Document, or which are
contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all
material respects on and as of the date of such Credit Extension, except (i) to the extent that such representations and warranties
specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, (ii) in the case of
any representation and warranty qualified by materiality, they shall be true and correct in all respects and (iii) for purposes
of this Section 4.02, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall
be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.


 


(b)          No
Default or Event of Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds
thereof.


 


(c)          The
Agent and, if applicable, the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements
hereof.


 


(d)          No
event or circumstance which could reasonably be expected to result in a Material Adverse Effect shall have occurred.


 


(e)          After
giving effect to the Credit Extension requested to be made on any such date and the use of proceeds thereof, Availability shall
be greater than zero.


 


(f)     
     The Agent shall have received Notice of Borrowing from the Lead
Borrower addressed to the Agent, on behalf of itself and Lenders.


 


Each Request for Credit Extension submitted
by the Lead Borrower shall be deemed to be a representation and warranty by the Borrowers that the conditions specified in Sections
4.02(a), (b) and (d) have been satisfied on and as of the date of the applicable Credit Extension. The conditions
set forth in this Section 4.02 are for the sole benefit of the Credit Parties but until the Required Lenders otherwise direct
the Agent to cease making Loans, the Lenders will fund their Applicable Percentage of all Loans and participate in all Swing Line
Loans whenever made, which are requested by the Lead Borrower and which, notwithstanding the failure of the Loan Parties to comply
with the provisions of this Article IV, agreed to by the Agent; provided, however, the making of any such
Loans shall not be deemed a modification or waiver by any Credit Party of the provisions of this Article IV on any future
occasion or a waiver of any rights or the Credit Parties as a result of any such failure to comply.


 


ARTICLE
V

REPRESENTATIONS AND WARRANTIES


 


To induce the Credit Parties to enter into
this Agreement and to make Loans hereunder, each Loan Party represents and warrants to the Agent and the other Credit Parties that:


 


5.01.        Existence,
Qualification and Power. Each Loan Party (a) is a corporation, limited liability company, partnership or limited partnership,
duly incorporated, organized or formed, validly existing and, where applicable, in good standing under the Laws of the jurisdiction
of its incorporation, organization or formation, (b) has all requisite power and authority and all requisite governmental licenses,
permits, authorizations, consents and approvals to (i) own or lease its assets and carry on its business and (ii) execute, deliver
and perform its obligations under the Loan Documents to which it is a party, and (c) is duly qualified and is licensed and, where
applicable, in good standing under the Laws of each jurisdiction where its ownership, lease or operation of properties or the
conduct of its business requires such qualification or license; except in each case referred to in clause (c), to the extent that
failure to do so could not reasonably be expected to have a Material Adverse Effect. Schedule 5.01 annexed hereto sets
forth, as of the Closing Date, each Loan Party’s name as it appears in official filings in its state of incorporation or
organization, its state of incorporation or organization, organization type, organization number, if any, issued by its state
of incorporation or organization, and its federal employer identification number.


 






     -75-


     


    

 


5.02.        Authorization;
No Contravention. The execution, delivery and performance by each Loan Party of each Loan Document to which such Person is
or is to be a party, has been duly authorized by all necessary corporate or other organizational action, and does not and will
not (a) contravene the terms of any of such Person’s Organization Documents; (b) conflict with or result in any breach, termination,
or contravention of, or constitute a default under, or require any payment to be made under (i) any Material Contract or any Material
Indebtedness to which such Person is a party or affecting such Person or the properties of such Person or any of its Subsidiaries
or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its
property is subject; (c) result in or require the creation of any Lien upon any asset of any Loan Party (other than Liens in favor
of the Agent under the Security Documents); or (d) violate any Law.


 


5.03.        Governmental
Authorization; Other Consents. No approval, consent, exemption, authorization, or other action by, or notice to, or filing
with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance
by, or enforcement against, any Loan Party of this Agreement or any other Loan Document, except for (a) the perfection or maintenance
of the Liens created under the Security Documents (including the first priority nature thereof) or (b) such as have been obtained
or made and are in full force and effect.


 


5.04.        Binding
Effect. This Agreement has been, and each other Loan Document, when delivered, will have been, duly executed and delivered
by each Loan Party that is party thereto. This Agreement constitutes, and each other Loan Document when so delivered will constitute,
a legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is party thereto in accordance
with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’
rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at
law.


 


5.05.        Financial
Statements; No Material Adverse Effect.


 


(a)          The
Audited Financial Statements (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby,
except as otherwise expressly noted therein; (ii) fairly present the financial condition of the Parent and its Subsidiaries as
of the date thereof and their results of operations for the period covered thereby in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise expressly noted therein; and (iii) show all Material Indebtedness and
other liabilities, direct or contingent, of the Parent and its Subsidiaries as of the date thereof, including liabilities for taxes,
material commitments and Indebtedness.


 






     -76-


     


    

 


(b)          Since
December 31, 2015, there has been no event or circumstance, either individually or in the aggregate, that has had or could reasonably
be expected to have a Material Adverse Effect.


 


(c)          To
the best knowledge of the Lead Borrower, no Internal Control Event exists or has occurred since the date of the Audited Financial
Statements that has resulted in or could reasonably be expected to result in a misstatement in any material respect, (i) in any
financial information delivered or to be delivered to the Agent or the Lenders, (ii) of the Borrowing Base, (iii) of covenant compliance
calculations provided hereunder or (iv) of the assets, liabilities, financial condition or results of operations of the Parent
and its Subsidiaries on a Consolidated basis.


 


(d)          The
Consolidated balance sheet of the Parent and its Subsidiaries as at November 30, 2016, and the related Consolidated statements
of income and cash flows of the Parent and its Subsidiaries for the eleven months then ended, certified by the chief financial
officer of the Lead Borrower, fairly present the Consolidated financial condition of the Parent and its Subsidiaries as at such
date and the Consolidated results of operations of the Parent and its Subsidiaries for the period ended on such date, all in accordance
with GAAP.


 


(e)          The
Consolidated and consolidating forecasted balance sheet and statements of income and cash flows of the Parent and its Subsidiaries
delivered pursuant to Section 4.01 or Section 6.01(d), as applicable, were prepared in good faith on the basis of
the assumptions stated therein, which assumptions were fair in light of the conditions existing at the time of delivery of such
forecasts, and represented, at the time of delivery, the Loan Parties’ best estimate of its future financial performance.


 


5.06.        Litigation.
There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of the Loan Parties after due and diligent
investigation, threatened or contemplated, at law, in equity, in arbitration or before any Governmental Authority, by or against
any Loan Party or any of its Subsidiaries or against any of its properties or revenues that (a) purport to affect or pertain to
this Agreement or any other Loan Document, or any of the transactions contemplated hereby, or (b) either individually or in the
aggregate, if determined adversely, could reasonably be expected to have a Material Adverse Effect, and since the Closing Date,
there has been no adverse change in the status, or financial effect on any Loan Party or any Subsidiary thereof, of the matters
described on Schedule 5.06.


 


5.07.        No
Default. No Loan Party or any Subsidiary is in default under or with respect to, or party to, any Material Contract or any
Material Indebtedness. No Default or Event of Default has occurred and is continuing or would result from the consummation of
the transactions contemplated by this Agreement or any other Loan Document.


 


5.08.        Ownership
of Property; Liens.


 


(a)          Each
of the Loan Parties has good and marketable title to, good and valid leasehold interests in, or valid licenses to use all personal
property and assets material to the ordinary conduct of its business. The property of the Loan Parties is subject to no Liens,
other than Liens permitted by Section 7.01.


 






     -77-


     


    

 


(b)          Schedule
5.08(b)(1) sets forth the address (including street address, county and state) of all Real Estate (excluding Leased Real Property)
that is owned by the Loan Parties and each of their Subsidiaries, together with a list of the holders of any mortgage or other
Lien thereon as of the Closing Date. Each Loan Party has good, record, marketable and insurable fee simple title to the Real Estate
owned by such Loan Party or such Subsidiary, free and clear of all Liens, other than Permitted Encumbrances. Schedule 5.08(b)(2)
sets forth the address (including street address, county and state) of all Leases of the Loan Parties, together with the name of
each lessor and its contact information with respect to each such Lease as of the Closing Date. Each of such Leases is in full
force and effect and the Loan Parties are not in default of the terms thereof, nor does there exist any event that with the provision
of notice, the passage of time, or both would constitute a default thereunder. Each Loan Party has good and valid title to the
Leased Real Property, free and clear of all Liens, other than Permitted Encumbrances.


 


5.09.        Environmental
Compliance.


 


(a)          No
Loan Party or any Subsidiary thereof (i) has failed to comply with any Environmental Law or to obtain, maintain or comply with
any permit, license or other approval required under any Environmental Law, (ii) has become subject to any Environmental Liability,
(iii) has received notice of any claim with respect to any Environmental Liability or (iv) knows of any basis for any Environmental
Liability, except, in each case, as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect.


 


(b)          Except
as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, none of the properties
currently or, to the best knowledge of Lead Borrower, formerly owned or operated by any Loan Party or any Subsidiary thereof is
listed or proposed for listing on the NPL or on the CERCLIS or any analogous foreign, state or local list or is adjacent to any
such property; there are no and never have been any underground or above-ground storage tanks or any surface impoundments, septic
tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on any property currently
owned or operated by any Loan Party or any Subsidiary thereof or, to the best of the knowledge of the Loan Parties, on any property
formerly owned or operated by any Loan Party or Subsidiary thereof, except in compliance with Environmental Law; there is no asbestos
or asbestos-containing material requiring abatement or removal by any Loan Party on any property currently owned or operated by
any Loan Party or Subsidiary thereof; and Hazardous Materials have not been released, discharged or disposed of in violation of
Environmental Law on any property currently or formerly owned or operated by any Loan Party or any Subsidiary thereof.


 


(c)          Except
as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, No Loan Party or any
Subsidiary thereof is undertaking, and no Loan Party or any Subsidiary thereof has completed, either individually or together with
other potentially responsible parties, any investigation or assessment or remedial or response action relating to any actual or
threatened release, discharge or disposal of Hazardous Materials at any site, location or operation, either voluntarily or pursuant
to the order of any Governmental Authority or the requirements of any Environmental Law; and all Hazardous Materials generated,
used, treated, handled or stored at, or transported to or from, any property currently or formerly owned or operated by any Loan
Party or any Subsidiary thereof have been disposed of in a manner not reasonably expected to result in material liability to any
Loan Party or any Subsidiary thereof.


 






     -78-


     


    

 


5.10.        Insurance.
The properties of the Loan Parties are insured with financially sound and reputable insurance companies which are not Affiliates
of the Loan Parties, in such amounts, with such deductibles and covering such risks (including, without limitation, workmen’s
compensation, public liability, business interruption, property damage and directors and officers liability insurance) as are
customarily carried by companies engaged in similar businesses and owning similar properties in localities where the Loan Parties
operate. Schedule 5.10 sets forth a description of all insurance maintained by or on behalf of the Loan Parties as of the
Closing Date. As of the Closing Date, each insurance policy listed on Schedule 5.10 is in full force and effect and all
premiums in respect thereof that are due and payable have been paid.


 


5.11.        Taxes.
The Loan Parties have filed all Federal, state and other tax returns and reports required to be filed, and have paid all Federal,
state and other taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income
or assets otherwise due and payable, except those which are being contested in good faith by appropriate proceedings being diligently
conducted, for which adequate reserves have been provided in accordance with GAAP and which contest effectively suspends the collection
of the contested obligation and the enforcement of any Lien securing such obligation. There is no proposed tax assessment against
any Loan Party that would, if made, have a Material Adverse Effect. No Loan Party or any Subsidiary thereof is a party to any
tax sharing agreement.


 


5.12.        ERISA
Compliance.


 


(a)          each
Plan is in compliance in all material respects with the applicable provisions of ERISA, the Code and the regulations and published
interpretations thereunder, except for any required amendments for which the remedial amendment period as defined in Section 401(b)
of the Code has not yet expired;


 


(b)          each
Pension Plan that is intended to be a qualified plan under Section 401(a) of the Code has received a favorable determination letter
from the Internal Revenue Service, and the trust related thereto has been determined by the Internal Revenue Service to be exempt
from federal income tax under Section 501(a) of the Code, or an application for such a letter has been filed with the Internal
Revenue Service, and to the knowledge of the Lead Borrower, no facts or circumstances have occurred subsequent to the issuance
of any such determination letter that would cause the loss of such tax-qualified status with respect to such Pension Plan;


 


(c)          there
are no pending or, to the knowledge of the Lead Borrower, threatened claims, actions or lawsuits, or action by any Governmental
Authority, with respect to any Plan that would reasonably be expected to result in a Material Adverse Effect; there has been no
prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan that has resulted or would reasonably
be expected to result in a Material Adverse Effect;


 






     -79-


     


    

 


(d)          (i)
no ERISA Event has occurred, and neither the Lead Borrower nor any ERISA Affiliate is aware of any fact, event or circumstance
that would reasonably be expected to constitute or result in an ERISA Event with respect to any Pension Plan; (ii) the Lead Borrower
and each ERISA Affiliate has met all applicable requirements under the Pension Funding Rules in respect of each Pension Plan, and
no waiver of the minimum funding standards under the Pension Funding Rules has been applied for or obtained; (iii) as of the most
recent valuation date for any Pension Plan, the funding target attainment percentage (as defined in Section 430(d)(2) of the Code)
is 60% or higher and to the knowledge of the Lead Borrower, neither the Lead Borrower nor any ERISA Affiliate knows of any facts
or circumstances that could reasonably be expected to cause the funding target attainment percentage for any such plan to drop
below 60% as of the most recent valuation date; (iv) neither the Lead Borrower nor any ERISA Affiliate has incurred any liability
to the PBGC other than for the payment of premiums, and there are no premium payments which have become due that are unpaid; (v)
neither the Lead Borrower nor any ERISA Affiliate has engaged in a transaction that could be subject to Section 4069 or Section
4212(c) of ERISA; and (vi) no Pension Plan has been terminated by the plan administrator thereof nor by the PBGC, and no event
or circumstance has occurred or exists that would reasonably be expected to cause the PBGC to institute proceedings under Title
IV of ERISA to terminate any Pension Plan.


 


5.13.        Subsidiaries;
Equity Interests. As of the Closing Date, the Loan Parties have no Subsidiaries other than those specifically disclosed in
Part (a) of Schedule 5.13, which Schedule sets forth the legal name, jurisdiction of incorporation or formation and authorized
Equity Interests of each such Subsidiary. All of the outstanding Equity Interests in such Subsidiaries have been validly issued,
are fully paid and non-assessable and are owned by a Loan Party (or a Subsidiary of a Loan Party) in the amounts specified on
Part (a) of Schedule 5.13 free and clear of all Liens other than Permitted Encumbrances. Except as set forth in Schedule
5.13, there are no outstanding rights to purchase any Equity Interests in any Subsidiary. As of the Closing Date, the Loan
Parties have no equity investments in any other corporation or entity other than those specifically disclosed in Part (b) of Schedule
5.13. All of the outstanding Equity Interests in the Loan Parties have been validly issued, and are fully paid and non-assessable
and are owned in the amounts specified on Part (c) of Schedule 5.13 free and clear of all Liens except for those created
under the Security Documents. The copies of the Organization Documents of each Loan Party and each amendment thereto provided
pursuant to Section 4.01 are true and correct copies of each such document, each of which is valid and in full force and
effect.


 


5.14.        Margin
Regulations; Investment Company Act.


 


(a)          No
Loan Party is engaged or will be engaged, principally or as one of its important activities, in the business of purchasing or carrying
margin stock (within the meaning of Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying
margin stock. None of the proceeds of the Credit Extensions shall be used directly or indirectly for the purpose of purchasing
or carrying any margin stock, for the purpose of reducing or retiring any Indebtedness that was originally incurred to purchase
or carry any margin stock or for any other purpose that might cause any of the Credit Extensions to be considered a “purpose
credit” within the meaning of Regulations T, U, or X issued by the FRB.


 






     -80-


     


    

 


(b)          None
of the Loan Parties, any Person Controlling any Loan Party, or any Subsidiary is or is required to be registered as an “investment
company” under the Investment Company Act of 1940.


 


5.15.   
    Disclosure. Each Loan Party has disclosed to the Agent and the Lenders all agreements, instruments
and corporate or other restrictions to which it is subject, and all other matters known to it, that, individually or in the aggregate,
could reasonably be expected to result in a Material Adverse Effect. No report, financial statement, certificate or other information
furnished (whether in writing or orally) by or on behalf of any Loan Party to the Agent or any Lender in connection with the transactions
contemplated hereby and the negotiation of this Agreement or delivered hereunder or under any other Loan Document (in each case,
as modified or supplemented by other information so furnished) contains any material misstatement of fact or omits to state any
material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
provided that, with respect to projected financial information, the Loan Parties represent only that such information was
prepared in good faith based upon assumptions believed to be reasonable at the time.


 


5.16.        Compliance
with Laws. Each of the Loan Parties is in compliance in all material respects with the requirements of all Laws and all orders,
writs, injunctions and decrees applicable to it or to its properties, except in such instances in which (a) such requirement of
Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (b)
the failure to comply therewith, either individually or in the aggregate, could not reasonably be expected to have a Material
Adverse Effect.


 


5.17.        Intellectual
Property; Licenses, Etc. The Loan Parties own, or possess the right to use, all of the Intellectual Property, licenses, permits
and other authorizations that are reasonably necessary for the operation of their respective businesses, to the best knowledge
of the Lead Borrower without conflict with the rights of any other Person. To the best knowledge of the Lead Borrower, no slogan
or other advertising device, product, process, method, substance, part or other material now employed, or now contemplated to
be employed, by any Loan Party infringes upon any rights held by any other Person. No claim or litigation regarding any of the
foregoing is pending or, to the best knowledge of the Lead Borrower, threatened, which, either individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect.


 


5.18.        Labor
Matters. There are no strikes, lockouts, slowdowns or other material labor disputes against any Loan Party pending
or, to the knowledge of any Loan Party, threatened. The hours worked by and payments made to employees of the Loan Parties comply
with the Fair Labor Standards Act and any other applicable federal, state, local or foreign Law dealing with such matters. No
Loan Party has incurred any liability or obligation under the Worker Adjustment and Retraining Act or similar state Law. All payments
due from any Loan Party, or for which any claim may be made against any Loan Party on account of wages and employee health and
welfare insurance and other benefits, have been paid or properly accrued in accordance with GAAP as a liability on the books of
such Loan Party. Except as set forth on Schedule 5.18 no Loan Party is a party to or bound by any collective bargaining
agreement, management agreement, employment agreement, bonus, restricted stock, stock option, or stock appreciation plan or agreement
or any similar plan, agreement or arrangement. There are no representation proceedings pending or, to any Loan Party’s knowledge,
threatened to be filed with the National Labor Relations Board, and no labor organization or group of employees of any Loan Party
has made a pending demand for recognition. There are no complaints, unfair labor practice charges, grievances, arbitrations, unfair
employment practices charges or any other claims or complaints against any Loan Party pending or, to the knowledge of any Loan
Party, threatened to be filed with any Governmental Authority or arbitrator based on, arising out of, in connection with, or otherwise
relating to the employment or termination of employment of any employee of any Loan Party. The consummation of the transactions
contemplated by the Loan Documents will not give rise to any right of termination or right of renegotiation on the part of any
union under any collective bargaining agreement to which any Loan Party is bound.


 






     -81-


     


    

 


5.19.        Security
Documents.


 


(a)          The
Security Agreement creates in favor of the Agent, for the benefit of the Secured Parties referred to therein, a legal, valid, continuing
and enforceable security interest in the Collateral (as defined in the Security Agreement), the enforceability of which is subject
to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and
subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law. The financing statements,
releases and other filings are in appropriate form and have been or will be filed in the offices specified in Schedule II of the
Security Agreement. Upon such filings and/or the obtaining of “control” (as defined in the UCC) by either the Agent
or the Term Loan Agent, as applicable, and subject to the Intercreditor Agreement, the Agent will have a perfected Lien on, and
security interest in, to and under all right, title and interest of the grantors thereunder in all Collateral that may be perfected
under the UCC (in effect on the date this representation is made) by filing, recording or registering a financing statement or
analogous document (including without limitation the proceeds of such Collateral subject to the limitations relating to such proceeds
in the UCC) or by obtaining control, in each case prior and superior in right to any other Person (other than (i) Liens granted
under the Term Loan Documents to the extent permitted hereunder and under the Intercreditor Agreement and (ii) Permitted Encumbrances
having priority by operation of law).


 


(b)          Each
of the Mortgages is effective to create in favor of the Agent, for the benefit of the Secured Parties, a legal, valid, binding
and enforceable Lien on the Mortgaged Property described therein and proceeds and products thereof, and when the Mortgages are
filed in the county in which such Mortgaged Property is located, each Mortgage shall constitute a fully perfected Lien on, and
security interest in, all right, title and interest of the Loan Parties in the Mortgaged Property described therein and the proceeds
and products thereof, as security for the Secured Obligations (as defined in the relevant
Mortgage), in each case prior and superior in right to any other Person (other than Persons holding Liens or other encumbrances
or rights permitted hereunder).


 


5.20.        Solvency.
After giving effect to the transactions contemplated by this Agreement, and before and after giving effect to each Credit Extension,
the Loan Parties, on a Consolidated basis, are and will be Solvent. No transfer of property has been or will be made by any Loan
Party and no obligation has been or will be incurred by any Loan Party in connection with the transactions contemplated by this
Agreement or the other Loan Documents with the intent to hinder, delay, or defraud either present or future creditors of any Loan
Party.


 






     -82-


     


    

 


5.21.        Deposit
Accounts; Credit Card Arrangements.


 


(a)          Annexed
hereto as Schedule 5.21(a) is a list of all DDAs maintained by the Loan Parties as of the Closing Date, which Schedule includes,
with respect to each DDA (i) the name and address of the depository; (ii) the account number(s) maintained with such depository;
(iii) a contact person at such depository, and (iv) the identification of each Controlled Account Bank.


 


(b)          Annexed
hereto as Schedule 5.21(b) is a list describing all arrangements as of the Closing Date to which any Loan Party is a party
with respect to the processing and/or payment to such Loan Party of the proceeds of any credit card charges for sales made by such
Loan Party.


 


5.22.        Brokers.
Except as set forth on Schedule 5.22, no broker or finder brought about the obtaining, making or closing of the Loans or
transactions contemplated by the Loan Documents, and no Loan Party or Affiliate thereof has any obligation to any Person in respect
of any finder’s or brokerage fees in connection therewith.


 


5.23.        Customer
and Trade Relations. There exists no actual or, to the knowledge of any Loan Party, threatened, termination or cancellation
of, or any material adverse modification or change in the business relationship of any Loan Party with any supplier material to
its operations.


 


5.24.        Material
Contracts. Schedule 5.24 sets forth all Material Contracts to which any Loan Party is a party or is bound as of the
Closing Date. The Loan Parties have delivered true, correct and complete copies of such Material Contracts to the Agent on or
before the Closing Date. The Loan Parties are not in breach or in default in any material respect of or under any Material Contract
and have not received any notice of default under, or of the intention of any other party thereto to terminate, any Material Contract.


 


5.25.        Casualty.
Neither the businesses nor the properties of any Loan Party or any of its Subsidiaries are affected by any fire, explosion, accident,
strike, lockout or other labor dispute, drought, storm, hail, earthquake, embargo, act of God or of the public enemy or other
casualty (whether or not covered by insurance) that, either individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect.


 


5.26.        Regulation
H. No Mortgage encumbers improved Real Estate which is located in an area that has been identified by the Secretary
of Housing and Urban Development as an area having special flood hazards and in which flood insurance has been made available
under the National Flood Insurance Act of 1968 (except any Real Estate subject to a Mortgage as to which such flood insurance
as required by Regulation H has been obtained and is in full force and effect as required by applicable law and this Agreement).


 






     -83-


     


    

 


ARTICLE
VI

AFFIRMATIVE COVENANTS


 


So long as any Lender shall have any Commitment
hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied (other than contingent indemnification claims
for which a claim has not been asserted), the Loan Parties shall, and shall (except in the case of the covenants set forth in Sections
6.01, 6.02, and 6.03) cause each Subsidiary to:


 


6.01.        Financial
Statements. Deliver to the Agent, in form and detail satisfactory to the Agent:


 


(a)          as
soon as available, but in any event within 90 days after the end of each Fiscal Year of the Parent (commencing with the fiscal
year ending on or about December 31, 2016), a Consolidated and consolidating balance sheet of the Parent and its Subsidiaries as
at the end of such Fiscal Year, and the related consolidated and consolidating statements of income or operations, Shareholders’
Equity and cash flows for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal
Year, all in reasonable detail and prepared in accordance with GAAP, audited and accompanied by a report and unqualified opinion
of a Registered Public Accounting Firm of nationally recognized standing reasonably acceptable to the Agent, which report and opinion
shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern”
or like qualification or exception or any qualification or exception as to the scope of such audit; and such consolidating statements
to be certified by a Responsible Officer of the Lead Borrower to the effect that such statements are fairly stated in all material
respects when considered in relation to the consolidated financial statements of the Parent and its Subsidiaries;


 


(b)          as
soon as available, but in any event within 30 days after the end of each of the Fiscal Months of each fiscal year of the Parent
(commencing with the Fiscal Month ended January 31, 2017), a consolidated and consolidating balance sheet of the Parent and its
Subsidiaries as at the end of such Fiscal Month, and the related consolidated and consolidating statements of income or operations,
Shareholders’ Equity and cash flows for such Fiscal Month, and for the portion of the Parent’s Fiscal Year then ended,
setting forth in each case in comparative form the figures for (A) such period set forth in the projections delivered pursuant
to Section 6.01(d) hereof, (B) the corresponding Fiscal Month of the previous Fiscal Year and (C) the corresponding portion
of the previous fiscal year, all in reasonable detail, certified by a Responsible Officer of the Lead Borrower as fairly presenting
the financial condition, results of operations, Shareholders’ Equity and cash flows of the Parent and its Subsidiaries as
of the end of such Fiscal Month in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes
and be certified by a Responsible Officer of the Lead Borrower to the effect that such statements are fairly stated in all material
respects when considered in relation to the consolidated financial statements of the Parent and its Subsidiaries;


 


(c)          as
soon as available, but in any event at least 15 days before the end of each Fiscal Year of the Parent, forecasts and projections
prepared by management of the Lead Borrower, in form satisfactory to the Agent, of Availability and of the consolidated balance
sheets and statements of income or operations and cash flows of the Parent and its Subsidiaries on a monthly basis (for the Fiscal
Year commencing with January 1, 2017, and thereafter on an annual basis) for the immediately following Fiscal Year (including the
Fiscal Year in which the Maturity Date occurs), and as soon as available, any significant revisions to such forecast with respect
to such Fiscal Year.


 






     -84-


     


    

 


6.02.        Certificates;
Other Information. Deliver to the Agent, in form and detail satisfactory to the Agent:


 


(a)       
  concurrently with the delivery of the financial statements referred to in Section 6.01(a), a
certificate of its Registered Public Accounting Firm certifying such financial statements and stating that in making the
examination necessary for their certification of such financial statements, such Registered Public Accounting Firm has not
obtained any knowledge of the existence of any Default or Event of Default or, if any such Default or Event of Default shall
exist, stating the nature and status of such event;


 


(b)          concurrently
with the delivery of the financial statements referred to in Sections 6.01(a) and (b) (commencing
with the delivery of the financial statements for the Fiscal Quarter ended March 31, 2017), a duly completed Compliance
Certificate signed by a Responsible Officer of the Lead Borrower, and in the event of any change in generally accepted accounting
principles used in the preparation of such financial statements, the Lead Borrower shall also provide a statement of reconciliation
conforming such financial statements to GAAP;


 


(c)          the
third Business Day of each week, and on the last Business Day of each month, a Borrowing Base Certificate showing the Borrowing
Base as of the close of business as of the last day of the immediately preceding week, each Borrowing Base Certificate to be certified
as complete and correct by a Responsible Officer of the Lead Borrower;


 


(d)          promptly
upon receipt, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or
the audit committee of the board of directors) of any Loan Party by its Registered Public Accounting Firm in connection with the
accounts or books of the Loan Parties or any Subsidiary, or any audit of any of them, including, without limitation, specifying
any Internal Control Event;


 


(e)          promptly
after the same are available, copies of each annual report, proxy or financial statement or other report or communication sent
to the stockholders of the Loan Parties, and copies of all annual, regular, periodic and special reports and registration statements
which any Loan Party may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934
or with any national securities exchange;


 


(f)       
   the financial and collateral reports described on Schedule 6.02 hereto, at the times set forth in
such Schedule;


 


(g)          promptly
after the furnishing thereof, copies of any statement or report furnished to any holder of debt securities of any Loan Party or
any Subsidiary thereof pursuant to the terms of any indenture, loan or credit or similar agreement and not otherwise required to
be furnished to the Lenders pursuant to Section 6.01 or any other clause of this Section 6.02;


 


(h)          as
soon as available, but in any event within 30 days after the end of each Fiscal Year of the Loan Parties, a report summarizing
the insurance coverage (specifying type, amount and carrier) in effect for each Loan Party and its Subsidiaries and containing
such additional information as the Agent, or any Lender through the Agent, may reasonably specify;


 






     -85-


     


    

 


(i)     
     promptly after the Agent’s request therefor, copies of all Material Contracts and documents evidencing
Material Indebtedness;


 


(j)        
  promptly, and in any event within five Business Days after receipt thereof by any Loan Party or any Subsidiary
thereof, copies of each notice or other correspondence received from any Governmental Authority concerning any proceeding
with, or investigation or possible investigation or other inquiry by such Governmental Authority regarding financial or other
operational results of any Loan Party or any Subsidiary thereof or any other matter which, if adversely determined, could
reasonably expected to have a Material Adverse Effect;


 


(k)          promptly,
such additional information regarding the business affairs, financial condition or operations of any Loan Party or any Subsidiary,
or compliance with the terms of the Loan Documents, as the Agent or any Lender may from time to time reasonably request.


 


Documents required to be delivered pursuant
to Section 6.01(a), (b), or (c) or Section 6.02(d) (to the extent any such documents are included in materials otherwise filed
with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which
the Lead Borrower posts such documents, or provides a link thereto on the Lead Borrower’s website on the Internet at the
website address listed on Schedule 10.02; or (ii) on which such documents are posted on the Lead Borrower’s behalf on an
Internet or intranet website, if any, to which each Lender and the Agent have access (whether a commercial, third-party website
or whether sponsored by the Agent); provided that: (i) the Lead Borrower shall deliver paper copies of such documents to the Agent
or any Lender that requests the Lead Borrower to deliver such paper copies until a written request to cease delivering paper copies
is given by the Agent or such Lender and (ii) the Lead Borrower shall notify the Agent (by electronic mail) of the posting of any
such documents and provide to the Agent by electronic mail electronic versions (i.e., soft copies) of such documents. For the avoidance
of doubt, the delivery dates indicated for the financial statements required to be delivered under Section 6.01(a) and 6.01(b)
shall be as set forth in such Sections regardless of method of delivery. The Agent shall have no obligation to request the delivery
or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by
the Loan Parties with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it
or maintaining its copies of such documents.


 


The Loan Parties hereby
acknowledge that (a) the Agent will make available to the Lenders materials and/or information provided by or on behalf of the
Loan Parties hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on Debt Domain,
IntraLinks, Syndtrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders
may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with
respect to the Loan Parties or their securities) (each, a “Public Lender”). The Loan Parties hereby agree that
they will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the
Public Lenders and that (w) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at
a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower
Materials “PUBLIC,” the Loan Parties shall be deemed to have authorized the Agent and the Lenders to treat such Borrower
Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to
the Loan Parties or their securities for purposes of United States Federal and state securities laws (provided, however,
that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 10.07);
(y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated
“Public Investor”; and (z) the Agent shall be entitled to treat any Borrower Materials that are not marked “PUBLIC”
as being suitable only for posting on a portion of the Platform not designated “Public Investor.”


 






     -86-


     


    

 


6.03.        Notices.
Promptly notify the Agent:


 


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


 


(b)          of
any matter that has resulted or could reasonably be expected to result in a Material Adverse Effect,


 


(c)          of
any breach or non-performance of, or any default under, a Material Contract or with respect to Material Indebtedness of any Loan
Party or any Subsidiary thereof;


 


(d)          of
any dispute, litigation, investigation, proceeding or suspension between any Loan Party or any Subsidiary thereof and any Governmental
Authority, or the commencement of, or any material development in, any litigation or proceeding affecting any Loan Party or any
Subsidiary thereof, including pursuant to any applicable Environmental Laws;


 


(e)          of
the occurrence of any ERISA Event that, alone or together with any other ERISA Events that have occurred, would reasonably be expected
to result in a Material Adverse Effect;


 


(f)       
   of any material change in accounting policies or financial reporting practices by any Loan Party or any
Subsidiary thereof;


 


(g)          of
any change in any Loan Party’s senior executive officers;


 


(h)          of
the discharge by any Loan Party of its present Registered Public Accounting Firm or any withdrawal or resignation by such Registered
Public Accounting Firm;


 


(i)   
       of any collective bargaining agreement or other labor contract to which a Loan Party becomes a party,
or the application for the certification of a collective bargaining agent;


 


(j)       
   of the filing of any Lien for unpaid Taxes against any Loan Party in excess of $100,000;


 


(k)          of
any casualty or other insured damage to any material portion of the Collateral or the commencement of any action or proceeding
for the taking of any interest in a material portion of the Collateral under power of eminent domain or by condemnation or similar
proceeding or if any material portion of the Collateral is damaged or destroyed; and


 






     -87-


     


    

 


(l)       
   of any failure by any Loan Party to pay rent at (i) any of the Loan Parties’ distribution centers or
warehouses or (ii) any of such Loan Party’s locations if such failure would be reasonably likely to result in a
Material Adverse Effect.


 


Each notice pursuant to this Section shall
be accompanied by a statement of a Responsible Officer of the Lead Borrower setting forth details of the occurrence referred to
therein and stating what action the Lead Borrower has taken and proposes to take with respect thereto.


 


6.04.        Payment
of Obligations. Pay and discharge as the same shall become due and payable, all its obligations and liabilities, including
(a) all tax liabilities, assessments and governmental charges or levies upon it or its properties or assets, (b) all lawful claims
(including, without limitation, claims of landlords, warehousemen, customs brokers, freight forwarders, consolidators, and carriers)
which, if unpaid, would by Law become a Lien upon its property (in the case of clauses (a) and (b) of this Section 6.04, to the
extent that all such amounts exceed $25,000 in the aggregate); and (c) all Material Indebtedness, as and when due and payable,
but subject to any subordination provisions contained in any instrument or agreement evidencing such Indebtedness. Nothing contained
herein shall be deemed to limit the rights of the Agent with respect to determining Reserves pursuant to this Agreement.


 


6.05.        Preservation
of Existence, Etc. (a) Preserve, renew and maintain in full force and effect its legal existence and good standing under the
Laws of the jurisdiction of its organization or formation except in a transaction permitted by Section 7.04 or 7.05;
(b) take all reasonable action to maintain all rights, privileges, permits, licenses and franchises necessary or desirable in
the normal conduct of its business, except to the extent that failure to do so could not reasonably be expected to have a Material
Adverse Effect; and (c) preserve or renew all of its Intellectual Property, except to the extent such Intellectual Property is
no longer used or useful in the conduct of the business of the Loan Parties.


 


6.06.        Maintenance
of Properties. (a) Maintain, preserve and protect all of its material properties and equipment necessary in the operation
of its business in good working order and condition, ordinary wear and tear excepted; and (b) make all necessary repairs thereto
and renewals and replacements thereof except where the failure to do so could not reasonably be expected to have a Material Adverse
Effect.


 


6.07.        Maintenance
of Insurance. Maintain with financially sound and reputable insurance companies reasonably acceptable to the Agent (it being
acknowledged that the carriers proving coverage as of the Closing Date are deemed by Agent to be acceptable), insurance with respect
to its properties and business against loss or damage of the kinds customarily insured against by Persons engaged in the same
or similar business and operating in the same or similar locations or as is required by Law, of such types and in such amounts
as are customarily carried under similar circumstances by such other Persons and as are reasonably acceptable to the Agent.


 


(a)          Maintain
for themselves and their Subsidiaries a Directors and Officers insurance policy with a responsible company in such amounts as are
customarily carried by business entities engaged in similar businesses similarly situated, and will upon request by the Agent furnish
the Agent certificates evidencing renewal of such policy.


 






     -88-


     


    

 


(b)          Cause
all property insurance policies maintained with respect to any Collateral to be endorsed in favor of Agent and to include a lenders’
loss payable clause (regarding personal property), in form and substance satisfactory to the Agent, providing that the insurer
shall pay all proceeds otherwise payable to the Loan Parties under the policies directly to the Agent, and reflecting that none
of the Loan Parties, Credit Parties or any other Person shall be a co-insurer.


 


(c)      
   Cause commercial general liability policies to be endorsed to name the Agent as an additional
insured.


 


(d)          Cause
business interruption policies to name the Agent as a loss payee and to be endorsed or amended to include (i) a provision that,
from and after the Closing Date, the insurer shall pay all proceeds otherwise payable to the Loan Parties under the policies directly
to the Agent, (ii) a provision to the effect that none of the Loan Parties, the Agent, the Agent or any other party shall be a
co-insurer and (iii) such other provisions as the Agent may reasonably require from time to time to protect the interests of the
Credit Parties.


 


(e)          Cause
each such policy referred to in this Section 6.07 to also provide that it shall not be canceled (i) by reason of nonpayment
of premium except upon not less than ten (10) days’ prior written notice thereof by the insurer to the Agent (giving the
Agent the right to cure defaults in the payment of premiums) or (ii) for any other reason except upon not less than thirty (30)
days’ prior written notice thereof by the insurer to the Agent; provided that the Loan Parties shall also promptly deliver
to the Agent any notice of cancellation, modification or non-renewal of any such policy of insurance received by any Loan Party
or any Subsidiary.


 


(f)   
      Deliver to the Agent, prior to the cancellation, modification or non-renewal of any such policy of
insurance, a copy of a renewal or replacement certificate of insurance (or other evidence of renewal of a policy previously
delivered to the Agent, including an insurance binder) together with evidence satisfactory to the Agent of payment of the
premium therefor.


 


(g)          If
any portion of any Mortgaged Property is at any time located in an area identified by the Federal Emergency Management Agency (or
any successor agency) as a Special Flood Hazard Area with respect to which flood insurance has been made available under the National
Flood Insurance Act of 1968 (as now or hereafter in effect) or any successor act thereto, then the Borrower shall, or shall
cause the applicable Loan Party to (i) maintain, or cause to be maintained, with a financially sound and reputable insurer,
flood insurance in an amount and otherwise sufficient to comply with all applicable rules and regulations promulgated pursuant
to the Flood Insurance Laws and (ii) deliver to the Agent evidence of such compliance
in form and substance reasonably acceptable to the Agent.


 


None of the Credit Parties, or their agents
or employees shall be liable for any loss or damage insured by the insurance policies required to be maintained under this Section
6.07. Each Loan Party shall look solely to its insurance companies or any other parties other than the Credit Parties for the
recovery of such loss or damage and such insurance companies shall have no rights of subrogation against any Credit Party or its
agents or employees. If, however, the insurance policies do not provide waiver of subrogation rights against such parties, as required
above, then the Loan Parties hereby agree, to the extent permitted by law, to waive their right of recovery, if any, against the
Credit Parties and their agents and employees. The designation of any form, type or amount of insurance coverage by any Credit
Party under this Section 6.07 shall in no event be deemed a representation, warranty or advice by such Credit Party that
such insurance is adequate for the purposes of the business of the Loan Parties or the protection of their properties.


 






     -89-


     


    

 


6.08.        Compliance
with Laws. Comply in all material respects with the requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its business or property, except in such instances in which (a) such requirement of Law or order, writ,
injunction or decree is being contested in good faith by appropriate proceedings diligently conducted and with respect to which
adequate reserves have been set aside and maintained by the Loan Parties in accordance with GAAP; (b) such contest effectively
suspends enforcement of the contested Laws, and (c) the failure to comply therewith could not reasonably be expected to have a
Material Adverse Effect.


 


6.09.        Books
and Records; Accountants.


 


(a)          Maintain
proper books of record and account, in which full, true and correct entries in conformity with GAAP consistently applied shall
be made of all financial transactions and matters involving the assets and business of the Loan Parties or such Subsidiary, as
the case may be; and (ii) maintain such books of record and account in material conformity with all applicable requirements of
any Governmental Authority having regulatory jurisdiction over the Loan Parties or such Subsidiary, as the case may be.


 


(b)          at
all times retain a Registered Public Accounting Firm which is reasonably satisfactory to the Agent and instruct such Registered
Public Accounting Firm to cooperate with, and be available to, the Agent or its representatives to discuss the Loan Parties’
financial performance, financial condition, operating results, controls, and such other matters, within the scope of the retention
of such Registered Public Accounting Firm, as may be raised by the Agent.


 


6.10.        Inspection
Rights.


 


(a)          Permit
representatives and independent contractors of the Agent to visit and inspect any of its properties, to examine its corporate,
financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and accounts
with its directors, officers, and Registered Public Accounting Firm, all at the expense of the Loan Parties and at such reasonable
times during normal business hours and as often as may be reasonably desired, upon reasonable advance notice to the Lead Borrower;
provided, however, that when a Default or an Event of Default exists the Agent (or any of its representatives or
independent contractors) may do any of the foregoing at the expense of the Loan Parties at any time during normal business hours
and without advance notice.


 






     -90-


     


    

 


(b)          Upon
the request of the Agent after reasonable prior notice, permit the Agent or professionals (including investment bankers, consultants,
accountants, and lawyers) retained by the Agent to conduct commercial finance examinations and other evaluations of the Loan Parties,
including, without limitation, of (i) the Lead Borrower’s practices in the computation of the Borrowing Base (ii) the assets
included in the Borrowing Base and related financial information such as, but not limited to, sales, gross margins, payables, accruals
and reserves, and (iii) the Loan Parties’ business plan, forecasts and cash flows. The Loan Parties shall pay the fees and
expenses of the Agent and such professionals with respect to such examinations and evaluations (including, without limitation,
customary per diem charges for auditors and field examiners), subject to the cap set forth in the definition of “Credit Party
Expenses”.


 


(c)          Upon
the request of the Agent after reasonable prior notice, permit the Agent or professionals (including appraisers) retained by the
Agent to conduct appraisals of the Collateral, including, without limitation, the assets included in the Borrowing Base. The Loan
Parties shall pay the fees and expenses of the Agent and such professionals with respect to such appraisals, subject to the cap
set forth in the definition of “Credit Party Expenses”. Without limiting the foregoing, the Loan Parties acknowledge
that the Agent may, in its discretion, undertake up to three (3) Inventory appraisals in each twelve month period at the Loan Parties’
expense. Notwithstanding the foregoing, the Agent may cause additional appraisals to be undertaken (i) as it in its discretion
deems necessary or appropriate, at the Credit Parties’ expense or, (ii) if required by Law or if a Default or Event of Default
shall have occurred and be continuing, at the expense of the Loan Parties.


 


6.11.        Additional
Loan Parties. Notify the Agent at the time that any Person becomes a Subsidiary or a Loan Party (as defined in the Term Loan
Agreement), and promptly thereafter (and in any event within fifteen (15) days), cause any such Person (a) which is not a CFC
to (i) become a Loan Party by executing and delivering to the Agent a Joinder to this Agreement or a joinder to the Security Agreement
or such other documents as the Agent shall deem appropriate for such purpose, (ii) grant a Lien to the Agent on such Person’s
assets of the same type that constitute Collateral to secure the Obligations, and (iii) deliver to the Agent documents of the
types referred to in clauses (iii) and (iv) of Section 4.01(a) and favorable opinions of counsel to such Person (which
shall cover, among other things, the legality, validity, binding effect and enforceability of the documentation referred to in
clause (a)), and (b) if any Equity Interests or Indebtedness of such Person are owned by or on behalf of any Loan Party, to pledge
such Equity Interests and promissory notes evidencing such Indebtedness (except that, if such Subsidiary is a CFC, the Equity
Interests of such Subsidiary to be pledged may be limited to 65% of the outstanding voting Equity Interests of such Subsidiary
and 100% of the non-voting Equity Interests of such Subsidiary, in each case in form, content and scope reasonably satisfactory
to the Agent. In no event shall compliance with this Section 6.11 waive or be deemed a waiver or Consent to any transaction
giving rise to the need to comply with this Section 6.11 if such transaction was not otherwise expressly permitted by this
Agreement or constitute or be deemed to constitute, with respect to any Subsidiary, an approval of such Person as a Borrower or
Guarantor hereunder or permit the inclusion of any acquired assets in the computation of the Borrowing Base.


 






     -91-


     


    

 


6.12.        Cash
Management.


 


(a)          On
or prior to the Closing Date enter into an Account Control Agreement satisfactory in form and substance to the Agent with each
Controlled Account Bank (collectively, the “Controlled Accounts”).


 


(b)          ACH
or wire transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) to a Controlled
Account all amounts on deposit in each DDA (net of any minimum balance, not to exceed $2,500.00, as may be required to be kept
in the subject DDA by the depository institution at which such DDA is maintained).


 


(c)          cause
the ACH or wire transfer to the collection account maintained by the Agent at Reference Bank (the “Collection Account”),
no less frequently than daily (and whether or not there are then any outstanding Obligations), all cash receipts and collections
received by each Loan Party from all sources, including, without limitation, the following:


 


(i)  
    all available cash receipts from the sale of Inventory (including without limitation, proceeds
of credit card charges) and other assets (whether or not constituting Collateral);


 


(ii)      all
proceeds of collections of Accounts;


 


(iii)     all
Net Proceeds, and all other cash payments received by a Loan Party from any Person or from any source or on account of any Disposition
or other transaction or event, including, without limitation, any Prepayment Event;


 


(iv)     the
contents then on deposit in each DDA (net of any minimum balance, not to exceed $2,500.00, as may be required to be kept in the
subject DDA by the depository institution at which such DDA is maintained); and


 


(v)      the
then entire ledger balance of each Controlled Account (net of any minimum balance, not to exceed $2,500.00, as may be required
to be kept in the subject Controlled Account by the Controlled Account Bank).


 


(d)          The
Collection Account shall at all times be under the sole dominion and control of the Agent. The Loan Parties hereby acknowledge
and agree that (i) the Loan Parties have no right of withdrawal from the Collection Account, (ii) the funds on deposit in the Collection
Account shall at all times be collateral security for all of the Obligations and (iii) the funds on deposit in the Collection Account
shall be applied to the Obligations as provided in this Agreement. In the event that, notwithstanding the provisions of this Section
6.12, any Loan Party receives or otherwise has dominion and control of any such cash receipts or collections, such receipts
and collections shall be held in trust by such Loan Party for the Agent, shall not be commingled with any of such Loan Party’s
other funds or deposited in any account of such Loan Party and shall, not later than the Business Day after receipt thereof, be
deposited into the Collection Account or dealt with in such other fashion as such Loan Party may be instructed by the Agent.


 






     -92-


     


    

 


(e)          Upon
the request of the Agent, cause bank statements and/or other reports to be delivered to the Agent not less often than monthly,
accurately setting forth all amounts deposited in each Controlled Account to ensure the proper transfer of funds as set forth above.


 


6.13.        Information
Regarding the Collateral.


 


(a)          Furnish
to the Agent at least thirty (30) days prior written notice of any change in: (i) any Loan Party’s name or in any trade name
used to identify it in the conduct of its business or in the ownership of its properties; (ii) the location of any Loan Party’s
chief executive office, its principal place of business, any office in which it maintains books or records relating to Collateral
owned by it or any office or facility at which Collateral owned by it is located (including the establishment of any such new office
or facility); (iii) any Loan Party’s organizational structure or jurisdiction of incorporation or formation; or (iv) any
Loan Party’s Federal Taxpayer Identification Number or organizational identification number assigned to it by its state of
organization. The Loan Parties shall not effect or permit any change referred to in the preceding sentence unless all filings have
been made under the UCC or otherwise that are required in order for the Agent to continue at all times following such change to
have a valid, legal and perfected first priority security interest in all the Collateral for its own benefit and the benefit of
the other Credit Parties.


 


(b)          Should
any of the information on any of the Schedules hereto become inaccurate or misleading in any material respect as a result of changes
after the Closing Date, advise the Agent in writing of such revisions or updates as may be necessary or appropriate to update or
correct the same. From time to time as may be reasonably requested by the Agent, the Lead Borrower shall supplement each Schedule
hereto, or any representation herein or in any other Loan Document, with respect to any matter arising after the Closing Date that,
if existing or occurring on the Closing Date, would have been required to be set forth or described in such Schedule or as an exception
to such representation or that is necessary to correct any information in such Schedule or representation which has been rendered
inaccurate thereby (and, in the case of any supplements to any Schedule, such Schedule shall be appropriately marked to show the
changes made therein). Notwithstanding the foregoing, no supplement or revision to any Schedule or representation shall be deemed
the Credit Parties’ consent to the matters reflected in such updated Schedules or revised representations nor permit the
Loan Parties to undertake any actions otherwise prohibited hereunder or fail to undertake any action required hereunder from the
restrictions and requirements in existence prior to the delivery of such updated Schedules or such revision of a representation;
nor shall any such supplement or revision to any Schedule or representation be deemed the Credit Parties’ waiver of any Default
or Event of Default resulting from the matters disclosed therein.


 


6.14.        Physical
Inventories.


 


(a)          Cause
not less than one physical inventory to be undertaken, at the expense of the Loan Parties, in each Fiscal Quarter and periodic
cycle counts, in each case consistent with past practices, conducted by such inventory takers as are satisfactory to the Agent
(and Agent hereby agrees that the professionals performing such inventory counts as of the Closing Date are acceptable) and following
such methodology as is consistent with the methodology used in the immediately preceding inventory or as otherwise may be satisfactory
to the Agent. The Agent, at the expense of the Loan Parties, may participate in and/or observe each scheduled physical count of
Inventory which is undertaken on behalf of any Loan Party. The Lead Borrower, within 5 Business Days following the completion of
such inventory, shall provide the Agent with a reconciliation of the results of such inventory (as well as of any other physical
inventory or cycle counts undertaken by a Loan Party) and shall post such results to the Loan Parties’ stock ledgers and
general ledgers, as applicable.


 






     -93-


     


    

 


(b)          Permit
the Agent, in its discretion, if any Default or Event of Default exists, to cause additional such inventories to be taken as the
Agent determines (each, at the expense of the Loan Parties).


 


6.15.        Environmental
Laws.


 


(a)          Conduct
its operations and keep and maintain its Real Estate in material compliance with all Environmental Laws; (b) obtain and renew all
environmental permits necessary for its operations and properties; and (c) implement any and all investigation, remediation, removal
and response actions that are lawfully required to maintain the value and marketability of the Real Estate or to otherwise comply
with Environmental Laws pertaining to the presence, generation, treatment, storage, use, disposal, transportation or release of
any Hazardous Materials on, at, in, under, above, to, from or about any of its Real Estate, provided, however, that
neither a Loan Party nor any of its Subsidiaries shall be required to undertake any such cleanup, removal, remedial or other action
to the extent that its obligation to do so is being contested in good faith and by proper proceedings and adequate reserves have
been set aside and are being maintained by the Loan Parties with respect to such circumstances in accordance with GAAP.


 


6.16.        Further
Assurances.


 


(a)          Execute
any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the
filing and recording of financing statements and other documents), that may be required under any Law, or which any Agent may request,
to effectuate the transactions contemplated by the Loan Documents or to grant, preserve, protect or perfect the Liens created or
intended to be created by the Security Documents or the validity or priority of any such Lien, all at the expense of the Loan Parties.
The Loan Parties also agree to provide to the Agent, from time to time upon request, evidence satisfactory to the Agent as to the
perfection and priority of the Liens created or intended to be created by the Security Documents.


 


(b)          If
any material assets are acquired by any Loan Party after the Closing Date (other than assets constituting Collateral under the
Security Documents that become subject to the perfected first-priority Lien under the Security Documents upon acquisition thereof),
notify the Agent thereof, and the Loan Parties will cause such assets to be subjected to a Lien securing the Obligations and will
take such actions as shall be necessary or shall be requested by any Agent to grant and perfect such Liens, including actions described
in paragraph (a) of this Section 6.16, and including, with respect to Real Estate, such actions as would have been required
under Section 4.01 had such Real Estate been owned as of the Closing Date, all at the expense of the Loan Parties. In no event
shall compliance with this Section 6.16(b) waive or be deemed a waiver or Consent to any transaction giving rise to the
need to comply with this Section 6.16(b) if such transaction was not otherwise expressly permitted by this Agreement or
constitute or be deemed to constitute Consent to the inclusion of any acquired assets in the computation of the Borrowing Base.


 






     -94-


     


    

 


(c)          Upon
the request of the Agent, use commercially reasonable efforts to cause each of its customs brokers, freight forwarders, consolidators
and/or carriers to deliver an agreement (including, without limitation, a Customs Broker/Carrier Agreement) to the Agent covering
such matters and in such form as the Agent may reasonably require.


 


6.17.    
   Compliance with Terms of Leaseholds.


 


Except as otherwise
expressly permitted hereunder, (a) make all payments and otherwise perform all obligations in respect of all Leases to which any
Loan Party or any of its Subsidiaries is a party, keep such Leases in full force and effect (b) not allow such Leases to lapse
or be terminated or any rights to renew such Leases to be forfeited or cancelled except in the ordinary course of business, consistent
with past practices, (c) notify the Agent of any default by any party with respect to such Leases and cooperate with the Agent
in all respects to cure any such default, and (d) cause each of its Subsidiaries to do the foregoing, except, in any case, where
the failure to do so, either individually or in the aggregate, could not be reasonably likely to have a Material Adverse Effect.


 


6.18.  
     Material Contracts. (a) Perform and observe all the terms and provisions of each
Material Contract to be performed or observed by it, (b) maintain each such Material Contract in full force and effect except
to the extent such Material Contract is no longer used or useful in the conduct of the business of the Loan Parties in the
ordinary course of business, consistent with past practices, (c) enforce each such Material Contract in accordance with its
terms, and (d) cause each of its Subsidiaries to do the foregoing.


 


6.19.  
    Delivery of Organizational Documents. Promptly deliver to the Agent copies of any
amendments or modifications to its articles of organization, and operating agreement, certified with respect to (a) the
articles of organization, by the Secretary of State of the state of formation, (b) the certificate of registration or
authorization in any jurisdiction where it is or may be registered or authorized to conduct business as a foreign entity, by
the Secretary of State of such jurisdiction, and (c) the operating agreement, by its secretary or manager; provided, however,
that such documents shall not be amended or modified if the effect thereof, either individually or in the aggregate, could
reasonably be expected to be materially adverse to the interests of the Agent or Lenders.


 


6.20.   
    Use of Loan Proceeds. Use Revolving Loans solely for the purposes set forth in Section
7.11.


 


6.21.     
  Accounts Relating to Contracts with the United States of America. If any of the accounts, chattel paper,
general intangibles or instruments constituting Collateral arise out of contracts with the United States of America or any of
its departments, agencies or instrumentalities, notify the Agent and, promptly following the request of the Agent, execute
any necessary writings in order that all money due or to become due under such contracts shall be assigned to the Agent and
proper notice of the assignment given under the Federal Assignment of Claims Act.


 






     -95-


     


    

 


6.22.        Post-Closing
Covenant. The Loan Parties shall, and shall cause each of their respective Subsidiaries to, take each of the actions set forth
on Schedule 6.22 within the time period prescribed therefor on such schedule (as such time periods may be extended by the Agent
in its sole discretion).


 


ARTICLE
VII

NEGATIVE COVENANTS


 


So long as any Lender shall have any Commitment
hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied (other than contingent indemnification claims
for which a claim has not been asserted), no Loan Party shall, nor shall it permit any Subsidiary to, directly or indirectly:


 


7.01.     
  Liens. Create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues,
whether now owned or hereafter acquired or sign or file or suffer to exist under the UCC or any similar Law or statute of any
jurisdiction a financing statement that names any Loan Party or any Subsidiary thereof as debtor; sign or suffer to exist any
security agreement authorizing any Person thereunder to file such financing statement; sell any of its property or assets
subject to an understanding or agreement (contingent or otherwise) to repurchase such property or assets with recourse to it
or any of its Subsidiaries; or assign or otherwise transfer any accounts or other rights to receive income, other than, as to
all of the above, Permitted Encumbrances.


 


7.02.      
 Investments. Make any Investments, except Permitted Investments.


 


7.03.        Indebtedness;
Disqualified Stock; Equity Issuances.


 


(a)           Create,
incur, assume, guarantee, suffer to exist or otherwise become or remain liable with respect to, any Indebtedness, except Permitted
Indebtedness; (b) issue Disqualified Stock, or (c) issue and sell any other Equity Interests unless (i) such Equity Interests shall
be issued solely by the Parent and not by a Subsidiary of a Loan Party, (ii) such Equity Interests provide that all dividends and
other Restricted Payments in respect thereof shall be made solely in additional shares of such Equity Interests, in lieu of cash,
(iii) such Equity Interests shall not be subject to redemption other than redemption at the option of the Parent and in accordance
with the limitations contained in this Agreement, and (iv) all Restricted Payments in respect of such Equity Interests are expressly
subordinated to the Obligations; provided, however, that notwithstanding the foregoing, Parent may issue Permitted Preferred Stock.


 


7.04.        Fundamental
Changes. Merge, dissolve, liquidate, consolidate with or into another Person, (or agree to do any of the foregoing), except
that, so long as no Default or Event of Default shall have occurred and be continuing prior to or immediately after giving effect
to any action described below or would result therefrom:


 


(a)          any
Subsidiary which is not a Loan Party may merge with (i) a Loan Party, provided that the Loan Party shall be the continuing
or surviving Person, or (ii) any one or more other Subsidiaries which are not Loan Parties, provided that when any wholly-owned
Subsidiary is merging with another Subsidiary, the wholly-owned Subsidiary shall be the continuing or surviving Person;


 






     -96-


     


    

 


(b)          any
Subsidiary which is a Loan Party may merge into any Subsidiary which is a Loan Party or into a Borrower, provided that in
any merger involving a Borrower, a Borrower shall be the continuing or surviving Person; and


 


(c)          in
connection with a Permitted Acquisition, any Subsidiary of a Loan Party may merge with or into or consolidate with any other Person
or permit any other Person to merge with or into or consolidate with it; provided that (i) the Person surviving such merger
shall be a wholly-owned Subsidiary of a Loan Party and such Person shall become a Loan Party in accordance with the provisions
of Section 6.11 hereof, and (ii) in the case of any such merger to which any Loan Party is a party, such Loan Party is the
surviving Person.


 


7.05.   
    Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except
Permitted Dispositions.


 


7.06.   
    Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, or incur
any obligation (contingent or otherwise) to do so, except that each of the following shall be permitted so long as no Default
or Event of Default shall have occurred and be continuing prior, or immediately after giving effect, to the following, or
would result therefrom:


 


(a)          each
Subsidiary of a Loan Party may make Restricted Payments to any Loan Party other than to the Parent;


 


(b)          the
Loan Parties and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock
or other common Equity Interests of such Person;


 


(c)          the
Loan Parties may declare and pay cash dividends to the Parent not to exceed an amount necessary to permit the Parent to pay their
proportionate share of (i) reasonable and customary corporate and operating expenses (including reasonable out-of-pocket expenses
for legal, administrative and accounting services provided by third parties, and compensation, benefits and other amounts payable
to officers and employees in connection with their employment in the ordinary course of business and to board of director observers),
(ii) franchise fees or similar taxes and fees required to maintain its corporate existence, and (iii) the tax liability of
the affiliated group of corporations that file consolidated Federal income tax returns (or that file state and local income tax
returns on a Consolidated basis); and


 


 (d)          the Lead
Borrower may distribute to the Parent and the Parent may in turn distribute to the holders of Permitted Preferred Stock, dividends
in common Equity Interests or Permitted Preferred Stock in an amount not to exceed 15% per annum of the face amount of such Permitted
Preferred Stock.


 


7.07.        Prepayments
of Indebtedness. Prepay, redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity thereof in any manner
any Indebtedness, or make any payment in violation of any subordination terms of any Subordinated Indebtedness, except (a) as
long as no Default or Event of Default then exists, regularly scheduled or mandatory repayments, repurchases, redemptions or defeasances
of (i) Permitted Indebtedness (other than Subordinated Indebtedness), and (ii) Subordinated Indebtedness in accordance with the
subordination terms thereof and (b) Permitted Refinancings of any such Indebtedness.


 






     -97-


     


    

 


7.08.        Change
in Nature of Business.


 


(a)          In
the case of the Parent, engage in any business or activity other than (i) the direct or indirect ownership of all outstanding
Equity Interests in the other Loan Parties and Subsidiaries, (ii) maintaining its corporate existence, (iii) participating in tax,
accounting and other administrative activities as the parent of the consolidated group of companies, including the Loan Parties
and Subsidiaries, (iv) the execution and delivery of the Loan Documents to which it is a party and the performance of its obligations
thereunder, and (v) activities incidental to the businesses or activities described in clauses (i) through (iv) of this Section
7.08(a).


 


(b)          In
the case of each of the Loan Parties, engage in any line of business substantially different from the Business conducted by the
Loan Parties and their Subsidiaries on the Closing Date or any business substantially related or incidental thereto.


 


(c)          In
the case of the Loan Parties, (i) materially alter the terms or extent of trade support afforded by the Loan Parties to their Affiliates,
from the terms or extent of trade support so afforded by Loan Parties to their Affiliates as of the Closing Date, or (ii) alter
the transfer pricing terms as between Loan Parties and their Affiliates from the transfer pricing terms utilized among them as
of the Closing Date.


 


7.09.   
    Transactions with Affiliates. Enter into, renew, extend or be a party to any transaction of
any kind with any Affiliate of any Loan Party, whether or not in the ordinary course of business, other than on fair and
reasonable terms substantially as favorable to the Loan Parties or such Subsidiary as would be obtainable by the Loan Parties
or such Subsidiary at the time in a comparable arm’s length transaction with a Person other than an Affiliate, provided
that the foregoing restriction shall not apply to (a) a transaction between or among the Loan Parties, (b) transactions
described on Schedule 7.09 hereto, (c) advances for commissions, travel and other similar purposes in the ordinary
course of business to directors, officers and employees, (d) the payment of reasonable fees and out-of-pocket costs to
directors, and compensation and employee benefit arrangements paid to, and indemnities provided for the benefit of,
directors, officers or employees of the Parent or any of its Subsidiaries, and (e) as long as no Change of Control results
therefrom, any issuances of securities of the Parent (other than Disqualified Stock and other Equity Interests not permitted
hereunder) or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment
agreements, stock options, equity compensation, bonus, other compensation arrangements and stock ownership plans (in each
case in respect of Equity Interests in the Parent) of the Parent or any of its Subsidiaries.


 






     -98-


     


    

 


7.10.   
    Burdensome Agreements. Enter into or permit to exist any Contractual Obligation (other than
this Agreement or any other Loan Document or the Term Loan Documents) that (a) limits the ability (i) of any Subsidiary
to make Restricted Payments or other distributions to any Loan Party or to otherwise transfer property to or invest in a Loan
Party, (ii) of any Subsidiary to Guarantee the Obligations, (iii) of any Subsidiary to make or repay loans to a Loan Party,
or (iv) of the Loan Parties or any Subsidiary to create, incur, assume or suffer to exist Liens on property of such Person in
favor of the Agent; provided, however, that this clause (iv) shall not prohibit any negative pledge incurred or
provided in favor of any holder of Indebtedness permitted under clause (b) of the definition of Permitted Indebtedness solely
to the extent any such negative pledge relates to the property financed by or the subject of such Indebtedness; or
(b) requires the grant of a Lien to secure an obligation of such Person if a Lien is granted to secure another
obligation of such Person.


 


7.11.        Use
of Proceeds. Use the proceeds of any Credit Extension, whether directly or indirectly, and whether immediately, incidentally
or ultimately, (a) to purchase or carry margin stock (within the meaning of Regulation U of the FRB) or to extend credit to others
for the purpose of purchasing or carrying margin stock or to refund Indebtedness originally incurred for such purpose, or (b)
for any purposes other than (i) the acquisition of working capital assets in the ordinary course of business, (ii) to finance
Capital Expenditures of the Loan Parties, (iii) for general corporate purposes and (iv) to refinance the Indebtedness outstanding
under the Existing Credit Agreement, in each case to the extent expressly permitted under Law and the Loan Documents.


 


7.12.        Amendment
of Material Documents; Amendments to Term Loan Documents. (a) Amend, modify or waive any of a Loan Party’s
rights under (a) its Organization Documents in a manner materially adverse to the Credit Parties, or (b) any Material Contract
or Material Indebtedness (other than on account of any Permitted Refinancing thereof), in each case to the extent that such amendment,
modification or waiver would result in a Default or Event of Default under any of the Loan Documents, would be materially adverse
to the Credit Parties, or otherwise would be reasonably likely to have a Material Adverse Effect.


 


(b)           Amend,
supplement or otherwise modify the Term Loan Agreement or any other Term Loan Document, except to the extent permitted under the
Intercreditor Agreement.


 


7.13.     
  Fiscal Year. Change the Fiscal Year of any Loan Party, or the accounting policies or reporting
practices of the Loan Parties, except as required by GAAP.


 


7.14.        Deposit Accounts. Open new DDAs unless the Loan Parties shall have delivered to the Agent
appropriate Account Control Agreements consistent with the provisions of Section 6.12 and otherwise satisfactory to
the Agent. No Loan Party shall maintain any bank accounts other than the ones expressly contemplated herein or in Section
6.12 hereof.


 


7.15.        Capital
Expenditures.


 


Borrowers shall not
incur in any Fiscal Year of Parent listed below, Capital Expenditures in an aggregate amount in excess of the amount set forth
below with respect to such Fiscal Year:


 


	 	Fiscal Year	 	Capital Expenditures
	 	2017	 	 	$	3,000,000	 
	 	2018	 	 	$	3,000,000	 
	 	2019 and thereafter	 	 	$	3,000,000	 



 






     -99-


     


    

 


7.16.        Minimum
Availability. Permit average Availability for any 30-day period to be less than $2,500,000 at any time.


 


7.17.        Limitations
on E-Source.  Permit any Loan Party or any of its Subsidiaries to (a) make any Investments in or transfer
any assets to E-Source, (b) enter into, renew, extend or be a party to any transaction of any kind with E-Source, whether or not
in the ordinary course of business, other than on fair and reasonable terms substantially as favorable to the Loan Parties or
such Subsidiary as would be obtainable by the Loan Parties or such Subsidiary at the time in a comparable arm’s length transaction
with a Person other than E-Source, or, other than as set forth on Schedule 7.17, Guarantee any Indebtedness of E-Source. Notwithstanding
the foregoing, any Loan Party may advance funds to E-Source solely to permit E-Source to repay the E-Source Indebtedness as and
when due so long as (i) 100% of any amounts received by any Loan Party or any Subsidiary in connection with the Motiva Litigation
have been applied to prepay the E-Source Indebtedness and (ii) concurrently with the payment in full of the E-Source Indebtedness,
E-Source shall become a Guarantor pursuant to a Joinder and such other documentation reasonably required by the Agent.


 


ARTICLE
VIII

EVENTS OF DEFAULT AND REMEDIES


 


8.01.        Events
of Default. Any of the following shall constitute an Event of Default:


 


(a)          Non-Payment.
The Borrowers or any other Loan Party fails to pay when and as required to be paid, (i) any amount of principal of, or interest
on, any Loan, or (ii) any fee due hereunder, or (iii) any other amount payable hereunder or under any other Loan Document; or


 


(b)          Specific
Covenants. (i) Any Loan Party fails to perform or observe any term, covenant or agreement contained in any of Sections 6.01,
6.02, 6.03, 6.05, 6.07, 6.08, 6.10, 6.11, 6.12, 6.13, 6.19, 6.22 or Article VII; or


 


(c)          Other
Defaults. Any Loan Party fails to perform or observe any other covenant or agreement (not specified in subsection (a) or (b)
above) contained in any Loan Document on its part to be performed or observed and such failure continues for 30 days; or


 


(d)          Representations
and Warranties. Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of any
Loan Party herein, in any other Loan Document, or in any document delivered in connection herewith or therewith (including, without
limitation, any Borrowing Base Certificate) shall be incorrect or misleading in any material respect when made or deemed made;
or


 






     -100-


     


    

 


(e)          Cross-Default.
(i) Any Loan Party (A) fails to make any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand,
or otherwise) in respect of any Material Indebtedness (other than the Term Loan Obligations), or (B) fails to observe or perform
any other agreement or condition relating to any such Material Indebtedness or contained in any instrument or agreement evidencing,
securing or relating thereto (other than the Term Loan Documents), or any other event occurs, the effect of which default or other
event is to cause, or to permit the holder or holders of such Material Indebtedness (other than the Term Loan Obligations) or the
beneficiary or beneficiaries of any Guarantee thereof (or a trustee or agent on behalf of such holder or holders or beneficiary
or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to be demanded or to become due or to be repurchased,
prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness
to be made, prior to its stated maturity or such Guarantee to become payable or cash collateral in respect thereof to be demanded;
or (ii) a Term Loan Event of Default exists; or


 


(f)   
    Insolvency Proceedings, Etc. Any Loan Party institutes or consents to the institution of any
proceeding under any Debtor Relief Law, or makes an assignment for the benefit of creditors; or applies for or consents to
the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for
all or any material part of its property; or a proceeding shall be commenced or a petition filed, without the application or
consent of such Person, seeking or requesting the appointment of any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer is appointed and the appointment continues undischarged, undismissed or unstayed for 60
calendar days or an order or decree approving or ordering any of the foregoing shall be entered; or any proceeding under any
Debtor Relief Law relating to any such Person or to all or any material part of its property is instituted without the
consent of such Person and continues undismissed or unstayed for 45 calendar days, or an order for relief is entered in any
such proceeding; or


 


(g)          Inability
to Pay Debts; Attachment. (i) Any Loan Party or any Subsidiary thereof becomes unable or admits in writing its inability or
fails generally to pay its debts as they become due in the ordinary course of business, or (ii) any writ or warrant of attachment
or execution or similar process is issued or levied against all or any material part of the property of any such Person and is
not released, vacated or fully bonded within 10 days after its issuance or levy; or


 


(h)          Judgments.
There is entered against any Loan Party or any Subsidiary thereof (i) one or more judgments or orders for the payment of money
in an aggregate amount (as to all such judgments and orders) exceeding $500,000 (to the extent not covered by independent third-party
insurance as to which the insurer is rated at least “A” by A.M. Best Company, has been notified of the potential claim
and does not dispute coverage), or (ii) any one or more non-monetary judgments that have, or could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect and, in either case, (A) enforcement proceedings are commenced by any
creditor upon such judgment or order, or (B) there is a period of 15 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, is not in effect; or


 


(i)   
    ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which
has resulted or could reasonably be expected to result in liability of any Loan Party under Title IV of ERISA to the
Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of $500,000 or which would reasonably likely
result in a Material Adverse Effect, or (ii) a Loan Party or any ERISA Affiliate fails to pay when due, after the expiration
of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA
under a Multiemployer Plan in an aggregate amount in excess of $500,000 or which would reasonably likely result in a Material
Adverse Effect; or


 






     -101-


     


    

 


(j)       
   Invalidity of Loan Documents. (i) Any provision of any Loan Document, at any time after its
execution and delivery and for any reason, ceases to be in full force and effect; or any Loan Party or any other Person
contests in any manner the validity or enforceability of any provision of any Loan Document; or any Loan Party denies that it
has any or further liability or obligation under any provision of any Loan Document, or purports to revoke, terminate or
rescind any provision of any Loan Document or seeks to avoid, limit or otherwise adversely affect any Lien purported to be
created under any Security Document; or (ii) any Lien purported to be created under any Security Document shall cease to
be, or shall be asserted by any Loan Party not to be, a valid and perfected Lien on any Collateral, with the priority
required by the applicable Security Document; or


 


(k)          Change
of Control. There occurs any Change of Control; or


 


(l)    
      Cessation of Business. Except as otherwise expressly permitted hereunder, any Loan Party shall take
any action, or shall make a determination, whether or not yet formally approved by any Loan Party’s management or board
of directors, to (i) suspend the operation of all or a material portion of its business in the ordinary course, (ii) suspend
the payment of any material obligations in the ordinary course or suspend the performance under material contracts in the
ordinary course, (iii) solicit proposals for the liquidation of, or undertake to liquidate, all or a material portion of its
assets, or (iv) solicit proposals for the employment of, or employ, an agent or other third party to conduct a program of
closings, liquidations, or “Going-Out-Of-Business” sales of any material portion of its business; or


 


(m)         Loss
of Collateral. There occurs any uninsured loss to any material portion of the Collateral; or


 


(n)          Breach
of Contractual Obligation. Any Loan Party or any Subsidiary thereof fails to make any payment when due (whether by scheduled
maturity, required prepayment, acceleration, demand, or otherwise) in respect of any Material Contract or fails to observe or perform
any other agreement or condition relating to any such Material Contract or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event occurs, the effect of which default or other event is to cause, or to permit the
counterparty to such Material Contract to terminate such Material Contract; or


 


(o)          Indictment.
(i) Any Loan Party is (A) criminally indicted or convicted of a felony for fraud or dishonesty in connection with the Loan Parties’
business, or (B) charged by a Governmental Authority under any law that would reasonably be expected to lead to forfeiture of any
material portion of Collateral, or (ii) any director or senior officer of any Loan Party is (A) criminally indicted or convicted
of a felony for fraud or dishonesty in connection with the Loan Parties’ business, unless such director or senior officer
promptly resigns or is removed or replaced or (B) charged by a Governmental Authority under any law that would reasonably be expected
to lead to forfeiture of any material portion of Collateral;


 






     -102-


     


    

 


(p)          Subordination.
(i) The subordination provisions of the documents evidencing or governing any Subordinated Indebtedness (the “Subordinated
Provisions”) shall, in whole or in part, terminate, cease to be effective or cease to be legally valid, binding and enforceable
against any holder of the applicable Subordinated Indebtedness or such holder shall fail to comply with such Subordination Provisions;
(ii) any Borrower or any other Loan Party shall, directly or indirectly, disavow or contest in any manner (A) the effectiveness,
validity or enforceability of any of the Subordination Provisions, (B) that the Subordination Provisions exist for the benefit
of the Credit Parties, or (C) that all payments of principal of or premium and interest on the applicable Subordinated Indebtedness,
or realized from the liquidation of any property of any Loan Party, shall be subject to any of the Subordination Provisions or
(iii) any subordination provision set forth in the Intercreditor Agreement shall, in whole or in part, terminate or otherwise fail
or cease to be, in any material respect, valid and binding on, or enforceable against, the Term Loan Agent or any Term Loan Lender.


 


8.02.   
    Remedies Upon Event of Default. If any Event of Default occurs and is continuing, the Agent may,
or, at the request of the Required Lenders shall, take any or all of the following actions:


 


(a)          declare
the Commitments of each Lender to make Loans to be terminated, whereupon such Commitments and obligations shall be terminated;


 


(b)          declare
the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other Obligations (excluding
Other Liabilities not then due and payable) to be immediately due and payable, without presentment, demand, protest or other notice
of any kind, all of which are hereby expressly waived by the Loan Parties; and


 


(c)          subject
to the terms of the Intercreditor Agreement, whether or not the maturity of the Obligations shall have been accelerated pursuant
hereto, proceed to protect, enforce and exercise all rights and remedies of the Credit Parties under this Agreement, any of the
other Loan Documents or Law, including, but not limited to, by suit in equity, action at law or other appropriate proceeding, whether
for the specific performance of any covenant or agreement contained in this Agreement and the other Loan Documents or any instrument
pursuant to which the Obligations are evidenced, and, if such amount shall have become due, by declaration or otherwise, proceed
to enforce the payment thereof or any other legal or equitable right of the Credit Parties;


 


provided, however, that upon
the occurrence of any Default or Event of Default with respect to any Loan Party or any Subsidiary thereof under Section 8.01(f),
the obligation of each Lender to make Loans shall automatically terminate, the unpaid principal amount of all outstanding Loans,
all interest accrued thereon and all other Obligations shall automatically become due and payable without further act of the Agent
or any Lender.


 






     -103-


     


    



 


No
remedy herein is intended to be exclusive of any other remedy and each and every remedy shall be cumulative and shall be in addition
to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or any other provision of
Law.


 


8.03.        Application
of Funds. After the exercise of remedies provided for in Section 8.02 (or after the Obligations have automatically
become immediately due and payable as set forth in the proviso to Section 8.02), any amounts received on account of the
Obligations shall, subject to the provisions of Section 2.14 and the terms of the Intercreditor Agreement, be applied by
the Agent in the following order:


 


First,
to payment of that portion of the Obligations (excluding the Other Liabilities) constituting fees, indemnities, Credit Party Expenses
and other amounts (including fees, charges and disbursements of counsel to the Agent and amounts payable under Article III)
payable to the Agent;


 


Second,
to payment of that portion of the Obligations (excluding the Other Liabilities) constituting indemnities (including indemnities
due under Section 10.03 hereof), Credit Party Expenses, and other amounts (other than principal, interest and fees) payable
to the Lenders (including Credit Party Expenses to the respective Lenders and amounts payable under Article III), ratably
among them in proportion to the amounts described in this clause Second payable to them;


 


Third,
to the extent not previously reimbursed by the Lenders, to payment to the Agent of that portion of the Obligations constituting
principal and accrued and unpaid interest on any Permitted Overadvances;


 


Fourth,
to the extent that Swing Line Loans have not been refinanced by a Revolving Loan, payment to the Swing Line Lender of that portion
of the Obligations constituting principal and accrued and unpaid interest on the Swing Line Loans;


 


Fifth,
to payment of that portion of the Obligations constituting accrued and unpaid interest on the Revolving Loans and other Obligations,
and fees (including Commitment Fees but excluding any Early Termination Fees), ratably among the Lenders in proportion to the
respective amounts described in this clause Fifth payable to them;


 


Sixth,
to payment of that portion of the Obligations constituting unpaid principal of the Loans, ratably among the Lenders in proportion
to the respective amounts described in this clause Sixth held by them;


 


Seventh,
to payment of all other Obligations (including without limitation the cash collateralization of unliquidated indemnification obligations
as provided in Section 10.04, but excluding any Other Liabilities) and Obligations under Swap Contracts, ratably among
the Credit Parties in proportion to the respective amounts described in this clause Seventh held by them;


 


Eighth,
to payment of all other Obligations arising from Bank Products and Swap Contracts, ratably among the Credit Parties in proportion
to the respective amounts described in this clause Eighth held by them; and


 






    	-104- 



     


    

 


Last,
the balance, if any, after all of the Obligations have been indefeasibly paid in full, to the Loan Parties or as otherwise required
by Law.


 


Excluded
Swap Obligations with respect to any Loan Party shall not be paid with amounts received from such Loan Party, but appropriate
adjustments shall be made with respect to payments from other Loan Parties to preserve the allocation to the Obligations otherwise
set forth above in this Section.


 


ARTICLE
IX

THE AGENT


 


9.01.        Appointment
and Authority.


 


Each of the Lenders (in its capacity as a Lender) and the Swing Line Lender hereby irrevocably appoints Encina
Business Credit, LLC to act on its behalf as the administrative agent and collateral agent hereunder and under the other Loan
Documents and authorizes the Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agent
by the terms hereof or thereof (including, without limitation, acquiring, holding and enforcing any and all Liens on Collateral
granted by any of the Loan Parties to secure any of the Obligations), together with such actions and powers as are reasonably
incidental thereto. The provisions of this Article are solely for the benefit of the Agent and the other Credit Parties, and no
Loan Party or any Subsidiary thereof shall have rights as a third party beneficiary of any of such provisions. It is understood
and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with
reference to the 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 as a matter of market custom, and is intended to create or reflect only
an administrative relationship between contracting parties.


 


9.02.        Rights
as a Lender. The Person serving as the Agent hereunder shall have the same rights and powers in its capacity as a Lender as
any other Lender and may exercise the same as though it were not the Agent and the term “Lender” or “Lenders”
shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Agent
hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, act as the financial
advisor or in any other advisory capacity for and generally engage in any kind of business with the Loan Parties or any Subsidiary
or other Affiliate thereof as if such Person were not the Agent hereunder and without any duty to account therefor to the Lenders.


 


9.03.        Exculpatory
Provisions. The Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan
Documents. Without limiting the generality of the foregoing, the Agent:


 


(a)          shall
not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and
is continuing;


 






    	-105- 



     


    

 


(b)          shall
not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby or by the other Loan Documents that the Agent is required to exercise as directed in writing by
the Applicable Lenders; provided, that, the Agent shall not be required to take any action that, in its opinion
or the opinion of its counsel, may expose the Agent to liability or that is contrary to any Loan Document or Law, including for
the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect
a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law; and


 


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


 


The
Agent shall not be liable for any action taken or not taken by it (i) with the Consent or at the request of the Applicable Lenders
(as the Agent shall believe in good faith shall be necessary under the circumstances as provided in Sections 10.01 and
8.02) or (ii) in the absence of its own gross negligence or willful misconduct as determined by a final and non-appealable
judgment of a court of competent jurisdiction.


 


The
Agent shall not be deemed to have knowledge of any Default or Event of Default unless and until notice describing such Default
or Event of Default is given to the Agent by the Loan Parties or a Lender. In the event that the Agent obtains such actual knowledge
or receives such a notice, the Agent shall give prompt notice thereof to each of the other Credit Parties. Upon the occurrence
of a Default or an Event of Default, the Agent shall take such action with respect to such Default or Event of Default as shall
be reasonably directed by the Applicable Lenders. Unless and until the Agent shall have received such direction, the Agent may
(but shall not be obligated to) take such action, or refrain from taking such action, with respect to any such Default or Event
of Default as it shall deem advisable in the best interest of the Credit Parties. In no event shall the Agent be required to comply
with any such directions to the extent that the Agent believes that its compliance with such directions would be unlawful.


 


The
Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation
made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other
document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of
any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default or
Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or
any other agreement, instrument or document or the creation, perfection or priority of any Lien purported to be created by the
Security Documents, (v) the value or the sufficiency of any Collateral, or (vi) the satisfaction of any condition set forth in
Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Agent.


 


9.04.        Reliance
by Agent. The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing (including, but not limited to, any electronic message,
Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise
authenticated by the proper Person. The Agent also may rely upon any statement made to it orally or by telephone and believed
by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance
with any condition hereunder to the making of a Loan that by its terms must be fulfilled to the satisfaction of a Lender, the
Agent may presume that such condition is satisfactory to such Lender unless the Agent shall have received written notice to the
contrary from such Lender prior to the making of such Loan. The Agent may consult with legal counsel (who may be counsel for any
Loan Party), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken
by it in accordance with the advice of any such counsel, accountants or experts.


 






    	-106- 



     


    

 


9.05.        Delegation
of Duties. The Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other
Loan Document by or through any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any
and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions
of this Article shall apply to any such sub-agent and to the Related Parties of the Agent and any such sub-agent, and shall apply
to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities
as the Agent. The Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that
a court of competent jurisdiction determines in a final and non-appealable judgment that the Agent acted with gross negligence
or willful misconduct in the selection of such sub-agents.


 


9.06.        Resignation
of Agent. The Agent may at any time give written notice of its resignation to the Lenders and the Lead Borrower. Upon receipt
of any such notice of resignation, the Required Lenders shall have the right, in consultation with the Lead Borrower, to appoint
a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the
United States. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may on behalf of the Lenders,
appoint a successor Agent meeting the qualifications set forth above; provided, that, if the Agent shall notify
the Lead Borrower and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless
become effective in accordance with such notice and (1) the retiring Agent shall be discharged from its duties and obligations
hereunder and under the other Loan Documents (except that in the case of any Collateral held by the Agent on behalf of the Lenders
under any of the Loan Documents, the retiring Agent shall continue to hold such collateral security until such time as a successor
Agent is appointed) and (2) all payments, communications and determinations provided to be made by, to or through the Agent
shall instead be made by or to each Lender directly, until such time as the Required Lenders appoint a successor Agent as provided
for above in this Section. Upon the acceptance of a successor’s appointment as Agent hereunder, such successor shall succeed
to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Agent, and the retiring
Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged
therefrom as provided above in this Section). The fees payable by the Borrowers to a successor Agent shall be the same as those
payable to its predecessor unless otherwise agreed between the Lead Borrower and such successor. After the retiring Agent’s
resignation hereunder and under the other Loan Documents, the provisions of this Article and Section 10.04 shall continue
in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions
taken or omitted to be taken by any of them while the retiring Agent was acting as Agent hereunder.


 






    	-107- 



     


    

 


9.07.        Non-Reliance
on Agent and Other Lenders. Each Lender acknowledges that it has, independently and without reliance upon the Agent or any
other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without
reliance upon the Agent or any other Lender or any of their Related Parties and based on such documents and information as it
shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon
this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. Except as
provided in Section 9.12, the Agent shall not have any duty or responsibility to provide any Credit Party with any other
credit or other information concerning the affairs, financial condition or business of any Loan Party that may come into the possession
of the Agent.


 


9.08.        No
Other Duties, Etc. Anything herein to the contrary notwithstanding, no bookrunner, arranger, syndication agent or documentation
agent as may be listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement or any
of the other Loan Documents, except in its capacity as the Agent or a Lender hereunder.


 


9.09.        Agent
May File Proofs of Claim. In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding
relative to any Loan Party, the Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein
expressed or by declaration or otherwise and irrespective of whether the Agent shall have made any demand on the Loan Parties)
shall be entitled and empowered, by intervention in such proceeding or otherwise


 


(a)          to
file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other
Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims
of the Lenders, the Agent and the other Credit Parties (including any claim for the reasonable compensation, expenses, disbursements
and advances of the Lenders, the Agent, such Credit Parties and their respective agents and counsel and all other amounts due
the Lenders, the Agent and such Credit Parties under Sections 2.08 and 10.04) allowed in such judicial proceeding;
and


 


(b)          to
collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;


 


and
any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding
is hereby authorized by each Lender to make such payments to the Agent and to pay to the Agent any amount due for the reasonable
compensation, expenses, disbursements and advances of the Agent and its agents and counsel, and any other amounts due the Agent
under Sections 2.08 and 10.04.


 


Nothing
contained herein shall be deemed to authorize the Agent to authorize or consent to or accept or adopt on behalf of any Credit
Party any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Credit
Party or to authorize the Agent to vote in respect of the claim of any Credit Party in any such proceeding.


 






    	-108- 



     


    

 


9.10.        Collateral
and Guaranty Matters. The Credit Parties irrevocably authorize the Agent, at its option and in its discretion,


 


(a)          to
release any Lien on any property granted to or held by the Agent under any Loan Document (i) upon termination of the Aggregate
Commitments and payment in full of all Obligations (other than contingent indemnification obligations for which no claim has been
asserted), (ii) that is sold or to be sold as part of or in connection with any sale permitted hereunder or under any other Loan
Document, or (iii) if approved, authorized or ratified in writing by the Applicable Lenders in accordance with Section 10.01;
and


 


(b)          to
release any Guarantor from its obligations under the Security Agreement if such Person ceases to be a Subsidiary as a result of
a transaction permitted hereunder.


 


Upon
request by the Agent at any time, the Applicable Lenders will confirm in writing the Agent’s authority to release or subordinate
its interest in particular types or items of property, or to release any Guarantor from its obligations under the Security Agreement
pursuant to this Section 9.10. In each case as specified in this Section 9.10, the Agent will, at the Loan Parties’
expense, execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence
the release of such item of Collateral from the assignment and security interest granted under the Security Documents or to subordinate
its interest in such item, or to release such Guarantor from its obligations under the Security Agreement, in each case in accordance
with the terms of the Loan Documents and this Section 9.10.


 


9.11.        Notice
of Transfer. The Agent may deem and treat a Lender party to this Agreement as the owner of such Lender’s portion of
the Obligations for all purposes, unless and until, and except to the extent, an Assignment and Acceptance shall have become effective
as set forth in Section 10.06.


 


9.12.        Reports
and Financial Statements. By signing this Agreement, each Lender:


 


(a)          agrees
to furnish the Agent at such frequency as the Agent may reasonably request) with a summary of all Other Liabilities due or to
become due to such Lender. In connection with any distributions to be made hereunder, the Agent shall be entitled to assume that
no amounts are due to any Lender on account of Other Liabilities unless the Agent has received written notice thereof from such
Lender and if such notice is received, the Agent shall be entitled to assume that the only amounts due to such Lender on account
of Other Liabilities is the amount set forth in such notice;


 


(b)          is
deemed to have requested that the Agent furnish, and the Agent agrees to furnish, such Lender, promptly after they become available,
copies of all Borrowing Base Certificates and financial statements required to be delivered by the Lead Borrower hereunder


 






    	-109- 



     


    

 


(c)          is
deemed to have requested that the Agent furnish, and the Agent agrees to furnish, such Lender, promptly after they become available,
copies of all commercial finance examinations and appraisals of the Collateral received by the Agent (collectively, the “Reports”);


 


(d)          expressly
agrees and acknowledges that the Agent makes no representation or warranty as to the accuracy of the Borrowing Base Certificates,
financial statements or Reports, and shall not be liable for any information contained in any Borrowing Base Certificate, financial
statement or Report;


 


(e)          expressly
agrees and acknowledges that the Reports are not comprehensive audits or examinations, that the Agent or any other party performing
any audit or examination will inspect only specific information regarding the Loan Parties and will rely significantly upon the
Loan Parties’ books and records, as well as on representations of the Loan Parties’ personnel;


 


(f)          agrees
to keep all Borrowing Base Certificates, financial statements and Reports confidential in accordance with the provisions of Section
10.07 hereof; and


 


(g)          without
limiting the generality of any other indemnification provision contained in this Agreement, agrees: (i) to hold the Agent and
any such other Lender preparing a Report harmless from any action the indemnifying Lender may take or conclusion the indemnifying
Lender may reach or draw from any Report in connection with any Credit Extensions that the indemnifying Lender has made or may
make to the Borrowers, or the indemnifying Lender’s participation in, or the indemnifying Lender’s purchase of, a Loan or Loans;
and (ii) to pay and protect, and indemnify, defend, and hold the Agent and any such other Lender preparing a Report harmless from
and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including attorney costs) incurred
by the 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.


 


9.13.        Agency
for Perfection. Each Credit Party hereby appoints each other Credit Party as agent for the purpose of perfecting Liens for
the benefit of the Credit Parties, in assets which, in accordance with Article 9 of the UCC or any other Law of the United States
can be perfected only by possession or control. Should any Credit Party (other than the Agent) obtain possession or control of
any such Collateral, such Credit Party shall notify the Agent thereof, and, promptly upon the Agent’s request therefor shall deliver
such Collateral to the Agent or otherwise deal with such Collateral in accordance with the Agent’s instructions.


 


9.14.        Indemnification
of Agent. Without limiting the obligations of Loan Parties hereunder, to the extent that the Loan Parties for any reason fails
to indefeasibly pay any amount required under Section 10.04 to be paid by them to the Agent (or any sub-agent thereof),
the Lenders shall indemnify the Agent, any sub-agent thereof, and any Related Party, as the case may be ratably according to their
Applicable Percentages, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever that may be imposed on, incurred by, or asserted against
the Agent, any sub-agent thereof, and their Related Parties in any way relating to or arising out of this Agreement or any other
Loan Document or any action taken or omitted to be taken by the Agent, any sub-agent thereof, and their Related Parties in connection
therewith; provided, that, no Lender shall be liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the Agent’s, any sub-agent’s,
and their Related Parties’ gross negligence or willful misconduct as determined by a final and non-appealable judgment of
a court of competent jurisdiction.


 






    	-110- 



     


    

 


9.15.        Relation
among Lenders. The Lenders are not partners or co-venturers, and no Lender shall be liable for the acts or omissions of, or
(except as otherwise set forth herein in case of the Agent) authorized to act for, any other Lender.


 


ARTICLE
X

MISCELLANEOUS


 


10.01.      Amendments,
Etc. No amendment or waiver of any provision of this Agreement or any other Loan Document, and no Consent to any departure
by any Loan Party therefrom, shall be effective unless in writing signed by the Agent, with the Consent of the Required Lenders,
and the Lead Borrower or the applicable Loan Party, as the case may be, and each such waiver or Consent shall be effective only
in the specific instance and for the specific purpose for which given; provided, however, that no such amendment,
waiver or consent shall:


 


(a)          increase
any Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 8.02) without the written Consent
of such Lender;


 


(b)          as
to any Lender, postpone any date fixed by this Agreement or any other Loan Document for (i) any scheduled payment (including the
Maturity Date) or mandatory prepayment of principal, interest, fees or other amounts due hereunder or under any of the other Loan
Documents without the written Consent of such Lender, or (ii) any scheduled or mandatory reduction or termination of the Aggregate
Commitments hereunder or under any other Loan Document, without the written Consent of such Lender;


 


(c)          as
to any Lender, reduce the principal of, or the rate of interest specified herein on, any Loan held by such Lender, or (subject
to clause (iii) of the second proviso to this Section 10.01) any fees or other amounts payable hereunder or under any other
Loan Document to or for the account of such Lender, without the written Consent of such Lender; provided, however,
that only the Consent of the Required Lenders shall be necessary to amend the definition of “Default Rate” or to waive
any obligation of the Borrowers to pay interest at the Default Rate;


 


(d)          as
to any Lender, change Section 2.12 or Section 8.03 in a manner that would alter the pro rata sharing of payments
required thereby without the written Consent of such Lender;


 


(e)          change
any provision of this Section or the definition of “Required Lenders”, or any other provision hereof specifying the
number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination or
grant any consent hereunder, without the written Consent of each Lender;


 






    	-111- 



     


    

 


(f)          except
as expressly permitted hereunder or under any other Loan Document, release, or limit the liability of, any Loan Party without
the written Consent of each Lender;


 


(g)          except
for Permitted Dispositions or as provided in Section 9.10, release all or substantially all of the Collateral from the
Liens of the Security Documents without the written Consent of each Lender;


 


(h)          increase
the Aggregate Commitments without the written Consent of each Lender;


 


(i)          modify
the definition of Permitted Overadvance so as to increase the amount thereof or, except as otherwise provided in such definition,
the time period for which a Permitted Overadvance may remain outstanding without the written Consent of each Lender; and


 


(j)          except
as expressly permitted herein or in any other Loan Document, subordinate the Obligations hereunder or the Liens granted hereunder
or under the other Loan Documents, to any other Indebtedness or Lien, as the case may be without the written Consent of each Lender;


 


and;
provided, further, that (i) no amendment, waiver or Consent shall, unless in writing and signed by the Swing Line
Lender in addition to the Lenders required above, affect the rights or duties of the Swing Line Lender under this Agreement; (ii)
no amendment, waiver or Consent shall, unless in writing and signed by the Agent in addition to the Lenders required above, affect
the rights or duties of any Agent under this Agreement or any other Loan Document; and (iii) the Fee Letter may be amended, or
rights or privileges thereunder waived, in a writing executed only by the parties thereto. Notwithstanding anything to the contrary
herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any
amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with
the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of any Defaulting Lender
may not be increased or extended without the consent of such Lender and (y) any waiver, amendment or modification requiring the
consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender disproportionately adversely relative
to other affected Lenders shall require the consent of such Defaulting Lender.


 


(k)          Notwithstanding
anything to the contrary in this Agreement or any other Loan Document, (x) no provider or holder of any Bank Products or Cash
Management Services 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
any Loan Party, and (y) any Loan Document may be amended and waived with the consent of the Agent at the request of the Borrower
without the need to obtain the consent of any other Lender if such amendment or waiver is delivered in order (i) to comply
with local Law or advice of local counsel, (ii) to cure ambiguities or defects or (iii) to cause any Loan Document to
be consistent with this Agreement and the other Loan Documents.


 






    	-112- 



     


    

 


(l)          If
any Lender does not Consent (a “Non-Consenting Lender”) to a proposed amendment, waiver, consent or release with respect
to any Loan Document that requires the Consent of each Lender and that has been approved by the Required Lenders, the Lead Borrower
may replace such Non-Consenting Lender in accordance with Section 10.13; provided, that, such amendment,
waiver, consent or release can be effected as a result of the assignment contemplated by such Section (together with all other
such assignments required by the Lead Borrower to be made pursuant to this paragraph).


 


(m)          Notwithstanding
any provision herein to the contrary, this Agreement may be amended with the written consent of the Required Lenders, the Agent
and the Borrowers (i) to add one or more additional revolving credit or term loan facilities to this Agreement, and to permit
the extensions of credit and all related obligations and liabilities arising in connection therewith from time to time outstanding
to share ratably (or on a basis subordinated to the existing facilities hereunder) in the benefits of this Agreement and the other
Loan Documents with the obligations and liabilities from time to time outstanding in respect of the existing facilities hereunder,
and (ii) in connection with the foregoing, to permit, as deemed appropriate by the Agent and approved by the Lenders, the Lenders
providing such additional credit facilities to participate in any required vote or action required to be approved by the Required
Lenders or by any other number, percentage or class of Lenders hereunder).


 


10.02.      Notices;
Effectiveness; Electronic Communications.


 


(a)          Notices
Generally. Except in the case of notices and other communications expressly permitted to be given by telephone (and except
as provided in subsection (b) below), all notices and other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or registered mail as follows, and all notices and other communications
expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:


 


(i)          if
to the Loan Parties, the Agent or the Swing Line Lender, to the address, electronic mail address or telephone number specified
for such Person on Schedule 10.02; and


 


(ii)          if
to any other Lender, to the address, electronic mail address or telephone number specified in its Administrative Questionnaire.


 


Notices
and other communications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed
to have been given when received; notices and other communications sent by facsimile shall be deemed to have been given when sent
(except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of
business on the next Business Day for the recipient). Notices and other communications delivered through electronic communications
to the extent provided in subsection (b) below, shall be effective as provided in such subsection (b).


 






    	-113- 



     


    

 


(b)          Electronic
Communications. Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communication
(including e-mail and Internet or intranet websites) pursuant to procedures approved by the Agent; provided, that,
the foregoing shall not apply to notices to any Lender pursuant to Article II if such Lender has notified the Agent that
it is incapable of receiving notices under such Article by electronic communication. The Agent or the Lead Borrower may, in its
discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures
approved by it; provided, that, approval of such procedures may be limited to particular notices or communications.


 


Unless
the Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the
sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested”
function, as available, return e-mail or other written acknowledgement), and (ii) notices or communications posted to an Internet
or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described
in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address
therefor; provided, that, for both clauses (i) and (ii), if such notice, email or other communication is not sent
during the normal business hours of the recipient, such notice, email or communication shall be deemed to have been sent at the
opening of business on the next business day for the recipient.


 


(c)          The
Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW)
DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM
LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING
ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES
OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall
the Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to any Loan
Party, any Lender or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract
or otherwise) arising out of the Loan Parties’ or the Agent’s transmission of Borrower Materials through the Internet.


 


(d)          Change
of Address, Etc. Each of the Loan Parties, the Agent and the Swing Line Lender may change its address or telephone number
for notices and other communications hereunder by notice to the other parties hereto. Each other Lender may change its address
or telephone number for notices and other communications hereunder by notice to the Lead Borrower, the Agent and the Swing Line
Lender. In addition, each Lender agrees to notify the Agent from time to time to ensure that the Agent has on record (i) an effective
address, contact name, telephone number, and electronic mail address to which notices and other communications may be sent and
(ii) accurate wire instructions for such Lender. Furthermore, each Public Lender agrees to cause at least one individual at or
on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation
on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such
Public Lender’s compliance procedures and applicable Law, including United States Federal and state securities Laws, to
make reference to Borrower Materials that are not made available through the “Public Side Information” portion of
the Platform and that may contain material non-public information with respect to the Borrowers or their securities for purposes
of United States Federal or state securities laws.


 






    	-114- 



     


    

 


(e)          Reliance
by Agent and Lenders. The Agent and the Lenders shall be entitled to rely and act upon any notices (including telephonic Notice
of Borrowings and Swing Line Loan Notices) purportedly given by or on behalf of the Loan Parties even if (i) such notices were
not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified
herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. The Loan Parties shall
indemnify the Agent, each Lender and the Related Parties of each of them from all losses, costs, expenses and liabilities resulting
from the reliance by such Person on each notice purportedly given by or on behalf of the Loan Parties. All telephonic notices
to and other telephonic communications with the Agent may be recorded by the Agent, and each of the parties hereto hereby consents
to such recording.


 


10.03.      No
Waiver; Cumulative Remedies. No failure by any Credit Party to exercise, and no delay by any such Person in exercising, any
right, remedy, power or privilege hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder or under any other Loan Document preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges provided herein and in
the other Loan Documents are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law. Without
limiting the generality of the foregoing, the making of a Loan shall not be construed as a waiver of any Default or Event of Default,
regardless of whether any Credit Party may have had notice or knowledge of such Default or Event of Default at the time.


 


Notwithstanding
anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder
and under the other Loan Documents against the Loan Parties or any of them shall be vested exclusively in, and all actions and
proceedings at Law in connection with such enforcement shall be instituted and maintained exclusively by, the Agent in accordance
with Section 8.02 for the benefit of all the Lenders; provided, however, that the foregoing shall not prohibit
(a) the Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Agent)
hereunder and under the other Loan Documents, (b) the Swing Line Lender from exercising the rights and remedies that inure to
its benefit (solely in its capacity Swing Line Lender) hereunder and under the other Loan Documents, or (c) any Lender from exercising
setoff rights in accordance with Section 10.08 (subject to the terms of Section 2.12); and provided, further,
that if at any time there is no Person acting as Agent hereunder and under the other Loan Documents, then (i) the Required Lenders
shall have the rights otherwise ascribed to the Agent pursuant to Section 8.02 and (ii) in addition to the matters set
forth in clauses (b) and (c) of the preceding proviso and subject to Section 2.12, any Lender may, with the
consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.


 






    	-115- 



     


    

 


10.04.      Expenses;
Indemnity; Damage Waiver.


 


(a)          Costs
and Expenses. The Borrowers shall pay all Credit Party Expenses.


 


(b)          Indemnification
by the Loan Parties. The Loan Parties shall indemnify the Agent (and any sub-agent thereof), each other Credit Party, and
each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against,
and hold each Indemnitee harmless (on an after tax basis) from, any and all losses, claims, causes of action, damages, liabilities,
settlement payments, costs, and related expenses (including the fees, charges and disbursements of any counsel for any Indemnitee),
incurred by any Indemnitee or asserted against any Indemnitee by any third party or by any Borrower or any other Loan Party arising
out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any
agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations
hereunder or thereunder, the consummation of the transactions contemplated hereby or thereby, or the administration of this Agreement
and the other Loan Documents, (ii) any Loan or the use or proposed use of the proceeds therefrom, (iii) any actual or alleged
presence or release of Hazardous Materials on or from any property owned or operated by any Loan Party or any of its Subsidiaries,
or any Environmental Liability related in any way to any Loan Party or any of its Subsidiaries, (iv) any claims of, or amounts
paid by any Credit Party to, a Controlled Account Bank or other Person which has entered into a control agreement with any Credit
Party hereunder, or (v) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory, whether brought by a third party or by any Borrower or any other Loan Party
or any of the Loan Parties’ directors, shareholders or creditors, and regardless of whether any Indemnitee is a party thereto,
in all cases, whether or not caused by or arising, in whole or in part, out of the comparative, contributory or sole negligence
of the Indemnitee; provided, that, such indemnity shall not, as to any Indemnitee, be available to the extent that
such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and
non-appealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee. Without limiting
the provisions of Section 3.01(c), this Section 10.04(b) shall not apply with respect to Taxes other than any Taxes
that represent losses, claims, damages, etc. arising from any non-Tax claim.


 


(c)          Waiver
of Consequential Damages, Etc. To the fullest extent permitted by Law, the Loan Parties shall not assert, and hereby waive,
any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or
any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds
thereof.


 


(d)          Payments.
All amounts due under this Section shall be payable on demand therefor.


 


(e)          Limitation
of Liability. No Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information
or other materials distributed to such unintended recipients by such Indemnitee through telecommunications, electronic or other
information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated
hereby or thereby other than for direct or actual damages resulting from the gross negligence or willful misconduct of such Indemnitee
as determined by a final and non-appealable judgment of a court of competent jurisdiction.


 






    	-116- 



     


    

 


(f)          Survival.
The agreements in this Section shall survive the resignation of any Agent or the Swing Line Lender, the assignment of any Commitment
or Loan by any Lender, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction
or discharge of all the other Obligations.


 


10.05.       Payments
Set Aside. To the extent that any payment by or on behalf of the Loan Parties is made to any Credit Party, or any Credit Party
exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated,
declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by such Credit
Party in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor
Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied
shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred,
and (b) each Lender severally agrees to pay to the Agent upon demand its Applicable Percentage (without duplication) of any amount
so recovered from or repaid by the Agent, plus interest thereon from the date of such demand to the date such payment is made
at a rate per annum equal to the Federal Funds Rate from time to time in effect. The obligations of the Lenders under clause (b)
of the preceding sentence shall survive the payment in full of the Obligations and the termination of this Agreement.


 


10.06.      Successors
and Assigns.


 


(a)          Successors
and Assigns Generally. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby, except that no Loan Party may assign or otherwise transfer any of
its rights or obligations hereunder or under any other Loan Document without the prior written Consent of the Agent and each Lender
and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an Eligible Assignee in
accordance with the provisions of Section 10.06(b), (ii) by way of participation in accordance with the provisions of subsection
Section 10.06(d), or (iii) by way of pledge or assignment of a security interest subject to the restrictions of Section
10.06(h) (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors
and assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section and, to the extent expressly
contemplated hereby, the Related Parties of each of the Credit Parties) any legal or equitable right, remedy or claim under or
by reason of this Agreement.


 


(b)          Assignments
by Lenders. Any Lender may at any time assign to one or more Eligible Assignees all or a portion of its rights and obligations
under this Agreement (including all or a portion of its Commitment(s) and the Loans (including for purposes of this Section
10.06(b), participations in Swing Line Loans) at the time owing to it; provided, that, any such assignment shall
be subject to the following conditions:


 






    	-117- 



     


    

 


(i)          Minimum
Amounts.


 


		(A)	in
                                         the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment
                                         and the Loans at the time owing to it or in the case of an assignment to a Lender or
                                         an Affiliate of a Lender or an Approved Fund with respect to a Lender, no minimum amount
                                         need be assigned; and



 


		(B)	in
                                         any case not described in subsection (b)(i)(A) of this Section, the aggregate amount
                                         of the Commitment (which for this purpose includes Loans outstanding thereunder) or,
                                         if the Commitment is not then in effect, the principal outstanding balance of the Loans
                                         of the assigning Lender subject to each such assignment, determined as of the date the
                                         Assignment and Assumption with respect to such assignment is delivered to the Agent or,
                                         if “Trade Date” is specified in the Assignment and Assumption, as of the
                                         Trade Date, shall not be less than $10,000,000 unless each of the Agent and, so long
                                         as no Default or Event of Default has occurred and is continuing, the Lead Borrower otherwise
                                         consents (each such consent not to be unreasonably withheld or delayed); provided,
                                         however, that concurrent assignments to members of an Assignee Group and concurrent
                                         assignments from members of an Assignee Group to a single Eligible Assignee (or to an
                                         Eligible Assignee and members of its Assignee Group) will be treated as a single assignment
                                         for purposes of determining whether such minimum amount has been met;



 


		(C)	Proportionate
                                         Amounts. 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 with respect
                                         to the Loans or the Commitment assigned, except that this clause (ii) shall not apply
                                         to the Swing Line Lender’s rights and obligations in respect of Swing Line Loans;



 


		(D)	Required
                                         Consents. No consent shall be required for any assignment except to the extent required
                                         by subsection (b)(i)(B) of this Section and, in addition:



 


		(1)	the
                                         consent of the Lead Borrower (such consent not to be unreasonably withheld or delayed)
                                         shall be required unless (1) a Default or Event of Default has occurred and is continuing
                                         at the time of such assignment or (2) such assignment is to a Lender, an Affiliate of
                                         a Lender or an Approved Fund with respect to such Lender; and



 






    	-118- 



     


    

 


		(2)	the
                                         consent of the Agent, shall be required for assignments in respect of any Commitment
                                         if such assignment is to a Person that is not a Lender, an Affiliate of such Lender or
                                         an Approved Fund with respect to such Lender; provided that the Agent’s refusal
                                         to accept a sale to a holder of obligations under the Term Loan Agreement or an Affiliate
                                         of such a holder, or the imposition of conditions or limitations (including limitations
                                         on voting) upon sales to such Persons, shall not be deemed to be unreasonable; and



 


		(E)	Assignment
                                         and Assumption. The parties to each assignment shall execute and deliver to the Agent
                                         an Assignment and Assumption, together with a processing and recordation fee of $3,500,
                                         provided, however, that the Agent may, in its sole discretion, elect to
                                         waive such processing and recordation fee in the case of any assignment. The assignee,
                                         if it shall not be a Lender, shall deliver to the Agent an Administrative Questionnaire.



 


		(F)	No
                                         Assignment to Certain Persons. No such assignment shall be made (A) to the Loan Parties
                                         or any of the Loan Parties’ Subsidiaries, (B) to any Defaulting Lender or any of
                                         its Subsidiaries or Affiliates, or any Person who, upon becoming a Lender hereunder,
                                         would constitute any of the foregoing Persons described in this clause (B), or (C) to
                                         a natural Person.



 


		(G)	Certain
                                         Additional Payments. In connection with any assignment of rights and obligations
                                         of any Defaulting Lender hereunder, no such assignment shall be effective unless and
                                         until, in addition to the other conditions thereto set forth herein, the parties to the
                                         assignment shall make such additional payments to the Agent in an aggregate amount sufficient,
                                         upon distribution thereof as appropriate (which may be outright payment, purchases by
                                         the assignee of participations or sub-participations, or other compensating actions,
                                         including funding, with the consent of the Lead Borrower and the Agent, the applicable
                                         pro rata share of Loans previously requested but not funded by the Defaulting Lender,
                                         to each of which the applicable assignee and assignor hereby irrevocably consent), to
                                         (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender
                                         to the Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and
                                         fund as appropriate) its full pro rata share of all Loans and participations in Swing
                                         Line Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing,
                                         in the event that any assignment of rights and obligations of any Defaulting Lender hereunder
                                         shall become effective under applicable Law without compliance with the provisions of
                                         this paragraph, then the assignee of such interest shall be deemed to be a Defaulting
                                         Lender for all purposes of this Agreement until such compliance occurs.



 






    	-119- 



     


    

 


Subject
to acceptance and recording thereof by the Agent pursuant to subsection (c) of this Section, from and after the effective date
specified in each Assignment and Assumption, the Eligible Assignee thereunder shall be a party to this Agreement and, to the extent
of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released
from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to
the benefits of Sections 3.01, 3.04, 3.05, and 10.04 with respect to facts and circumstances occurring
prior to the effective date of such assignment; provided, that, except to the extent otherwise expressly agreed
by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder
arising from that Lender’s having been a Defaulting Lender. Upon request, the Borrowers (at their expense) shall execute
and deliver a promissory note to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a sale by such Lender of
a participation in such rights and obligations in accordance with Section 10.06(d).


 


(c)          Register.
The Agent, acting solely for this purpose as an agent of the Borrowers (and such agency being solely for tax purposes), shall
maintain at the Agent’s Office a copy of each Assignment and Assumption delivered to it (or the equivalent thereof in electronic
form) and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts
(and stated interest) of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”).
The entries in the Register shall be conclusive, absent manifest error, and the Loan Parties, the Agent and the Lenders may treat
each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Lead Borrower and any
Lender at any reasonable time and from time to time upon reasonable prior notice.


 


(d)          Participations.
Any Lender may at any time, with notice to and the consent of the Agent, sell participations to any Person (other than a natural
person or the Loan Parties or any of the Loan Parties’ Affiliates or Subsidiaries) (each, a “Participant”)
in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment
and/or the Loans (including such Lender’s participations in Swing Line Loans) owing to it); provided, that,
(i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible
to the other parties hereto for the performance of such obligations and (iii) the Loan Parties, the Agent and the Lenders
shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this
Agreement. Any Participant shall agree in writing to comply with all confidentiality obligations set forth in Section 10.07
as if such Participant was a Lender hereunder.


 






    	-120- 



     


    

 


(e)          Any
agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the
sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement;
provided, that, such agreement or instrument may provide that such Lender will not, without the consent of the Participant,
agree to any amendment, waiver or other modification described in clauses (i) through (iv) of the first proviso to Section
10.01 that affects such Participant. Subject to subsection (g) of this Section, the Loan Parties agree that each Participant
shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender
and had acquired its interest by assignment pursuant to Section 10.06(b). To the extent permitted by law, each Participant
also shall be entitled to the benefits of Section 10.08 as though it were a Lender, provided such Participant agrees to
be subject to Section 2.02 as though it were a Lender.


 


(f)          Each
Lender that sells a participation shall, acting solely for this purpose as an agent of the Borrowers, maintain a register on which
it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s
interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided,
that, no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity
of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its
other obligations under any 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.


 


(g)          Limitations
upon Participant Rights. A Participant shall not be entitled to receive any greater payment under Section 3.01 or 3.04
than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the Lead Borrower’s prior written consent. A Participant
that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 3.01 unless the
Lead Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Loan
Parties, to comply with Section 3.01(e) as though it were a Lender.


 


(h)          Certain
Pledges. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement
(including under its promissory note, if any) to secure obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank; provided, that, no such pledge or assignment shall release such Lender from
any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.


 






    	-121- 



     


    

 


(i)          Resignation
as Swing Line Lender after Assignment or Resignation. Notwithstanding anything to the contrary contained herein, if at any
time Encina Business Credit, LLC resigns as Agent in accordance with the provisions of Section 9.06, Encina Business Credit
SPV, LLC may, (i) upon 30 days’ notice to the Lead Borrower and the Lenders,
resign as Swing Line Lender. In the event of any such resignation as Swing Line Lender, the Lead Borrower shall be entitled to
appoint from among the Lenders a successor Swing Line Lender hereunder; provided, however, that no failure by the
Lead Borrower to appoint any such successor shall affect the resignation of Encina Business Credit
SPV, LLC as Swing Line Lender. If Encina Business Credit
SPV, LLC resigns as Swing Line Lender, it shall retain all the rights of the Swing
Line Lender provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the effective date of such
resignation. Upon the appointment of any successor Swing Line Lender, (a) such successor shall succeed to and become vested with
all of the rights, powers, privileges and duties of the retiring Swing Line Lender and (b) the successor Swing Line Lender shall
repay all outstanding Obligations with respect to Swing Line Loans due to the resigning Swing Line Lender.


 


10.07.      Treatment
of Certain Information; Confidentiality. Each of the Credit Parties agrees to maintain the confidentiality of the Information
(as defined below), except that Information may be disclosed (a) to its Affiliates, Approved Funds, and to its and its Affiliates’
and Approved Funds’ respective partners, directors, officers, employees, agents, funding sources, attorneys, advisors and
representatives (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature
of such Information and instructed to keep such Information confidential), (b) to the extent requested by any regulatory authority
purporting to have jurisdiction over it (including any self-regulatory authority), (c) to the extent required by Laws or regulations
or by any subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any remedies
hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or
the enforcement of rights hereunder or thereunder, (f) subject to an agreement (including any electronic agreement contained in
any Platform) containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant in,
or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement or (ii) any actual or
prospective counterparty (or its advisors) to any Swap Contract relating to any Loan Party and its obligations, (g) with the consent
of the Lead Borrower or (h) to the extent such Information (i) becomes publicly available other than as a result of a breach of
this Section or (ii) becomes available to any Credit Party or any of their respective Affiliates on a non-confidential basis from
a source other than the Loan Parties.


 


For
purposes of this Section, “Information” means all information received from the Loan Parties or any Subsidiary thereof
relating to the Loan Parties or any Subsidiary thereof or their respective businesses, other than any such information that is
available to any Credit Party on a non-confidential basis prior to disclosure by the Loan Parties or any Subsidiary thereof; provided,
that, in the case of information received from any Loan Party or any Subsidiary after the Closing Date, such information
is clearly identified at the time of delivery as confidential. Any Person required to maintain the confidentiality of Information
as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.


 






    	-122- 



     


    

 


Each
of the Credit Parties acknowledges that (a) the Information may include material non-public information concerning the Loan Parties
or a Subsidiary, as the case may be, (b) it has developed compliance procedures regarding the use of material non-public information
and (c) it will handle such material non-public information in accordance with Law, including Federal and state securities Laws.


 


10.08.      Right
of Setoff. If an Event of Default shall have occurred and be continuing or if any Lender shall have been served with a trustee
process or similar attachment relating to property of a Loan Party, each Lender and each of their respective Affiliates is hereby
authorized at any time and from time to time, after obtaining the prior written consent of the Agent or the Required Lenders,
to the fullest extent permitted by Law, to set off and apply any and all deposits (general or special, time or demand, provisional
or final, in whatever currency) or other property at any time held and other obligations (in whatever currency) at any time owing
by such Lender or any such Affiliate to or for the credit or the account of the Borrowers or any other Loan Party against any
and all of the Obligations now or hereafter existing under this Agreement or any other Loan Document to such Lender, regardless
of the adequacy of the Collateral, and irrespective of whether or not such Lender shall have made any demand under this Agreement
or any other Loan Document and although such obligations of the Borrowers or such Loan Party may be contingent or unmatured or
are owed to a branch or office of such Lender different from the branch or office holding such deposit or obligated on such indebtedness;
provided, that, in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts
so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of Section
2.14 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust
for the benefit of the Agent and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Agent a statement describing
in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The rights
of each Lender and their respective Affiliates under this Section are in addition to other rights and remedies (including other
rights of setoff) that such Lender or their respective Affiliates may have. Each Lender agrees to notify the Lead Borrower and
the Agent promptly after any such setoff and application; provided, that, the failure to give such notice shall
not affect the validity of such setoff and application.


 


10.09.      Interest
Rate Limitation. Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be
paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by Law (the “Maximum
Rate”). If the Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest
shall be applied to the principal of the Loans and other Obligations (other than Other Liabilities not then due and owing) or,
if it exceeds such unpaid principal, refunded to the Borrowers. In determining whether the interest contracted for, charged, or
received by the Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by Law, (a) characterize
any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the
effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout
the contemplated term of the Obligations hereunder.


 






    	-123- 



     


    

 


10.10.      Counterparts;
Integration; Effectiveness. This Agreement may be executed in counterparts (and by different parties hereto in different counterparts),
each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement
and the other Loan Documents constitute the entire contract among the parties relating to the subject matter hereof and supersede
any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Except as provided
in Section 4.01, this Agreement shall become effective when it shall have been executed by the Agent and when the Agent
shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Delivery
of an executed counterpart of a signature page of this Agreement by telecopy, pdf or other electronic transmission shall be as
effective as delivery of a manually executed counterpart of this Agreement.


 


10.11.      Survival.
All representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or
thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof. Such representations
and warranties have been or will be relied upon by the Credit Parties, regardless of any investigation made by any Credit Party
or on their behalf and notwithstanding that any Credit Party may have had notice or knowledge of any Default or Event of Default
at the time of any Credit Extension, and shall continue in full force and effect as long as any Loan or any other Obligation hereunder
shall remain unpaid or unsatisfied. Further, the provisions of Sections 3.01, 3.04, 3.05 and 10.04
and Article IX shall survive and remain in full force and effect regardless of the repayment of the Obligations or the
termination of the Commitments or the termination of this Agreement or any provision hereof. In connection with the termination
of this Agreement and the release and termination of the security interests in the Collateral, the Agent may require such indemnities
and collateral security as it shall reasonably deem necessary or appropriate to protect the Credit Parties against (x) loss on
account of credits previously applied to the Obligations that may subsequently be reversed or revoked, (y) any obligations that
may thereafter arise with respect to the Other Liabilities, and (z) any Obligations that may thereafter arise under Section
10.04 hereof.


 


10.12.      Severability.
If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality,
validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or
impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable
provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable
provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision
in any other jurisdiction. Without limiting the foregoing provisions of this Section 10.12, if and to the extent that the
enforceability of any provisions in this Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined
in good faith by the Agent or the Swing Line Lender, as applicable, then such provisions shall be deemed to be in effect only
to the extent not so limited.


 






    	-124- 



     


    

 


10.13.      Replacement
of Lenders. If any Lender requests compensation under Section 3.04, or if the Borrowers are required to pay any additional
amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, or if any Lender
is a Defaulting Lender or a Non-Consenting Lender, then the Borrowers may, at their sole expense and effort, upon notice to such
Lender and the Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions
contained in, and consents required by, Section 10.06), all of its interests, rights (other than its existing rights to
payments pursuant to Section 3.01 and 3.04) and obligations under this Agreement and the related Loan Documents
to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment);
provided, that,:


 


(a)          the
Borrowers shall have paid to the Agent the assignment fee specified in Section 10.06(b);


 


(b)          such
Lender shall have received payment of an amount equal to the outstanding principal of its Loans, accrued interest thereon, accrued
fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section
3.05) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrowers (in the
case of all other amounts);


 


(c)          in
the case of any such assignment resulting from a claim for compensation under Section 3.04 or payments required to be made
pursuant to Section 3.01, such assignment will result in a reduction in such compensation or payments thereafter; and


 


(d)          such
assignment does not conflict with Laws; and


 


(e)          in
the case of an assignment resulting from a Lender becoming a Non-Consenting Lender, the applicable assignee shall have consented
to the applicable amendment, waiver or consent.


 


A
Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender
or otherwise, the circumstances entitling the Borrowers to require such assignment and delegation cease to apply.


 


10.14.      Governing
Law; Jurisdiction; Etc.


 


(a)          GOVERNING
LAW. This Agreement and the other Loan Documents and any claims, controversy, dispute or cause of action (whether in contract
or tort or otherwise) based upon, arising out of or relating to this Agreement or any other Loan Document (except, as to any other
Loan Document, as expressly set forth therein) and the transactions contemplated hereby and thereby shall be governed by, and
construed in accordance with, the law of the State of Illinois.


 






    	-125- 



     


    

 


(b)          SUBMISSION
TO JURISDICTION. EACH LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY agrees that it will not commence any action, litigation or
proceeding of any kind or description, whether in law or equity, whether in contract or in tort or otherwise, against the Agent,
any Lender or any Related Party of the foregoing in any way relating to this Agreement or any other Loan Document or the transactions
relating hereto or thereto, in any forum other than THE COURTS OF THE STATE OF ILLINOIS LOCATED IN THE CITY OF CHICAGO AND OF
THE UNITED STATES DISTRICT COURT OF THE NORTHERN DISTRICT OF ILLINOIS, AND ANY APPELLATE COURT FROM ANY THEREOF, AND EACH OF THE
PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE JURISDICTION OF SUCH COURTS AND AGREES THAT ALL CLAIMS IN RESPECT
OF ANY SUCH ACTION, LITIGATION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH ILLINOIS STATE COURT OR, TO THE FULLEST EXTENT
PERMITTED BY LAW, IN SUCH FEDERAL COURT. EACH OF THE LOAN PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION, LITIGATION
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 IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT ANY CREDIT PARTY 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.


 


(c)          WAIVER
OF VENUE. EACH LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION THAT
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE LOAN PARTIES HERETO HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING
IN ANY SUCH COURT.


 


(d)          SERVICE
OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR WITH RESPECT TO NOTICES
IN SECTION 10.02. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW.


 


10.15.      Waiver
of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.


 






    	-126- 



     


    

 


10.16.      No
Advisory or Fiduciary Responsibility. In connection with all aspects of each transaction contemplated hereby, the Loan Parties
each acknowledge and agree that: (i) the credit facility provided for hereunder and any related arranging or other services in
connection therewith (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document)
are an arm’s-length commercial transaction between the Loan Parties, on the one hand, and the Credit Parties, on the other
hand, and each of the Loan Parties is capable of evaluating and understanding and understands and accepts the terms, risks and
conditions of the transactions contemplated hereby and by the other Loan Documents (including any amendment, waiver or other modification
hereof or thereof); (ii) in connection with the process leading to such transaction, each Credit Party is and has been acting
solely as a principal and is not the financial advisor, agent or fiduciary, for the Loan Parties or any of their respective Affiliates,
stockholders, creditors or employees or any other Person; (iii) none of the Credit Parties has assumed or will assume an advisory,
agency or fiduciary responsibility in favor of the Loan Parties with respect to any of the transactions contemplated hereby or
the process leading thereto, including with respect to any amendment, waiver or other modification hereof or of any other Loan
Document (irrespective of whether any of the Credit Parties has advised or is currently advising any Loan Party or any of its
Affiliates on other matters) and none of the Credit Parties has any obligation to any Loan Party or any of its Affiliates with
respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents;
(iv) the Credit Parties and their respective Affiliates may be engaged in a broad range of transactions that involve interests
that differ from those of the Loan Parties and their respective Affiliates, and none of the Credit Parties has any obligation
to disclose any of such interests by virtue of any advisory, agency or fiduciary relationship; and (v) the Credit Parties have
not provided and will not provide any legal, accounting, regulatory or tax advice with respect to any of the transactions contemplated
hereby (including any amendment, waiver or other modification hereof or of any other Loan Document) and each of the Loan Parties
has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate. Each of the Loan
Parties hereby waives and releases, to the fullest extent permitted by law, any claims that it may have against each of the Credit
Parties with respect to any breach or alleged breach of agency or fiduciary duty.


 


10.17.      USA
PATRIOT Act Notice. Each Lender that is subject to the Act (as hereinafter defined) and the Agent (for itself and not on behalf
of any Lender) hereby notifies the Loan Parties that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001)) (the “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 or the Agent, as applicable, to identify each Loan Party in accordance with the Act. Each Loan Party is
in compliance, in all material respects, with the Patriot Act. No part of the proceeds of the Loans will be used by the Loan Parties,
directly or indirectly, for any payments to any governmental official or employee, political party, official of a political party,
candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or
obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as amended. The Loan Parties
shall, promptly following a request by the Agent or any Lender, provide all documentation and other information that the Agent
or such Lender requests in order to comply with its ongoing obligations under applicable “know your customer” and
anti-money laundering rules and regulations, including the Act.


 






    	-127- 



     


    

 


10.18.      Foreign
Asset Control Regulations. Neither of the advance of the Loans nor the use of the proceeds of any thereof will violate the
Trading With the Enemy Act (50 U.S.C. § 1 et seq., as amended) (the “Trading With the Enemy Act”) or any
of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended)
(the “Foreign Assets Control Regulations”) or any enabling legislation or executive order relating thereto
(which for the avoidance of doubt shall include, but shall not be limited to (a) Executive Order 13224 of September 21, 2001 Blocking
Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001))
(the “Executive Order”) and (b) the Uniting and Strengthening America by Providing Appropriate Tools Required
to Intercept and Obstruct Terrorism Act of 2001 (Public Law 107-56)). Furthermore, none of the Borrowers or their Affiliates (a)
is or will become a “blocked person” as described in the Executive Order, the Trading With the Enemy Act or the Foreign
Assets Control Regulations or (b) engages or will engage in any dealings or transactions, or be otherwise associated, with any
such “blocked person” or in any manner violative of any such order.


 


10.19.      Time
of the Essence. Time is of the essence of the Loan Documents.


 


10.20.      Press
Releases.  Each Loan Party consents to the publication by the Agent or any Lender of advertising material relating to
the financing transactions contemplated by this Agreement using any Loan Party’s name, product photographs, logo or trademark.
The Agent or such Lender shall provide a draft reasonably in advance of any advertising material to the Lead Borrower prior to
the publication thereof. The Agent reserves the right to provide to industry trade organizations information necessary and customary
for inclusion in league table measurements.


 


10.21.      Additional
Waivers.


 


(a)          The
Obligations are the joint and several obligation of each Loan Party. To the fullest extent permitted by Law, the obligations of
each Loan Party shall not be affected by (i) the failure of any Credit Party to assert any claim or demand or to enforce
or exercise any right or remedy against any other Loan Party under the provisions of this Agreement, any other Loan Document or
otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions
of, this Agreement or any other Loan Document, (iii) the failure to perfect any security interest in, or the release of,
any of the Collateral or other security held by or on behalf of the Agent or any other Credit Party, or (iv) any default, failure
or delay, willful or otherwise, in the performance of any of the Obligations, or by any other act or omission that may or might
in any manner or to any extent vary the risk of any Loan Party or that would otherwise operate as a discharge of any Loan Party
as a matter of law or equity (other than the indefeasible payment in full in cash of all the Obligations after the termination
of the Commitments). The obligations of each Loan Party shall not be subject to any reduction, limitation, impairment or termination
for any reason (other than the indefeasible payment in full in cash of the Obligations after the termination of the Commitments),
including any claim of waiver, release, surrender, alteration or compromise of any of the Obligations, and shall not be subject
to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability
of any of the Obligations or otherwise.


 






    	-128- 



     


    

 


(b)          To
the fullest extent permitted by Law, each Loan Party waives any defense based on or arising out of any defense of any other Loan
Party or the unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability
of any other Loan Party, other than the indefeasible payment in full in cash of all the Obligations and the termination of the
Commitments. The Agent and the other Credit Parties may, at their election, foreclose on any security held by one or more of them
by one or more judicial or non-judicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or
adjust any part of the Obligations, make any other accommodation with any other Loan Party, or exercise any other right or remedy
available to them against any other Loan Party, without affecting or impairing in any way the liability of any Loan Party hereunder
except to the extent that all of the Obligations have been indefeasibly paid in full in cash and the Commitments have been terminated.
Each Loan Party waives any defense arising out of any such election even though such election operates, pursuant to Law, to impair
or to extinguish any right of reimbursement or subrogation or other right or remedy of such Loan Party against any other Loan
Party.


 


(c)          Upon
payment by any Loan Party of any Obligations, all rights of such Loan Party against any other Loan Party arising as a result thereof
by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subordinate and junior
in right of payment to the prior indefeasible payment in full in cash of all of the Obligations and the termination of the Commitments.
In addition, any indebtedness of any Loan Party now or hereafter held by any other Loan Party is hereby subordinated in right
of payment to the prior indefeasible payment in full of the Obligations and no Loan Party will demand, sue for or otherwise attempt
to collect any such indebtedness. If any amount shall erroneously be paid to any Loan Party on account of (i) such subrogation,
contribution, reimbursement, indemnity or similar right or (ii) any such indebtedness of any Loan Party, such amount shall be
held in trust for the benefit of the Credit Parties and shall forthwith be paid to the Agent to be credited against the payment
of the Obligations, whether matured or unmatured, in accordance with the terms of this Agreement and the other Loan Documents.
Subject to the foregoing, to the extent that any Borrower shall, under this Agreement as a joint and several obligor, repay any
of the Obligations constituting Loans made to another Borrower hereunder or other Obligations incurred directly and primarily
by any other Borrower (an “Accommodation Payment”), then the Borrower making such Accommodation Payment shall
be entitled to contribution and indemnification from, and be reimbursed by, each of the other Borrowers in an amount, for each
of such other Borrowers, equal to a fraction of such Accommodation Payment, the numerator of which fraction is such other Borrower’s
Allocable Amount and the denominator of which is the sum of the Allocable Amounts of all of the Borrowers. As of any date of determination,
the “Allocable Amount” of each Borrower shall be equal to the maximum amount of liability for Accommodation
Payments which could be asserted against such Borrower hereunder without (a) rendering such Borrower “insolvent”
within the meaning of Section 101 (32) of the Bankruptcy Code, Section 2 of the Uniform Fraudulent Transfer Act (“UFTA”)
or Section 2 of the Uniform Fraudulent Conveyance Act (“UFCA”), (b) leaving such Borrower with unreasonably
small capital or assets, within the meaning of Section 548 of the Bankruptcy Code, Section 4 of the UFTA, or Section 5 of the
UFCA, or (c) leaving such Borrower unable to pay its debts as they become due within the meaning of Section 548 of the Bankruptcy
Code or Section 4 of the UFTA, or Section 5 of the UFCA.


 






    	-129- 



     


    

 


10.22.      No
Strict Construction. The parties hereto have participated jointly in the negotiation and drafting of this Agreement. In the
event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by
the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship
of any provisions of this Agreement.


 


10.23.      Attachments.
The exhibits, schedules and annexes attached to this Agreement are incorporated herein and shall be considered a part of this
Agreement for the purposes stated herein, except that in the event of any conflict between any of the provisions of such exhibits
and the provisions of this Agreement, the provisions of this Agreement shall prevail.


 


10.24.      Electronic
Execution of Assignments and Certain Other Documents. The words “execute,” “execution,” “signed,”
“signature,” and words of like import in any Assignment and Assumption or in any amendment or other modification hereof
(including waivers and consents) shall be deemed to include electronic signatures, the electronic matching of assignment terms
and contract formations on electronic platforms approved by the Agent, or the keeping of records in electronic form, each of which
shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping
system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures
in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws
based on the Uniform Electronic Transactions Act.


 


10.25.      ENTIRE
AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED
BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG
THE PARTIES.


 


10.26.      Keepwell.
Each Loan Party that is a Qualified ECP Guarantor at the time the Security Agreement or the grant of a security interest under
the Loan Documents, in each case, by any Specified Loan Party becomes effective with respect to any Swap Obligation, hereby jointly
and severally, absolutely, unconditionally and irrevocably undertakes to provide such funds or other support to each Specified
Loan Party with respect to such Swap Obligation as may be needed by such Specified Loan Party from time to time to honor all of
its obligations under the Loan Documents in respect of such Swap Obligation (but, in each case, only up to the maximum amount
of such liability that can be hereby incurred without rendering such Qualified ECP Guarantor’s obligations and undertakings
under the Security Agreement voidable under applicable Law relating to fraudulent conveyance or fraudulent transfer, and not for
any greater amount). The obligations and undertakings of each Qualified ECP Guarantor under this Section shall remain in full
force and effect until Payment in Full of the Obligations have been indefeasibly paid and performed in full. Each Loan Party intends
this Section to constitute, and this Section shall be deemed to constitute, a guarantee of the obligations of, and a “keepwell,
support, or other agreement” for the benefit of, each Specified Loan Party for all purposes of the Commodity Exchange Act.


 






    	-130- 



     


    

 


10.27.      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.


 


10.28.      Intercreditor
Agreement. EACH LENDER HEREUNDER (I) ACKNOWLEDGES THAT IT HAS RECEIVED A COPY OF THE INTERCREDITOR AGREEMENT, (II) CONSENTS
TO THE SUBORDINATION OF LIENS PROVIDED FOR IN THE INTERCREDITOR AGREEMENT, (III) AGREES THAT IT WILL BE BOUND BY AND WILL TAKE
NO ACTIONS CONTRARY TO THE PROVISIONS OF THE INTERCREDITOR AGREEMENT AND (IV) AUTHORIZES AND INSTRUCTS THE AGENT TO ENTER INTO
THE INTERCREDITOR AGREEMENT AND ANY AMENDMENTS THERETO REQUIRED BY THE TERMS THEREOF AS AGENT AND ON BEHALF OF SUCH LENDER. THE
FOREGOING PROVISIONS ARE INTENDED AS AN INDUCEMENT TO THE LENDERS AND THE TERM LOAN LENDERS TO EXTEND CREDIT TO THE BORROWERS
AND SUCH LENDERS ARE INTENDED THIRD PARTY BENEFICIARIES OF SUCH PROVISIONS. TO THE EXTENT OF ANY CONFLICT OR INCONSISTENCY BETWEEN
THE TERMS AND PROVISIONS OF THIS AGREEMENT AND THE INTERCREDITOR AGREEMENT, THE INTERCREDITOR AGREEMENT SHALL GOVERN.


 


[Signature
pages follow.]


 




    	-131- 



     


    

 


IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers
as of the date first above written.


 


Lead
Borrower:


 


VERTEX
ENERGY OPERATING, LLC


 











	By:	/s/ Benjamin P. Cowart	 
	 	      Name:  	Benjamin P. Cowart	 
	 	      Its:	 	 










 





	Additional Borrowers:	 	 	 
		 	
	BANGO
    OIL LLC	 	VERTEX RECOVERY MANAGEMENT LA,
    LLC 
	 	 	 
	By:	/s/ Benjamin P. Cowart 	 	By:	/s/ Benjamin P. Cowart
	 	      Name:	 	 	 	      Name:	 
	 	      Its:	 	 	 	 	      Its:	 	 





 





	VERTEX
    REFINING NV, LLC	 	VERTEX REFINING LA, LLC
	 	 	 
	By:	/s/ Benjamin P. Cowart	 	By:	/s/ Benjamin P. Cowart
	 	      Name:	 	 	 	      Name:	 
	 	      Its:	 	 	 	 	      Its:	 	 


 





	VERTEX REFINING OH, LLC	 	VERTEX II GP, LLC
	 	 	 
	By:	/s/ Benjamin P. Cowart	 	By:	/s/ Benjamin P. Cowart
	 	      Name:	 	 	 	      Name:	 
	 	      Its:	 	 	 	 	      Its:	 	 


 








	VERTEX
    MERGER SUB, LLC	 	VERTEX ACQUISITION SUB, LLC 
	 	 	 
	By:	/s/ Benjamin P. Cowart	 	By:	/s/ Benjamin P. Cowart
	 	      Name:	 	 	 	      Name:	 
	 	      Its:	 	 	 	 	      Its:	 	 


  






    	-1- 



     


    




 


 


	CEDAR MARINE TERMINALS, LP	 	CROSSROAD CARRIERS, L.P.
	 	 	 
	By:	/s/ Benjamin P. Cowart	 	By:	/s/ Benjamin P. Cowart
	 	      Name:	Benjamin P. Cowart	 	 	      Name:	 
	 	      Its:	 	 	 	 	      Its:	 	 










	VERTEX RECOVERY, L.P.	 	H&H OIL, L.P.
	 	 	 
	By:	/s/ Benjamin P. Cowart	 	By:	/s/ Benjamin P. Cowart
	 	      Name:	 	 	 	      Name:	 
	 	      Its:	 	 	 	 	      Its:	 	 


 





	GOLDEN STATE LUBRICANTS
        WORKS, LLC	 	VERTEX RECOVERY MANAGEMENT,
        LLC
	 	 	 
	By:	/s/ Benjamin P. Cowart	 	By:	/s/ Benjamin P. Cowart
	 	      Name:	 	 	 	      Name:	 
	 	      Its:	 	 	 	 	      Its:	 	 


 








	 	 	 	 	 	 	 
	 	VERTEX ENERGY, INC., as Parent and as a Guarantor
	 	 	 	 	 	 	 
	 	 	By:	/s/ Benjamin P. Cowart
	 	 	Name:	 	 
	 	 	Title:	 	 	 







  




    	-2- 



     


    

 





	 	 	 	 	 	 	 
	 	ENCINA BUSINESS
CREDIT, LLC, as Agent
	 	 	 	 	 	 	 
	 	 	By:	/s/ Stephen Beriau
	 	 	Name:	Stephen Beriau
	 	 	Title:	 	MD





 






    	-3- 



     


    

 





	 	 	 	 	 	 	 
	 	ENCINA BUSINESS CREDIT SPV, LLC,
                    as a Lender and Swing Line Lender




	 	 	 	 	 	 	 
	 	 	By:	/s/ Stephen Beriau
	 	 	Name:	Stephen Beriau
	 	 	Title:	 	MD


 



    	-4-