Exhibit 10.1


 


[Execution]


 



 


SECOND AMENDED AND RESTATED 


 


CREDIT AGREEMENT


 


by and among


 


 


 


WELLS FARGO BANK, NATIONAL ASSOCIATION,


 


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


 


THE LENDERS THAT ARE PARTIES HERETO


 


as the Lenders, and 


 


KINERGY MARKETING LLC and


 


PACIFIC AG. PRODUCTS, LLC


 


as Borrowers


 


Dated as of August 2, 2017


 





 



 


 


 


 



    	 	 	 



     


    

 





Table of Contents


 





	 	 	 	Page
	 	 	 	 
	1.	DEFINITIONS AND CONSTRUCTION.	10
	 	 	 
	 	1.1	Definitions	10
	 	 	 	 
	 	1.2	Accounting Terms	50
	 	 	 	 
	 	1.3	Code	51
	 	 	 	 
	 	1.4	Construction	51
	 	 	 	 
	 	1.5	Time References	51
	 	 	 	 
	 	1.6	Schedules and Exhibits	52
	 	 	 	 
	2.	LOANS AND TERMS OF PAYMENT.	52
	 	 	 
	 	2.1	Revolving Loans	52
	 	 	 	 
	 	2.2	[Reserved]	52
	 	 	 	 
	 	2.3	Borrowing Procedures and Settlements	53
	 	 	 	 
	 	2.4	Payments; Reductions of Commitments; Prepayments	59
	 	 	 	 
	 	2.5	Promise to Pay; Promissory Notes	62
	 	 	 	 
	 	2.6	Interest Rates and Letter of Credit Fee:  Rates, Payments, and Calculations	63
	 	 	 	 
	 	2.7	Crediting Payments	64
	 	 	 	 
	 	2.8	Designated Account	64
	 	 	 	 
	 	2.9	Maintenance of Loan Account; Statements of Obligations	64
	 	 	 	 
	 	2.10	Fees	65
	 	 	 	 
	 	2.11	Letters of Credit	65
	 	 	 	 
	 	2.12	Special Provisions Applicable to Daily Three Month LIBOR	73
	 	 	 	 
	 	2.13	Capital Requirements	74
	 	 	 	 
	 	2.14	[Reserved]	75
	 	 	 	 
	 	2.15	Joint and Several Liability of Borrowers	75
	 	 	 	 
	 	2.16	[Reserved]	79



 


 






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	3.	CONDITIONS; TERM OF AGREEMENT.	79
	 	 	 
	 	3.1	Conditions Precedent to the Initial Extension of Credit	79
	 	 	 	 
	 	3.2	Conditions Precedent to all Extensions of Credit	79
	 	 	 	 
	 	3.3	Maturity	79
	 	 	 	 
	 	3.4	Effect of Maturity	79
	 	 	 	 
	 	3.5	Early Termination by Borrowers	79
	 	 	 	 
	4.	REPRESENTATIONS AND WARRANTIES.	80
	 	 	 
	 	4.1	Due Organization and Qualification; Subsidiaries	80
	 	 	 	 
	 	4.2	Due Authorization; No Conflict	81
	 	 	 	 
	 	4.3	Governmental Consents	81
	 	 	 	 
	 	4.4	Binding Obligations; Perfected Liens	81
	 	 	 	 
	 	4.5	Title to Assets; No Encumbrances	82
	 	 	 	 
	 	4.6	Litigation	82
	 	 	 	 
	 	4.7	Compliance with Laws	82
	 	 	 	 
	 	4.8	No Material Adverse Effect	82
	 	 	 	 
	 	4.9	Solvency	82
	 	 	 	 
	 	4.10	Employee Benefits	82
	 	 	 	 
	 	4.11	Environmental Condition	83
	 	 	 	 
	 	4.12	Complete Disclosure	83
	 	 	 	 
	 	4.13	Patriot Act	84
	 	 	 	 
	 	4.14	[Reserved]	84
	 	 	 	 
	 	4.15	Payment of Taxes	84
	 	 	 	 
	 	4.16	Margin Stock	84
	 	 	 	 
	 	4.17	Governmental Regulation	84
	 	 	 	 
	 	4.18	OFAC; Sanctions; Anti-Corruption Laws; Anti-Money Laundering Laws	84
	 	 	 	 
	 	4.19	Employee and Labor Matters	85



 


 






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	 	4.20	[Reserved]	85
	 	 	 	 
	 	4.21	Leases	85
	 	 	 	 
	 	4.22	Eligible Accounts	85
	 	 	 	 
	 	4.23	Eligible Inventory	85
	 	 	 	 
	 	4.24	Location of Inventory	86
	 	 	 	 
	 	4.25	Inventory Records	86
	 	 	 	 
	 	4.26	Hedge Agreements	86
	 	 	 	 
	 	4.27	Material Contracts	86
	 	 	 	 
	5.	AFFIRMATIVE COVENANTS.	86
	 	 	 
	 	5.1	Financial Statements, Reports, Certificates	86
	 	 	 	 
	 	5.2	Reporting	86
	 	 	 	 
	 	5.3	Existence	86
	 	 	 	 
	 	5.4	Maintenance of Properties	87
	 	 	 	 
	 	5.5	Taxes	87
	 	 	 	 
	 	5.6	Insurance	87
	 	 	 	 
	 	5.7	Inspection	87
	 	 	 	 
	 	5.8	Compliance with Laws	88
	 	 	 	 
	 	5.9	Environmental	88
	 	 	 	 
	 	5.10	Disclosure Updates	88
	 	 	 	 
	 	5.11	Formation of Subsidiaries	89
	 	 	 	 
	 	5.12	Further Assurances	89
	 	 	 	 
	 	5.13	[Reserved]	90
	 	 	 	 
	 	5.14	Location of Inventory; Chief Executive Office	90
	 	 	 	 
	 	5.15	OFAC; Sanctions; Anti-Corruption Laws; Anti-Money Laundering Laws	90
	 	 	 	 
	 	5.16	Compliance with ERISA and the IRC.	90



 


 






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	6.	NEGATIVE COVENANTS.	91
	 	 	 
	 	6.1	Indebtedness	91
	 	 	 	 
	 	6.2	Liens	91
	 	 	 	 
	 	6.3	Restrictions on Fundamental Changes	91
	 	 	 	 
	 	6.4	Disposal of Assets	92
	 	 	 	 
	 	6.5	Nature of Business	92
	 	 	 	 
	 	6.6	Prepayments and Amendments	92
	 	 	 	 
	 	6.7	Restricted Payments	92
	 	 	 	 
	 	6.8	Accounting Methods	93
	 	 	 	 
	 	6.9	Investments	93
	 	 	 	 
	 	6.10	Transactions with Affiliates	93
	 	 	 	 
	 	6.11	Use of Proceeds	94
	 	 	 	 
	 	6.12	Limitation on Issuance of Equity Interests	94
	 	 	 	 
	 	6.13	Inventory with Bailees	94
	 	 	 	 
	 	6.14	[Reserved]	94
	 	 	 	 
	 	6.15	[Reserved]	94
	 	 	 	 
	 	6.16	Employee Benefits	94
	 	 	 	 
	7.	FINANCIAL COVENANTS.	95
	 	 	 
	8.	EVENTS OF DEFAULT.	95
	 	 	 
	 	8.1	Payments	95
	 	 	 	 
	 	8.2	Covenants	95
	 	 	 	 
	 	8.3	Judgments	96
	 	 	 	 
	 	8.4	Voluntary Bankruptcy, etc.	96
	 	 	 	 
	 	8.5	Involuntary Bankruptcy, etc.	96
	 	 	 	 
	 	8.6	Default Under Other Agreements	96
	 	 	 	 
	 	8.7	Representations, etc.	97
	 	 	 	 
	 	8.8	Guaranty	97



 


 






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	 	8.9	Security Documents	97
	 	 	 	 
	 	8.10	Loan Documents	97
	 	 	 	 
	 	8.11	Change of Control	97
	 	 	 	 
	 	8.12	ERISA	97
	 	 	 	 
	 	8.13	Material Adverse Effect	98
	 	 	 	 
	9.	RIGHTS AND REMEDIES.	98
	 	 	 
	 	9.1	Rights and Remedies	98
	 	 	 	 
	 	9.2	Remedies Cumulative	98
	 	 	 	 
	 	9.3	Reserved	99
	 	 	 	 
	10.	WAIVERS; INDEMNIFICATION.	99
	 	 	 
	 	10.1	Demand; Protest; etc.	99
	 	 	 	 
	 	10.2	The Lender Group’s Liability for Collateral	99
	 	 	 	 
	 	10.3	Indemnification	99
	 	 	 	 
	11.	NOTICES.	100
	 	 	 
	12.	CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER; JUDICIAL REFERENCE PROVISION.	101
	 	 	 
	13.	ASSIGNMENTS AND PARTICIPATIONS; SUCCESSORS.	104
	 	 	 
	 	13.1	Assignments and Participations	104
	 	 	 	 
	 	13.2	Successors	107
	 	 	 	 
	14.	AMENDMENTS; WAIVERS.	107
	 	 	 
	 	14.1	Amendments and Waivers	108
	 	 	 	 
	 	14.2	Replacement of Certain Lenders	109
	 	 	 	 
	 	14.3	No Waivers; Cumulative Remedies	110
	 	 	 	 
	15.	AGENT; THE LENDER GROUP.	110
	 	 	 
	 	15.1	Appointment and Authorization of Agent	110
	 	 	 	 
	 	15.2	Delegation of Duties	111
	 	 	 	 
	 	15.3	Liability of Agent	111



 


 






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	 	15.4	Reliance by Agent	111
	 	 	 	 
	 	15.5	Notice of Default or Event of Default	112
	 	 	 	 
	 	15.6	Credit Decision	112
	 	 	 	 
	 	15.7	Costs and Expenses; Indemnification	113
	 	 	 	 
	 	15.8	Agent in Individual Capacity	113
	 	 	 	 
	 	15.9	Successor Agent	114
	 	 	 	 
	 	15.10	Lender in Individual Capacity	114
	 	 	 	 
	 	15.11	Collateral Matters	114
	 	 	 	 
	 	15.12	Restrictions on Actions by Lenders; Sharing of Payments	116
	 	 	 	 
	 	15.13	Agency for Perfection	116
	 	 	 	 
	 	15.14	Payments by Agent to the Lenders	117
	 	 	 	 
	 	15.15	Concerning the Collateral and Related Loan Documents	117
	 	 	 	 
	 	15.16	Field Examination Reports; Confidentiality; Disclaimers by Lenders; Other Reports and Information	117
	 	 	 	 
	 	15.17	Several Obligations; No Liability	118
	 	 	 	 
	 	15.18	[Reserved]	118
	 	 	 	 
	16.	WITHHOLDING TAXES.	118
	 	 	 
	 	16.1	Payments	118
	 	 	 	 
	 	16.2	Exemptions	119
	 	 	 	 
	 	16.3	Reductions	120
	 	 	 	 
	 	16.4	Refunds	121
	 	 	 	 
	17.	GENERAL PROVISIONS.	121
	 	 	 
	 	17.1	Effectiveness	121
	 	 	 	 
	 	17.2	Section Headings	121
	 	 	 	 
	 	17.3	Interpretation	121
	 	 	 	 
	 	17.4	Severability of Provisions	122
	 	 	 	 
	 	17.5	Bank Product Provider	122



 


 






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	 	17.6	Debtor-Creditor Relationship	122
	 	 	 	 
	 	17.7	Counterparts; Electronic Execution	123
	 	 	 	 
	 	17.8	Revival and Reinstatement of Obligations; Certain Waivers	123
	 	 	 	 
	 	17.9	Confidentiality	123
	 	 	 	 
	 	17.10	Survival	125
	 	 	 	 
	 	17.11	Patriot Act; Due Diligence	125
	 	 	 	 
	 	17.12	Integration	125
	 	 	 	 
	 	17.13	Kinergy as Agent for Borrowers	126
	 	 	 	 
	 	17.14	Acknowledgement and Consent to Bail-In of EEA Financial Institutions	126
	 	 	 	 
	 	17.15	Amendment and Restatement	127




 


 


 


 


 


 


 


 


 


 






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EXHIBITS AND SCHEDULES


 


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




 


 


 


 


 


 


 


 


 


 






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SECOND AMENDED AND RESTATED CREDIT AGREEMENT


 


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


 


The parties agree as follows:


 


1.               
DEFINITIONS AND CONSTRUCTION.


 


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


 


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


 


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


 


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


 


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


 


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


 


“Additional Payment Conditions”
means, with respect to any cash dividend or distribution by a Borrower to Parent, that (a) the amount of such cash dividend or
distribution does not exceed fifty (50%) percent of Excess Cash Flow (calculated, for the avoidance of doubt, net of all dividends
and distributions) of Borrowers and their Subsidiaries for the trailing twelve (12) month period most recently then ended, as reflected
in unaudited consolidated financial statements for such trailing twelve (12) months of Borrowers and their respective Subsidiaries
required to be delivered under this Agreement (the “TTM Financial Statements”), (b) Agent shall receive no less
than thirty (30) days prior written notice from Administrative Borrower setting forth the intended date and amount of such distribution,
together with the TTM Financial Statements, (c) no Event of Default exists and is continuing or would arise after giving effect
to such dividend or distribution, (d) such dividend or distribution shall be paid with funds legally available therefor, (e) such
dividend or distribution shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which
any Borrower is a party or by which any Borrower or its property are bound, (f) as of the date of such dividend or distribution,
Excess Availability for the thirty (30) consecutive day period immediately prior to the date of any such distribution, calculated
on a pro forma basis as if such dividend or distribution had occurred on each day during such thirty (30) day period, shall not
be less than 10% of the Maximum Revolver Amount, and (g) as of the date of such dividend or distribution and after giving effect
to such distribution, Excess Availability shall be not less than 10% of the Maximum Revolver Amount.


 


 


 






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


 


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


 


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


 


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


 


“Affiliate” means, as applied
to any Person, any other Person who controls, is controlled by, or is under common control with, such Person. For purposes of this
definition, “control” means the possession, directly or indirectly through one or more intermediaries, of the power
to direct the management and policies of a Person, whether through the ownership of Equity Interests, by contract, or otherwise;
provided, that for purposes of the definition of Eligible Accounts and Section 6.10 of this Agreement: (a) any Person
which owns directly or indirectly 10% or more of the Equity Interests having ordinary voting power for the election of directors
or other members of the governing body of a Person or 10% or more of the partnership or other ownership interests of a Person (other
than as a limited partner of such Person) shall be deemed an Affiliate of such Person, (b) each director (or comparable manager)
of a Person shall be deemed to be an Affiliate of such Person, and (c) each partnership in which a Person is a general partner
shall be deemed an Affiliate of such Person.


 


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


 


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


 


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


 


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


 


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


 


 


 






    	 	11	 



     


    

 


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


 


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


 


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


 


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


 


	Level	Average Excess Availability	Applicable Margin
	I	≥ 50% of the Maximum Revolver Amount	1.5 percentage points
	II	< 50% of the Maximum Revolver Amount and ≥ 25% of the Maximum Revolver Amount	1.75 percentage points
	III	< 25% of the Maximum Revolver Amount	2.00 percentage points


 


The Applicable Margin shall be re-determined
as of the first day of each quarter. Notwithstanding anything to the contrary herein, the Applicable Margin shall be the highest
percentage set forth above plus two (2%) percent per annum, at Agent’s option, without notice, (i) either (A) for the
period on and after the date of termination or non-renewal hereof until such time as all Obligations are indefeasibly paid and
satisfied in full in immediately available funds, or (B) for the period from and after the date of the occurrence of any Event
of Default, and for so long as such Event of Default is continuing as determined by Agent and (ii) on the Revolving Loans to Borrowers
at any time outstanding in excess of the Borrowing Base (whether or not such excess(es) arise or are made with or without Agent’s
or any Lender’s knowledge or consent and whether made before or after an Event of Default). The Applicable Margin as of the
Closing Date shall be the Applicable Margin shall be set at the margin in the row styled “Level II”.


 


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


 


 


 






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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


 


 






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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


 


 






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


 


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


 


(a)             
the sum of: 


 


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


 


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


 


(b)  
Reserves.


 


In no event shall the amount determined under
the foregoing clauses (a)(ii)(B) or (a)(ii)(C) include more than $30,000,000 in respect of domestic Eligible In-Transit Inventory
or more than $25,000,000 in respect of corn co-products (including wet-milling by-products and dry-milling byproducts).


 


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


 


“Business Day” means any
day that is not a Saturday, Sunday, or other day on which banks are authorized or required to close in the state of California
or North Carolina, except that, if a determination of a Business Day shall relate to any determination of Daily Three Month LIBOR
Rate, the term “Business Day” also shall exclude any day on which banks are closed for dealings in Dollar deposits
in the London interbank market.


 


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


 


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


 


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


 


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


 


 


 






    	 	15	 



     


    

 


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


 


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


 


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


 


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


 


 


 






    	 	16	 



     


    

 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


 


 






    	 	17	 



     


    

 


“Daily Three Month LIBOR Rate”
means, for any day, the rate per annum for United States dollar deposits determined by Agent for the purpose of calculating the
effective interest rate for loans that reference Daily Three Month LIBOR Rate as the Inter-Bank Market Offered Rate in effect from
time to time for the 3 month delivery of funds in amounts approximately equal to the principal amount of such loans (and, if such
rate is below zero, the Daily Three Month LIBOR Rate shall be deemed to be zero). Borrowers understand and agree that Agent may
base its determination of the Inter-Bank Market Offered Rate upon such offers or other market indicators of the Inter-Bank Market
as Lender in its discretion deems appropriate, including but not limited to the rate offered for U.S. dollar deposits on the London
Inter-Bank Market. When interest is determined hereunder in relation to Daily Three Month LIBOR Rate, each change in the interest
rate hereunder shall become effective each Business Day that Agent determines that Daily Three Month LIBOR Rate has changed.


 


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


 


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


 


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


 


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


 


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


 


 


 






    	 	18	 



     


    

 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


 


 






    	 	19	 



     


    

 


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


 


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


 


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


 


minus


 


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


 


(i)        
extraordinary gains, 


 


(ii)      
interest income, 


 


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


 


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


 


plus


 


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


 


(i)        
non-cash extraordinary losses,


 


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


 


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


 


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


 


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


 


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


 


 


 






    	 	20	 



     


    

 


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


 


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


 


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


 


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


 


(b)            
intentionally omitted;


 


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


 


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


 


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


 


 


 






    	 	21	 



     


    

 


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



 


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


 


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


 


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


 


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


 


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


 


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


 


(m)           
(i) the aggregate amount of such Accounts of the Borrowers owing by a single account
debtor (other than Royal Dutch Shell plc, Idemitsu Apollo Corporation, Maverik, Inc., Valero Energy Corporation, Tesoro Corporation,
ConocoPhillips Company, Chevron Corporation and Vitol, Inc.) do not constitute more than twenty (20%) percent of the aggregate
amount of all otherwise Eligible Accounts, (ii) with respect to any Borrower, the aggregate amount of such Accounts of such Borrower
owing by any of Sinclair, Idemitsu Apollo Corporation, Maverik, Inc. or Vitol, Inc. do not, in each case, constitute more than
twenty-five (25%) percent of the aggregate amount of all otherwise Eligible Accounts, (iii) the aggregate amount of such Accounts
owing by any of Royal Dutch Shell plc, Valero Energy Corporation, Tesoro Corporation, Carne I Corp. or Conoco Phillips do not,
in each case, constitute more than thirty five (35%) percent of the aggregate amount of all otherwise Eligible Accounts, and (iv)
the aggregate amount of such Accounts owing by Chevron Corporation do not constitute more than forty-five (45%) percent of the
aggregate amount of all otherwise Eligible Accounts (but the portion of the Accounts not in excess of the applicable percentages
set forth above may be deemed Eligible Accounts and such applicable percentages may from time to time be increased by Agent in
the exercise of its Permitted Discretion at the request of Borrower, and may from time to time be reduced by Agent in the exercise
of its sole discretion (and, with respect to any such reduction below such initial percentages, in accordance with and subject
to the terms hereof);


 


 


 






    	 	22	 



     


    

 


(n)            
such Accounts are not unpaid more than (i) in the case of Accounts of Pacific Ag,
thirty (30) days after the original due date for such Accounts or ninety (90) days after the date of the original invoice for them,
and (ii) in the case of all other Accounts, thirty (30) days after the original due date for such Accounts or forty-five (45) days
after the date of the original invoice for them;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


 


 






    	 	23	 



     


    

 


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


 


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


 


 


 






    	 	24	 



     


    

 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


 


 






    	 	25	 



     


    

 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Excess Availability” means,
as of any date of determination, the amount equal to Availability minus the sum of (a) the aggregate amount of all
then outstanding and unpaid trade payables and other obligations of Borrowers which are outstanding more than forty-five (45) days
past due as of the end of the immediately preceding month or at Agent’s option, as of a more recent date based on such reports
as Agent may from time to time specify (other than trade payables or other obligations being contested or disputed by Borrowers
in good faith), plus (b) without duplication, the amount of checks issued by Borrowers to pay trade payables and other obligations
which are more than forty-five (45) days past due as of the end of the immediately preceding month or at Agent’s option,
as of a more recent date based on such reports as Agent may from time to time specify (other than trade payables or other obligations
being contested or disputed by Borrowers in good faith), but not yet sent.


 


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


 


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


 


 


 






    	 	26	 



     


    

 


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


 


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


 


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


 


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


 


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


 


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


 


 


 






    	 	27	 



     


    

 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


 


 






    	 	28	 



     


    

 


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


 


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


 


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


 


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


 


“Guarantor” means (a) Parent
as the “Guarantor” under that certain Second Amended and Restated Guarantee dated as of even date herewith, in form
and substance reasonably satisfactory to Agent, executed and delivered by Parent (the “Limited Guaranty”), (b)
any Person that is a "Guarantor" under the Guaranty and Security Agreement, and (c) each other Person that becomes a
guarantor after the Closing Date pursuant to Section 5.11 of this Agreement.


 


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


 


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


 


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


 


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


 


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


 


“Increased Reporting Event”
means if at any time (a) Excess Availability is less than twenty-five percent (25%) of the Maximum Revolver Amount, or (b) a Default
or Event of Default shall have occurred and be continuing.


 


 


 






    	 	29	 



     


    

 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


 


 






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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


 


 






    	 	31	 



     


    

 


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


 


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


 


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


 


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


 


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


 


 


 






    	 	32	 



     


    

 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


 


 






    	 	33	 



     


    

 


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


 


“Loan Party” means any
Borrower or any Guarantor; provided that, except as expressly provided herein to the contrary, the term Loan Party shall exclude
the Parent.


 


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


 


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


 


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


 


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


 


“Maturity Date” means August
2, 2022.


 


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


 


 


 






    	 	34	 



     


    

 


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


 


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


 


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


 


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


 


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


 


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


 


 


 






    	 	35	 



     


    

 


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


 


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


 


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


 


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


 


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


 


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


 


 


 






    	 	36	 



     


    

 


“Pacific Ethanol Affiliates”
mean, collectively, (a) Pacific Ethanol Central, LLC (f/k/a PE AVR Holdings, Inc. f/k/a Aventine Renewal Energy Holdings, Inc.),
(b) Pacific Ethanol Aurora West, LLC (f/k/a Aventine Renewable Energy – Aurora West, LLC), (c) Pacific Ethanol Pekin, LLC
(f/k/a Pacific Ethanol Pekin, Inc. f/k/a Aventine Renewable Energy, Inc.), (d) Pacific Ethanol Canton, LLC (f/k/a Aventine Renewable
Energy –Canton, LLC, (f) Pacific Ethanol Aurora East, LLC (f/k/a Nebraska Energy, L.L.C.), and (g) Pacific Aurora, LLC, in
each instance, together with its successors and assigns.


 


“Pacific Ethanol Credit Facility”
shall mean, collectively, any secured credit facility, whether a revolving line of credit or term loan, by and among any Pacific
Ethanol Affiliate and any financial institutions from time to time party thereto as lenders thereunder, including without limitation,
those certain credit facilities evidenced by (a) that certain the Credit Agreement, dated as of December 15, 2016, by and among
the financial institutions from time to time party thereto as lenders, CoBank, ACB, in its capacity as a Pacific Ethanol Affiliates
Credit Facilities Agent, and Pacific Ethanol Pekin, Inc. as the borrower thereunder, (b) the Credit Agreement, dated as of December
15, 2016, by and among CoBank, ACB, in its capacity lender, Pacific Ethanol Aurora East, LLC, Pacific Ethanol Aurora West, LLC
and Pacific Aurora, LLC as co-borrowers thereunder, and (c) any successor agreement executed by any Pacific Ethanol Affiliate to
refinance or replace such Credit Agreement or any successor agreement, in each case, as the same now exists or may hereafter be
amended, modified, supplemented, extended, renewed, restated or replaced.


 


“Pacific Ethanol Credit Facilities
Agent” shall mean, collectively, any collateral agent, administrative agent or other authorized representative of the
lender group with respect to any Pacific Ethanol Credit Facility.


 


“Parent” means Pacific
Ethanol, Inc., a Delaware corporation.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


 


 






    	 	37	 



     


    

 


“Permitted Dispositions”
means:


 


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


 


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


 


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


 


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


 


(e)   
the granting of Permitted Liens,


 


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


 


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


 


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


 


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


 


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


 


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


 


(l)    
the making of Permitted Investments,


 


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


 


(n)  
dispositions of Equipment or Real Property to the extent that (i) such property is
exchanged for credit against the purchase price of similar replacement property, or (ii) the proceeds of such disposition are promptly
applied to the purchase price of such replacement property; provided, that to the extent the property being transferred
constitutes Collateral, such replacement property shall constitute Collateral,


 


 


 






    	 	38	 



     


    

 


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


 


“Permitted Indebtedness”
means:


 


(a)   
Indebtedness in respect of the Obligations,


 


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


 


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


 


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


 


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


 


(f)   
[Reserved]


 


(g)  
[Reserved],


 


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


 


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


 


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


 


 


 






    	 	39	 



     


    

 


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


 


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


 


(m) 
[Reserved],


 


(n)  
Indebtedness composing Permitted Investments,


 


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


 


(p)  
[Reserved],


 


(q)  
[Reserved], 


 


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


 


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


 


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


 


“Permitted Investments”
means:


 


(a)   
Investments in cash and Cash Equivalents,


 


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


 


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


 


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


 


 


 






    	 	40	 



     


    

 


(e)   
Investments owned by any Loan Party or any of its Subsidiaries on the Closing Date
and set forth on Schedule P-1 to this Agreement, provided, that, except for Kinergy with respect to Pacific Ag., no Borrower shall
not have any further obligations or liabilities to make any capital contributions or other additional investments or other payments
to or in or for the benefit of any of such Subsidiaries,


 


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


 


(g)  
[Reserved],


 


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


 


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


 


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


 


(k)  
[Reserved],


 


(l)    
Investments in the form of capital contributions and the acquisition of Equity Interests
made by any Loan Party in any other Loan Party, 


 


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


 


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


 


“Permitted Liens” means:


 


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


 


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


 


 


 






    	 	41	 



     


    

 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


 


 






    	 	42	 



     


    

 


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


 


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


 


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


 


“Permitted Purchase Money Indebtedness”
means, as of any date of determination, Indebtedness (other than the Obligations, but including Capitalized Lease Obligations (other
than any obligations in respect of operating leases beginning after December 15, 2018, that would not have been classified as Capitalized
Lease Obligations prior to the new Financial Accounting Standards Board standard issued in 2016), incurred after the Closing Date
and at the time of, or within 20 days after, the acquisition of any fixed assets or Real Property for the purpose of financing
all or any part of the acquisition cost thereof, in an aggregate principal amount outstanding at any one time not in excess of
$4,000,000.


 


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


 


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


 


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


 


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


 


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


 


 


 






    	 	43	 



     


    

 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


 


 






    	 	44	 



     


    

 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


 


 






    	 	45	 



     


    

 


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


 


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


 


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


 


 


 






    	 	46	 



     


    

 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


 


 






    	 	47	 



     


    

 


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


 


“Special Eligibility Conditions”
means, with respect to the sale by any Pacific Ethanol Affiliates to any Borrower of Pacific Ethanol Acquired Inventory pursuant
to a Marketing Agreement and the transactions set forth in the Marketing Agreements, that Agent has received, in form and substance
reasonably satisfactory to Agent and executed by each Pacific Ethanol Affiliates Credit Facilities Agent, one or more agreements,
consents, access and/or licenses, including provisions providing for (a) the release of all (or acknowledgement of not having any)
liens and security interests in the Pacific Ethanol Acquired Inventory and (b) the right of Agent to access such Pacific Ethanol
Acquired Inventory.


 


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


 


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


 


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


 


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


 


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


 


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


 


 


 






    	 	48	 



     


    

 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“United States” means the
United States of America.


 


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


 


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


 


 


 






    	 	49	 



     


    

 


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


 


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


 


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


 


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


 


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


 


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


 


 


 






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


 


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


 


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


 


 


 






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


 


2.               
LOANS AND TERMS OF PAYMENT.


 


2.1            
Revolving Loans.


 


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


 


(i)        
such Lender’s Revolver Commitment, or


 


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


 


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


 


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


 


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


 


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


 


2.2            
 [Reserved]


 


 


 






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2.3            
Borrowing Procedures and Settlements.


 


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


 


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


 


(c)   
Making of Revolving Loans.


 


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


 


 


 






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


 


(d)  
Protective Advances and Optional Overadvances.


 


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


 


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


 


 


 






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


 


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


 


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


 


 


 






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


 


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


 


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


 


 


 






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


 


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


 


(g)  
Defaulting Lenders.


 


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


 


 


 






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


 


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


 


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


 


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


 


 


 






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


 


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


 


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


 


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


 


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


 


2.4            
Payments; Reductions of Commitments; Prepayments.


 


(a)   
Payments by Borrowers.


 


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


 


 


 






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


 


(b)  
Apportionment and Application.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


 


 






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


 


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


 


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


 


(J)   
tenth, ratably


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


 


 






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


 


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


 


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


 


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


 


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


 


(f)   
Application of Payments.


 


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


 


2.5            
Promise to Pay; Promissory Notes.


 


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


 


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


 


 


 






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


 


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


 


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


 


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


 


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


 


 


 






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


 


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


 


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


 


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


 


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


 


 


 






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2.10         
Fees.


 


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


 


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


 


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


 


2.11         
Letters of Credit.


 


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


 


 


 






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


 


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


 


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


 


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


 


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


 


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


 


 


 






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


 


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


 


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


 


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


 


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


 


 


 






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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(xiii) 
the acts or omissions, whether rightful or wrongful, of any present or future de
jure or de facto governmental or regulatory authority or cause or event beyond the control of the Letter of Credit Related Person;


 


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


 


 


 






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


 


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


 


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


 


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


 


 


 






    	 	69	 



     


    

 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


 


 






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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


 


 






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


 


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


 


(ii)      
there shall be imposed on Issuing Bank or any other member of the Lender Group any
other condition regarding any Letter of Credit, Loans, or obligations to make Loans hereunder,


 


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


 


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


 


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


 


 


 






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


 


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



 


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


 


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


 


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


 


2.12         
Special Provisions Applicable to Daily Three Month LIBOR.


 


(a)             
The Daily Three Month LIBOR Rate may be adjusted by Agent with respect to any Lender
on a prospective basis to take into account any additional or increased costs to such Lender of maintaining or obtaining any eurodollar
deposits or increased costs (other than Taxes which shall be governed by Section 16), in each case, due to changes in applicable
law, including any Changes in Law and changes in the reserve requirements imposed by the Board of Governors, which additional or
increased costs would increase the cost of funding or maintaining loans bearing interest at the Daily Three Month LIBOR Rate. In
any such event, the affected Lender shall give Borrowers and Agent notice of such a determination and adjustment and Agent promptly
shall transmit the notice to each other Lender and, upon its receipt of the notice from the affected Lender, Borrowers may, by
notice to such affected Lender, require such Lender to furnish to Borrowers a statement setting forth in reasonable detail the
basis for adjusting such Daily Three Month LIBOR Rate and the method for determining the amount of such adjustment.


 


 


 






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(b)  
In the event that (i) any change in market conditions or any Change in Law shall
at any time after the date hereof, in the reasonable opinion of any Lender, make it unlawful or impractical for such Lender to
fund or maintain Loans at the Daily Three Month LIBOR Rate, or to continue such funding or maintaining, or to determine or charge
interest rates at the Daily Three Month LIBOR Rate, or (ii) any Lender determines that the interest rate hereunder based on the
Daily Three Month LIBOR will not adequately and fairly reflect the cost to such Lender of maintaining or funding any Loans based
upon Daily Three Month LIBOR, then, in either case, (x) such Lender shall give notice of such changed circumstances to Agent and
Borrower, and Agent promptly shall transmit the notice to each other Lender, (y) such Loans of such Lender shall thereafter bear
interest at a per annum rate equal to the Base Rate plus the Applicable Margin and (z) interest based on the Daily Three Month
LIBOR shall not be available for Loans of such Lender until such Lender determines that interest based on such rate is again available.


 


(c)   
Anything to the contrary contained herein notwithstanding, neither Agent, nor any
Lender, nor any of their Participants, is required actually to acquire eurodollar deposits to fund or otherwise match fund any
Obligation as to which interest accrues at the Daily Three Month LIBOR Rate.


 


2.13         
Capital Requirements.


 


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


 


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


 


 


 






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


 


2.14         
[Reserved]


 


2.15         
Joint and Several Liability of Borrowers.


 


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


 


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


 


 


 






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


 


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


 


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


 


 


 






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


 


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


 


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


 


 


 






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(i)    
Each of the Borrowers hereby acknowledges and affirms that it understands that to
the extent the Obligations are secured by Real Property located in California, the Borrowers shall be liable for the full amount
of the liability hereunder notwithstanding the foreclosure on such Real Property by trustee sale or any other reason impairing
such Borrower’s right to proceed against any other Loan Party. In accordance with Section 2856 of the California Civil Code
or any similar laws of any other applicable jurisdiction, each of the Borrowers hereby waives until such time as the Obligations
have been paid in full:


 


(i)        
all rights of subrogation, reimbursement, indemnification, and contribution and any
other rights and defenses that are or may become available to the Borrowers by reason of Sections 2787 to 2855, inclusive, 2899,
and 3433 of the California Civil Code or any similar laws of any other applicable jurisdiction; 


 


(ii)      
all rights and defenses that the Borrowers may have because the Obligations are secured
by Real Property located in California, meaning, among other things, that: (A) Agent, the other members of the Lender Group, and
the Bank Product Provider may collect from the Borrowers without first foreclosing on any real or personal property collateral
pledged by any Loan Party, and (B) if Agent, on behalf of the Lender Group, forecloses on any Real Property Collateral pledged
by any Loan Party, (1) the amount of the Obligations may be reduced only by the price for which that collateral is sold at the
foreclosure sale, even if the collateral is worth more than the sale price, and (2) the Lender Group may collect from the Loan
Parties even if, by foreclosing on the Real Property Collateral, Agent or the other members of the Lender Group have destroyed
or impaired any right the Borrowers may have to collect from any other Loan Party, it being understood that this is an unconditional
and irrevocable waiver of any rights and defenses the Borrowers may have because the Obligations are secured by Real Property (including,
without limitation, any rights or defenses based upon Sections 580a, 580d, or 726 of the California Code of Civil Procedure or
any similar laws of any other applicable jurisdiction); and 


 


(iii)    
all rights and defenses arising out of an election of remedies by Agent, the other
members of the Lender Group, and the Bank Product Provider, even though that election of remedies, such as a nonjudicial foreclosure
with respect to security for the Obligations, has destroyed the Borrowers’ rights of subrogation and reimbursement against
any other Loan Party by the operation of Section 580d of the California Code of Civil Procedure or any similar laws of any other
applicable jurisdiction or otherwise. 


 


 


 






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2.16         
[Reserved]


 


3.               
CONDITIONS; TERM OF AGREEMENT.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


 


 






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4.               
REPRESENTATIONS AND WARRANTIES.


 


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


 


4.1            
Due Organization and Qualification; Subsidiaries.


 


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


 


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


 


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


 


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


 


 


 






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4.2            
Due Authorization; No Conflict.


 


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


 


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


 


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


 


4.4            
Binding Obligations; Perfected Liens.


 


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


 


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


 


 


 






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


 


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


 


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


 


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


 


4.9            
Solvency.


 


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


 


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


 


4.10         
Employee Benefits.


 


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


 


 


 






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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


 


 






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


 


4.14         
[Reserved]


 


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


 


4.16         
Margin Stock. Neither Parent nor any Loan Party nor any Subsidiaries
of any Loan Party owns any Margin Stock or is engaged principally, or as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying any Margin Stock. No part of the proceeds of the loans made to Borrowers will
be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin
Stock or for any purpose that violates the provisions of Regulation T, U or X of the Board of Governors. Neither Parent nor any
Loan Party nor any Subsidiaries of any Loan Party expects to acquire any Margin Stock.


 


4.17         
Governmental Regulation. Neither Parent nor any Loan Party no
any of its Subsidiaries is subject to regulation under the Federal Power Act or the Investment Company Act of 1940 or under any
other federal or state statute or regulation which may limit its ability to incur the Obligations as applicable to it or which
may otherwise render all or any portion of the Obligations unenforceable. Neither Parent nor any Loan Party nor Subsidiaries of
any Loan Party is a “registered investment company” or a company “controlled” by a “registered investment
company” or a “principal underwriter” of a “registered investment company” as such terms are defined
in the Investment Company Act of 1940.


 


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


 


 


 






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4.19         
Employee and Labor Matters. There is (i) no unfair labor practice
complaint pending or, to the knowledge of any Borrower, threatened against any Loan Party or its Subsidiaries before any Governmental
Authority and no grievance or arbitration proceeding pending or threatened against any Loan Party or its Subsidiaries which arises
out of or under any collective bargaining agreement and that could reasonably be expected to result in a material liability, (ii)
no strike, labor dispute, slowdown, stoppage or similar action or grievance pending or threatened in writing against any Loan Party
or its Subsidiaries that could reasonably be expected to result in a material liability, or (iii) to the knowledge of any Borrower,
after due inquiry, no union representation question existing with respect to the employees of any Loan Party or its Subsidiaries
and no union organizing activity taking place with respect to any of the employees of any Loan Party or its Subsidiaries. None
of any Loan Party or its Subsidiaries has incurred any liability or obligation under the Worker Adjustment and Retraining Notification
Act or similar state law, which remains unpaid or unsatisfied. The hours worked and payments made to employees of each Loan Party
and its Subsidiaries have not been in violation of the Fair Labor Standards Act or any other applicable legal requirements, except
to the extent such violations could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse
Effect. All material payments due from any Loan Party or its Subsidiaries on account of wages and employee health and welfare insurance
and other benefits have been paid or accrued as a liability on the books of Borrowers, except where the failure to do so could
not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.


 


4.20         
[Reserved]


 


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


 


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


 


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


 


 


 






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


 


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


 


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


 


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


 


5.               
AFFIRMATIVE COVENANTS.


 


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


 


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


 


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


 


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


 


 


 






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


 


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


 


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


 


5.7            
Inspection.


 


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


 


 


 






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


 


(c)   
So long as no Default or Event of Default has occurred and is continuing, Borrowers
shall not be obligated to pay Agent for out-of-pocket expenses and costs incurred by Agent in connection with more than three (3)
such field examinations in any twelve (12) month period following the date hereof. In addition, Agent may, at its election and
at Borrower’ expense, no more than one (1) time in any twelve (12) month period (or two (2) times during any 12 month period
(x) with respect to any Inventory subject to a Borrower Requested Appraisal (as defined below) or (y) if Excess Availability is
at any time during such 12 month period less than 50% of the Maximum Revolver Amount), conduct appraisals as to the Inventory,
which appraisals shall be Acceptable Appraisals, provided, that, (i) if an Event of Default has occurred and is continuing, Agent
may conduct, at Borrowers’ expense, such additional appraisals as to the Inventory without limitation, as determined by Agent
and (ii) at the request of Borrower made no more than one (1) time in any 12 month period, Agent shall conduct, at the expense
of Borrower, an appraisal of Inventory selected by Borrower for appraisal (any such appraisal under this clause (ii) referred to
herein as a “Borrower Requested Appraisal”);


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


 


 






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


 


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


 


 


 






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5.13         
[Reserved].


 


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


 


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


 


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


 


 


 






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6.               
NEGATIVE COVENANTS.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


 


 






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


 


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


 


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


 


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


 


(i)optionally prepay, redeem, defease,
purchase, or otherwise acquire (A) any Subordinated Indebtedness of any Loan Party or its Subsidiaries, or (B) any Indebtedness
of any Loan Party or its Subsidiaries that is secured by a Lien on the Collateral that is junior to the Agent’s Liens, or


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


 


 






    	 	92	 



     


    

 


(c)   
[reserved],


 


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


 


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


 


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


 


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


 


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


 


(a)   
[reserved],


 


(b)  
[reserved],


 


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


 


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


 


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


 


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


 


 


 






    	 	93	 



     


    

 


(g)  
[reserved],


 


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


 


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


 


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


 


6.12         
Limitation on Issuance of Equity Interests. Except for the issuance
or sale of Qualified Equity Interests by Parent with respect to Pacific Ag or by Kinergy with respect to Pacific Ag, each Loan
Party will not, and will not permit any of its Subsidiaries issue or sell any of its Equity Interests and each Loan Party will
not permit Parent issue or sell any of its Equity Interests in and to Kinergy.


 


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


 


6.14         
[Reserved]


 


6.15         
[Reserved].


 


6.16         
Employee Benefits. Each Loan Party will not:


 


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


 


 


 






    	 	94	 



     


    

 


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


 


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


 


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


 


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


 


7.               
FINANCIAL COVENANTS.


 


Each Borrower covenants and agrees that, until
the termination of all of the Commitments and the payment in full of the Obligations, Borrowers will maintain a Fixed Charge Coverage
Ratio of not less than 2:0 to 1.00, calculated as of the last day of each fiscal month of Borrowers for the 12 month period then
ended; provided, that, the foregoing financial covenant shall not apply to any month for which the Excess Availability
was at all times during such month, and at all times during each of the two (2) prior months, greater than twenty percent (20%)
of the Maximum Revolver Amount; provided, further, that the foregoing test metric shall be based on Liquidity
and not Excess Availability during any consecutive five (5) Business Day period that includes the last Business Day of a fiscal
quarter (not to exceed five (5) total Business Days for any quarter end).


 


8.               
EVENTS OF DEFAULT.


 


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


 


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


 


8.2            
Covenants.


 


 


 






    	 	95	 



     


    

 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


 


 






    	 	96	 



     


    

 


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


 


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


 


8.9            
Security Documents. As to any Loan Party, if the Guaranty and
Security Agreement or any other Loan Document that purports to create a Lien, shall, for any reason, fail or
cease to create a valid and perfected and, (except to the extent of Permitted Liens which are non-consensual Permitted Liens1,
permitted purchase money Liens or the interests of lessors under Capital Leases) first priority Lien on the Collateral covered
thereby, except (a) as a result of a disposition of the applicable Collateral in a transaction permitted under this Agreement,
or (b) otherwise with respect to such Collateral, having an aggregate value of no greater than $250,000;


 


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


 


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


 


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


 





_______________


1 Note – Troutman Sanders’s request
to add carve-out for non-delinquent taxes and assessments and any taxes and assessments subject to a Permitted Protest appears
to already be covered by this footnoted exception.







 






    	 	97	 



     


    

 


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


 


9.               
RIGHTS AND REMEDIES.


 


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


 


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


 


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


 


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


 


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


 


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


 


 


 






    	 	98	 



     


    

 


9.3            
Reserved.


 


10.            
WAIVERS; INDEMNIFICATION.


 


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


 


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


 


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


 


 


 






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11.            
NOTICES.


 


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


 


	If to any Loan Party:	c/o Administrative Borrower
	 	400 Capital Mall, Suite 2060
	 	Sacramento, California 95814
	 	Attn: General Counsel
	 	 
	with copies to:	Troutman Sanders
	 	5 Park Plaza, Suite 1400
	 	Irvine, California 92614
	 	Attn:  Martin Taylor, Esq.
	 	 
	If to Agent:	WELLS FARGO BANK, NATIONAL ASSOCIATION
	 	2450 Colorado Avenue, Suite 3000W, 4th Floor
	 	Santa Monica, CA 90404
	 	Attn: Loan Portfolio Manager
	 	 
	with copies to:	Otterbourg, P.C.
	 	230 Park Avenue
	 	New York, NY 10169
	 	Attn:  Jim M. Cretella, Esq.
	 	 


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


 


 


 






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


 


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


 


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


 


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


 


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


 


 


 






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


 


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


 


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


 


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


 


 


 






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


 


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


 


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


 


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


 


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


 


 


 






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13.            
ASSIGNMENTS AND PARTICIPATIONS; SUCCESSORS.


 


13.1         
Assignments and Participations.


 


(a)   
Assignments Generally 


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


 


 






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


 


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


 


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


 


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


 


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


 


 


 






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


 


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


 


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


 


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


 


 


 






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


 


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


 


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


 


14.            
AMENDMENTS; WAIVERS.


 






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14.1         
Amendments and Waivers.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


 


 






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


 


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


 


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


 


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


 


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


 


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


 


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


 


14.2         
Replacement of Certain Lenders.


 


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


 


 


 






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


 


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


 


15.            
AGENT; THE LENDER GROUP.


 


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


 


 


 






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


 


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


 


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


 


 


 






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


 


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


 


 


 






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


 


15.8         
Agent in Individual Capacity. Wells Fargo and its Affiliates
may make loans to, issue letters of credit for the account of, accept deposits from, provide Bank Products to, acquire Equity Interests
in, and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with any Loan Party
and its Subsidiaries and Affiliates and any other Person party to any Loan Document as though Wells Fargo were not Agent hereunder,
and, in each case, without notice to or consent of the other members of the Lender Group. The other members of the Lender Group
acknowledge (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to acknowledge) that, pursuant
to such activities, Wells Fargo or its Affiliates may receive information regarding a Loan Party or its Affiliates or any other
Person party to any Loan Documents that is subject to confidentiality obligations in favor of such Loan Party or such other Person
and that prohibit the disclosure of such information to the Lenders (or Bank Product Provider), and the Lenders acknowledge (and
by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to acknowledge) that, in such circumstances
(and in the absence of a waiver of such confidentiality obligations, which waiver Agent will use its reasonable best efforts to
obtain), Agent shall not be under any obligation to provide such information to them. The terms “Lender” and “Lenders”
include Wells Fargo in its individual capacity.


 


 


 






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15.9         
Successor Agent. Agent may resign as Agent upon 30 days (ten
days if an Event of Default has occurred and is continuing) prior written notice to the Lenders (unless such notice is waived by
the Required Lenders) and Borrowers (unless such notice is waived by Borrowers or a Default or Event of Default has occurred and
is continuing) and without any notice to the Bank Product Provider. If Agent resigns under this Agreement, the Required Lenders
shall be entitled, with (so long as no Event of Default has occurred and is continuing) the consent of Borrowers (such consent
not to be unreasonably withheld, delayed, or conditioned), appoint a successor Agent for the Lenders (and the Bank Product Provider).
If, at the time that Agent’s resignation is effective, it is acting as Issuing Bank or the Swing Lender, such resignation
shall also operate to effectuate its resignation as Issuing Bank or the Swing Lender, as applicable, and it shall automatically
be relieved of any further obligation to issue Letters of Credit, or to make Swing Loans. If no successor Agent is appointed prior
to the effective date of the resignation of Agent, Agent may appoint, after consulting with the Lenders and Borrowers, a successor
Agent. If Agent has materially breached or failed to perform any material provision of this Agreement or of applicable law, the
Required Lenders may agree in writing to remove and replace Agent with a successor Agent from among the Lenders with (so long as
no Event of Default has occurred and is continuing) the consent of Borrowers (such consent not to be unreasonably withheld, delayed,
or conditioned). In any such event, upon the acceptance of its appointment as successor Agent hereunder, such successor Agent shall
succeed to all the rights, powers, and duties of the retiring Agent and the term “Agent” shall mean such successor
Agent and the retiring Agent’s appointment, powers, and duties as Agent shall be terminated. After any retiring Agent’s
resignation hereunder as Agent, the provisions of this Section 15 shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Agent under this Agreement. If no successor Agent has accepted appointment as Agent by the
date which is 30 days following a retiring Agent’s notice of resignation, the retiring Agent’s resignation shall nevertheless
thereupon become effective and the Lenders shall perform all of the duties of Agent hereunder until such time, if any, as the Lenders
appoint a successor Agent as provided for above.


 


15.10      
Lender in Individual Capacity. Any Lender and its respective
Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, provide Bank Products to, acquire
Equity Interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with
any Loan Party and its Subsidiaries and Affiliates and any other Person party to any Loan Documents as though such Lender were
not a Lender hereunder without notice to or consent of the other members of the Lender Group (or the Bank Product Provider). The
other members of the Lender Group acknowledge (and by entering into a Bank Product Agreement, each Bank Product Provider shall
be deemed to acknowledge) that, pursuant to such activities, such Lender and its respective Affiliates may receive information
regarding a Loan Party or its Affiliates or any other Person party to any Loan Documents that is subject to confidentiality obligations
in favor of such Loan Party or such other Person and that prohibit the disclosure of such information to the Lenders, and the Lenders
acknowledge (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to acknowledge) that, in
such circumstances (and in the absence of a waiver of such confidentiality obligations, which waiver such Lender will use its reasonable
best efforts to obtain), such Lender shall not be under any obligation to provide such information to them.


 


15.11      
Collateral Matters.


 


 


 






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(a)   
The Lenders hereby irrevocably authorize (and by entering into a Bank Product Agreement,
each Bank Product Provider shall be deemed to authorize) Agent to release any Lien on any Collateral (i) upon the termination of
the Commitments and payment and satisfaction in full by the Loan Parties and their Subsidiaries of all of the Obligations, (ii)
constituting property being sold or disposed of if a release is required or desirable in connection therewith and if Borrowers
certify to Agent that the sale or disposition is permitted under Section 6.4 (and Agent may rely conclusively on any such
certificate, without further inquiry), (iii) constituting property in which no Loan Party or any of its Subsidiaries owned any
interest at the time Agent’s Lien was granted nor at any time thereafter, (iv) constituting property leased or licensed to
a Loan Party or its Subsidiaries under a lease or license that has expired or is terminated in a transaction permitted under this
Agreement, or (v) in connection with a credit bid or purchase authorized under this Section 15.11. The Loan Parties and
the Lenders hereby irrevocably authorize (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed
to authorize) Agent, based upon the instruction of the Required Lenders, to (a) consent to the sale of, credit bid, or purchase
(either directly or indirectly through one or more entities) all or any portion of the Collateral at any sale thereof conducted
under the provisions of the Bankruptcy Code, including Section 363 of the Bankruptcy Code, (b) credit bid or purchase (either directly
or indirectly through one or more entities) all or any portion of the Collateral at any sale or other disposition thereof conducted
under the provisions of the Code, including pursuant to Sections 9-610 or 9-620 of the Code, or (c) credit bid or purchase (either
directly or indirectly through one or more entities) all or any portion of the Collateral at any other sale or foreclosure conducted
or consented to by Agent in accordance with applicable law in any judicial action or proceeding or by the exercise of any legal
or equitable remedy. In connection with any such credit bid or purchase, (i) the Obligations owed to the Lenders and the Bank Product
Provider shall be entitled to be, and shall be, credit bid on a ratable basis (with Obligations with respect to contingent or unliquidated
claims being estimated for such purpose if the fixing or liquidation thereof would not impair or unduly delay the ability of Agent
to credit bid or purchase at such sale or other disposition of the Collateral and, if such contingent or unliquidated claims cannot
be estimated without impairing or unduly delaying the ability of Agent to credit bid at such sale or other disposition, then such
claims shall be disregarded, not credit bid, and not entitled to any interest in the Collateral that is the subject of such credit
bid or purchase) and the Lenders and the Bank Product Provider whose Obligations are credit bid shall be entitled to receive interests
(ratably based upon the proportion of their Obligations credit bid in relation to the aggregate amount of Obligations so credit
bid) in the Collateral that is the subject of such credit bid or purchase (or in the Equity Interests of the any entities that
are used to consummate such credit bid or purchase), and (ii) Agent, based upon the instruction of the Required Lenders, may accept
non-cash consideration, including debt and equity securities issued by any entities used to consummate such credit bid or purchase
and in connection therewith Agent may reduce the Obligations owed to the Lenders and the Bank Product Provider (ratably based upon
the proportion of their Obligations credit bid in relation to the aggregate amount of Obligations so credit bid) based upon the
value of such non-cash consideration; provided, that Bank Product Obligations not entitled to the application set forth in Section
2.4(b)(iii)(J) shall not be entitled to be, and shall not be, credit bid, or used in the calculation of the ratable interest
of the Lenders and Bank Product Provider in the Obligations which are credit bid. Except as provided above, Agent will not execute
and deliver a release of any Lien on any Collateral without the prior written authorization of (y) if the release is of all or
substantially all of the Collateral, all of the Lenders (without requiring the authorization of the Bank Product Provider), or
(z) otherwise, the Required Lenders (without requiring the authorization of the Bank Product Provider). Upon request by Agent or
Borrowers at any time, the Lenders will (and if so requested, the Bank Product Provider will) confirm in writing Agent’s
authority to release any such Liens on particular types or items of Collateral pursuant to this Section 15.11; provided,
that (1) anything to the contrary contained in any of the Loan Documents notwithstanding, Agent shall not be required to execute
any document or take any action necessary to evidence such release on terms that, in Agent’s opinion, could expose Agent
to liability or create any obligation or entail any consequence other than the release of such Lien without recourse, representation,
or warranty, and (2) such release shall not in any manner discharge, affect, or impair the Obligations or any Liens (other than
those expressly released) upon (or obligations of Borrowers in respect of) any and all interests retained by any Borrower, including,
the proceeds of any sale, all of which shall continue to constitute part of the Collateral. Each Lender further hereby irrevocably
authorize (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to irrevocably authorize)
Agent, at its option and in its sole discretion, to subordinate (by contract or otherwise) any Lien granted to or held by Agent
on any property under any Loan Document (a) to the holder of any Permitted Lien on such property if such Permitted Lien secures
purchase money Indebtedness (including Capitalized Lease Obligations) which constitute Permitted Indebtedness and (b) to the extent
Agent has the authority under this Section 15.11 to release its Lien on such property.


 


 


 






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(b)  
Agent shall have no obligation whatsoever to any of the Lenders (or the Bank Product
Provider) (i) to verify or assure that the Collateral exists or is owned by a Loan Party or any of its Subsidiaries or is cared
for, protected, or insured or has been encumbered, (ii) to verify or assure that Agent’s Liens have been properly or sufficiently
or lawfully created, perfected, protected, or enforced or are entitled to any particular priority, (iii) to verify or assure that
any particular items of Collateral meet the eligibility criteria applicable in respect thereof, (iv) to impose, maintain, increase,
reduce, implement, or eliminate any particular reserve hereunder or to determine whether the amount of any reserve is appropriate
or not, or (v) to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue
exercising, any of the rights, authorities and powers granted or available to Agent pursuant to any of the Loan Documents, it being
understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, subject to the terms and
conditions contained herein, Agent may act in any manner it may deem appropriate, in its sole discretion given Agent’s own
interest in the Collateral in its capacity as one of the Lenders and that Agent shall have no other duty or liability whatsoever
to any Lender (or Bank Product Provider) as to any of the foregoing, except as otherwise expressly provided herein.


 


15.12      
Restrictions on Actions by Lenders; Sharing of Payments.


 


(a)   
Each of the Lenders agrees that it shall not, without the express written consent
of Agent, and that it shall, to the extent it is lawfully entitled to do so, upon the written request of Agent, set off against
the Obligations, any amounts owing by such Lender to any Loan Party or its Subsidiaries or any deposit accounts of any Loan Party
or its Subsidiaries now or hereafter maintained with such Lender. Each of the Lenders further agrees that it shall not, unless
specifically requested to do so in writing by Agent, take or cause to be taken any action, including, the commencement of any legal
or equitable proceedings to enforce any Loan Document against any Borrower or any Guarantor or to foreclose any Lien on, or otherwise
enforce any security interest in, any of the Collateral.


 


(b)  
If, at any time or times any Lender shall receive (i) by payment, foreclosure, setoff,
or otherwise, any proceeds of Collateral or any payments with respect to the Obligations, except for any such proceeds or payments
received by such Lender from Agent pursuant to the terms of this Agreement, or (ii) payments from Agent in excess of such Lender’s
Pro Rata Share of all such distributions by Agent, such Lender promptly shall (A) turn the same over to Agent, in kind, and with
such endorsements as may be required to negotiate the same to Agent, or in immediately available funds, as applicable, for the
account of all of the Lenders and for application to the Obligations in accordance with the applicable provisions of this Agreement,
or (B) purchase, without recourse or warranty, an undivided interest and participation in the Obligations owed to the other Lenders
so that such excess payment received shall be applied ratably as among the Lenders in accordance with their Pro Rata Shares; provided,
that to the extent that such excess payment received by the purchasing party is thereafter recovered from it, those purchases of
participations shall be rescinded in whole or in part, as applicable, and the applicable portion of the purchase price paid therefor
shall be returned to such purchasing party, but without interest except to the extent that such purchasing party is required to
pay interest in connection with the recovery of the excess payment.


 


15.13      
Agency for Perfection. Agent hereby appoints each other Lender
(and each Bank Product Provider) as its agent (and each Lender hereby accepts (and by entering into a Bank Product Agreement, each
Bank Product Provider shall be deemed to accept) such appointment) for the purpose of perfecting Agent’s Liens in assets
which, in accordance with Article 8 or Article 9, as applicable, of the Code can be perfected by possession or control. Should
any Lender obtain possession or control of any such Collateral, such Lender shall notify Agent thereof, and, promptly upon Agent’s
request therefor shall deliver possession or control of such Collateral to Agent or in accordance with Agent’s instructions.


 


 


 






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15.14      
Payments by Agent to the Lenders. All payments to be made by
Agent to the Lenders (or Bank Product Provider) shall be made by bank wire transfer of immediately available funds pursuant to
such wire transfer instructions as each party may designate for itself by written notice to Agent. Concurrently with each such
payment, Agent shall identify whether such payment (or any portion thereof) represents principal, premium, fees, or interest of
the Obligations.


 


15.15      
Concerning the Collateral and Related Loan Documents. Each member
of the Lender Group authorizes and directs Agent to enter into this Agreement and the other Loan Documents. Each member of the
Lender Group agrees (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to agree) that any
action taken by Agent in accordance with the terms of this Agreement or the other Loan Documents relating to the Collateral and
the exercise by Agent of its powers set forth therein or herein, together with such other powers that are reasonably incidental
thereto, shall be binding upon all of the Lenders (and such Bank Product Provider).


 


15.16      
Field Examination Reports; Confidentiality; Disclaimers by Lenders; Other Reports
and Information. By becoming a party to this Agreement, each Lender:


 


(a)   
is deemed to have requested that Agent furnish such Lender, promptly after it becomes
available, a copy of each field examination report respecting any Loan Party or its Subsidiaries (each, a “Report”)
prepared by or at the request of Agent, and Agent shall so furnish each Lender with such Reports,


 


(b)  
expressly agrees and acknowledges that Agent does not (i) make any representation
or warranty as to the accuracy of any Report, and (ii) shall not be liable for any information contained in any Report,


 


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


 


(d)  
agrees to keep all Reports and other material, non-public information regarding the
Loan Parties and their Subsidiaries and their operations, assets, and existing and contemplated business plans in a confidential
manner in accordance with Section 17.9, and


 


(e)   
without limiting the generality of any other indemnification provision contained
in this Agreement, agrees: (i) to hold Agent and any other Lender preparing a Report harmless from any action the indemnifying
Lender may take or fail to take or any conclusion the indemnifying Lender may reach or draw from any Report in connection with
any loans or other credit accommodations that the indemnifying Lender has made or may make to Borrowers, or the indemnifying Lender’s
participation in, or the indemnifying Lender’s purchase of, a loan or loans of Borrowers, and (ii) to pay and protect, and
indemnify, defend and hold Agent, and any such other Lender preparing a Report harmless from and against, the claims, actions,
proceedings, damages, costs, expenses, and other amounts (including, attorneys’ fees and costs) incurred by Agent and any
such other Lender preparing a Report as the direct or indirect result of any third parties who might obtain all or part of any
Report through the indemnifying Lender.


 


 


 






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In addition to the foregoing, (x) any Lender may from time to
time request of Agent in writing that Agent provide to such Lender a copy of any report or document provided by any Loan Party
or its Subsidiaries to Agent that has not been contemporaneously provided by such Loan Party or such Subsidiary to such Lender,
and, upon receipt of such request, Agent promptly shall provide a copy of same to such Lender, (y) to the extent that Agent is
entitled, under any provision of the Loan Documents, to request additional reports or information from any Loan Party or its Subsidiaries,
any Lender may, from time to time, reasonably request Agent to exercise such right as specified in such Lender’s notice to
Agent, whereupon Agent promptly shall request of Borrowers the additional reports or information reasonably specified by such Lender,
and, upon receipt thereof from such Loan Party or such Subsidiary, Agent promptly shall provide a copy of same to such Lender,
and (z) any time that Agent renders to Borrowers a statement regarding the Loan Account, Agent shall send a copy of such statement
to each Lender.


 


15.17      
Several Obligations; No Liability. Notwithstanding that certain
of the Loan Documents now or hereafter may have been or will be executed only by or in favor of Agent in its capacity as such,
and not by or in favor of the Lenders, any and all obligations on the part of Agent (if any) to make any credit available hereunder
shall constitute the several (and not joint) obligations of the respective Lenders on a ratable basis, according to their respective
Commitments, to make an amount of such credit not to exceed, in principal amount, at any one time outstanding, the amount of their
respective Commitments. Nothing contained herein shall confer upon any Lender any interest in, or subject any Lender to any liability
for, or in respect of, the business, assets, profits, losses, or liabilities of any other Lender. Each Lender shall be solely responsible
for notifying its Participants of any matters relating to the Loan Documents to the extent any such notice may be required, and
no Lender shall have any obligation, duty, or liability to any Participant of any other Lender. Except as provided in Section
15.7, no member of the Lender Group shall have any liability for the acts of any other member of the Lender Group. No Lender
shall be responsible to any Borrower or any other Person for any failure by any other Lender (or Bank Product Provider) to fulfill
its obligations to make credit available hereunder, nor to advance for such Lender (or Bank Product Provider) or on its behalf,
nor to take any other action on behalf of such Lender (or Bank Product Provider) hereunder or in connection with the financing
contemplated herein.


 


15.18      
[Reserved]


 


16.            
WITHHOLDING TAXES.


 


16.1         
Payments. All payments made by any Loan Party under any Loan
Document will be made free and clear of, and without deduction or withholding for, any Taxes, except as otherwise required by applicable
law, and in the event any deduction or withholding of Taxes is required, the applicable Loan Party shall make the requisite withholding,
promptly pay over to the applicable Governmental Authority the withheld tax, and furnish to Agent as promptly as possible after
the date the payment of any such Tax is due pursuant to applicable law, certified copies of tax receipts evidencing such payment
by the Loan Parties. Furthermore, if any such Tax is an Indemnified Taxes or an Indemnified Tax is so levied or imposed, the Loan
Parties agree to pay the full amount of such Indemnified Taxes and such additional amounts as may be necessary so that every payment
of all amounts due under this Agreement, any note, or Loan Document, including any amount paid pursuant to this Section 16.1
after withholding or deduction for or on account of any Indemnified Taxes, will not be less than the amount provided for herein.
The Loan Parties will promptly pay any Other Taxes or reimburse Agent for such Other Taxes upon Agent's demand. The Loan Parties
shall jointly and severally indemnify each Indemnified Person (as defined in Section 10.3) (collectively a "Tax
Indemnitee") for the full amount of Indemnified Taxes arising in connection with this Agreement or any other Loan Document
or breach thereof by any Loan Party (including, without limitation, any Indemnified Taxes imposed or asserted on, or attributable
to, amounts payable under this Section 16) imposed on, or paid by, such Tax Indemnitee and all reasonable costs and expenses
related thereto (including fees and disbursements of attorneys and other tax professionals), as and when they are incurred and
irrespective of whether suit is brought, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by
the relevant Governmental Authority (other than Indemnified Taxes and additional amounts that a court of competent jurisdiction
finally determines to have resulted from the gross negligence or willful misconduct of such Tax Indemnitee). The obligations of
the Loan Parties under this Section 16 shall survive the termination of this Agreement, the resignation and replacement
of the Agent, and the repayment of the Obligations.


 


 


 






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16.2         
Exemptions.


 


(a)   
If a Lender or Participant is entitled to claim an exemption or reduction from United
States withholding tax, such Lender or Participant agrees with and in favor of Agent, to deliver to Agent (or, in the case of a
Participant, to the Lender granting the participation only) and the Administrative Borrower on behalf of all Borrowers one of the
following before receiving its first payment under this Agreement:


 


(i)        
if such Lender or Participant is entitled to claim an exemption from United States
withholding tax pursuant to the portfolio interest exception, (A) a statement of the Lender or Participant, signed under penalty
of perjury, that it is not a (I) a “bank” as described in Section 881(c)(3)(A) of the IRC, (II) a 10% shareholder of
Administrative Borrower (within the meaning of Section 871(h)(3)(B) of the IRC), or (III) a controlled foreign corporation related
to Borrowers within the meaning of Section 864(d)(4) of the IRC, and (B) a properly completed and executed IRS Form W-8BEN, Form
W-8BEN-E or Form W-8IMY (with proper attachments as applicable);


 


(ii)      
if such Lender or Participant is entitled to claim an exemption from, or a reduction
of, withholding tax under a United States tax treaty, a properly completed and executed copy of IRS Form W-8BEN or Form W-8BEN-E,
as applicable;


 


(iii)    
if such Lender or Participant is entitled to claim that interest paid under this
Agreement is exempt from United States withholding tax because it is effectively connected with a United States trade or business
of such Lender, a properly completed and executed copy of IRS Form W-8ECI;


 


(iv)     
if such Lender or Participant is entitled to claim that interest paid under this
Agreement is exempt from United States withholding tax because such Lender or Participant serves as an intermediary, a properly
completed and executed copy of IRS Form W-8IMY (including a withholding statement and copies of the tax certification documentation
for its beneficial owner(s) of the income paid to the intermediary, if required based on its status provided on the Form W-8IMY);
or


 


(v)      
a properly completed and executed copy of any other form or forms, including IRS
Form W-9, as may be required under the IRC or other laws of the United States as a condition to exemption from, or reduction of,
United States withholding or backup withholding tax.


 


(b)  
Each Lender or Participant shall provide new forms (or successor forms) upon the
expiration or obsolescence of any previously delivered forms and to promptly notify Agent and Administrative Borrower (or, in the
case of a Participant, to the Lender granting the participation only) of any change in circumstances which would modify or render
invalid any claimed exemption or reduction.


 


 


 






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(c)   
If a Lender or Participant claims an exemption from withholding tax in a jurisdiction
other than the United States, such Lender or such Participant agrees with and in favor of Agent and Borrowers, to deliver to Agent
and Administrative Borrower (or, in the case of a Participant, to the Lender granting the participation only) any such form or
forms, as may be required under the laws of such jurisdiction as a condition to exemption from, or reduction of, foreign withholding
or backup withholding tax before receiving its first payment under this Agreement, but only if such Lender or such Participant
is legally able to deliver such forms, or the providing of or delivery of such forms in the Lender's reasonable judgment would
not subject such Lender to any material unreimbursed cost or expense or materially prejudice the legal or commercial position of
such Lender (or its Affiliates); provided, further, that nothing in this Section 16.2(c) shall require a Lender or Participant
to disclose any information that it deems to be confidential (including without limitation, its tax returns). Each Lender and each
Participant shall provide new forms (or successor forms) upon the expiration or obsolescence of any previously delivered forms
and to promptly notify Agent and Administrative Borrower (or, in the case of a Participant, to the Lender granting the participation
only) of any change in circumstances which would modify or render invalid any claimed exemption or reduction.


 


(d)  
If a Lender or Participant claims exemption from, or reduction of, withholding tax
and such Lender or Participant sells, assigns, grants a participation in, or otherwise transfers all or part of the Obligations
of Borrowers to such Lender or Participant, such Lender or Participant agrees to notify Agent and Administrative Borrower (or,
in the case of a sale of a participation interest, to the Lender granting the participation only) of the percentage amount in which
it is no longer the beneficial owner of Obligations of Borrowers to such Lender or Participant. To the extent of such percentage
amount, Agent and Administrative Borrower will treat such Lender’s or such Participant’s documentation provided pursuant
to Section 16.2(a) or 16.2(c) as no longer valid. With respect to such percentage amount, such Participant or Assignee
may provide new documentation, pursuant to Section 16.2(a) or 16.2(c), if applicable. Borrowers agree that each Participant
shall be entitled to the benefits of this Section 16 with respect to its participation in any portion of the Commitments and the
Obligations so long as such Participant complies with the obligations set forth in this Section 16 with respect thereto.


 


(e)   
If a payment made to a Lender under any Loan Document would be subject to U.S. federal
withholding tax imposed by FATCA if such Lender were to fail to comply with the applicable due diligence and reporting requirements
of FATCA (including those contained in Section 1471(b) or 1472(b) of the IRC, as applicable), such Lender shall deliver to Agent
(or, in the case of a Participant, to the Lender granting the participation only) at the time or times prescribed by law and at
such time or times reasonably requested by Agent (or, in the case of a Participant, the Lender granting the participation) such
documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the IRC) and such additional
documentation reasonably requested by Agent (or, in the case of a Participant, the Lender granting the participation) as may be
necessary for Agent or Borrowers to comply with their obligations under FATCA and to determine that such Lender has complied with
such Lender's obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes
of this clause (e), "FATCA" shall include any amendments made to FATCA after the date of this Agreement.


 


16.3         
Reductions.


 


(a)   
If a Lender or a Participant is subject to an applicable withholding tax, Agent (or,
in the case of a Participant, the Lender granting the participation) may withhold from any payment to such Lender or such Participant
an amount equivalent to the applicable withholding tax. If the forms or other documentation required by Section 16.2(a)
or 16.2(c) are not delivered to Agent (or, in the case of a Participant, to the Lender granting the participation), then
Agent (or, in the case of a Participant, to the Lender granting the participation) may withhold from any payment to such Lender
or such Participant not providing such forms or other documentation an amount equivalent to the applicable withholding tax.


 


 


 






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(b)  
If the IRS or any other Governmental Authority of the United States or other jurisdiction
asserts a claim that Agent (or, in the case of a Participant, to the Lender granting the participation) did not properly withhold
tax from amounts paid to or for the account of any Lender or any Participant due to a failure on the part of the Lender or any
Participant (because the appropriate form was not delivered, was not properly executed, or because such Lender failed to notify
Agent (or such Participant failed to notify the Lender granting the participation) of a change in circumstances which rendered
the exemption from, or reduction of, withholding tax ineffective, or for any other reason) such Lender shall indemnify and hold
Agent harmless (or, in the case of a Participant, such Participant shall indemnify and hold the Lender granting the participation
harmless) for all amounts paid, directly or indirectly, by Agent (or, in the case of a Participant, to the Lender granting the
participation), as tax or otherwise, including penalties and interest, and including any taxes imposed by any jurisdiction on the
amounts payable to Agent (or, in the case of a Participant, to the Lender granting the participation only) under this Section 16,
together with all costs and expenses (including attorneys’ fees and expenses). The obligation of the Lenders and the Participants
under this subsection shall survive the payment of all Obligations and the resignation or replacement of Agent.


 


16.4         
Refunds. If Agent or a Lender determines, in its sole discretion,
that it has received a refund of any Indemnified Taxes to which the Loan Parties have paid additional amounts pursuant to this
Section 16, so long as no Default or Event of Default has occurred and is continuing, it shall pay over such refund to the
Administrative Borrower on behalf of the Loan Parties (but only to the extent of payments made, or additional amounts paid, by
the Loan Parties under this Section 16 with respect to Indemnified Taxes giving rise to such a refund), net of all out-of-pocket
expenses of Agent or such Lender and without interest (other than any interest paid by the applicable Governmental Authority with
respect to such a refund); provided, that the Loan Parties, upon the request of Agent or such Lender, agrees to repay the
amount paid over to the Loan Parties (plus any penalties, interest or other charges, imposed by the applicable Governmental Authority,
other than such penalties, interest or other charges imposed as a result of the willful misconduct or gross negligence of Agent
or Lender hereunder as finally determined by a court of competent jurisdiction) to Agent or such Lender in the event Agent or such
Lender is required to repay such refund to such Governmental Authority. Notwithstanding anything in this Agreement to the contrary,
this Section 16 shall not be construed to require Agent or any Lender to make available its tax returns (or any other information
which it deems confidential) to Loan Parties or any other Person or require Agent or any Lender to pay any amount to an indemnifying
party pursuant to Section 16.4, the payment of which would place Agent or such Lender (or their Affiliates) in a less favorable
net after-Tax position than such Person would have been in if the Tax subject to indemnification and giving rise to such refund
had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such
Tax had never been paid.


 


17.            
GENERAL PROVISIONS.


 


17.1         
Effectiveness. This Agreement shall be binding and deemed effective
when executed by each Borrower, Agent, and each Lender whose signature is provided for on the signature pages hereof.


 


17.2         
Section Headings. Headings and numbers have been set forth herein
for convenience only. Unless the contrary is compelled by the context, everything contained in each Section applies equally to
this entire Agreement.


 


17.3         
Interpretation. Neither this Agreement nor any uncertainty or
ambiguity herein shall be construed against the Lender Group or any Borrower, whether under any rule of construction or otherwise.
On the contrary, this Agreement has been reviewed by all parties and shall be construed and interpreted according to the ordinary
meaning of the words used so as to accomplish fairly the purposes and intentions of all parties hereto.


 


 


 






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17.4         
Severability of Provisions. Each provision of this Agreement
shall be severable from every other provision of this Agreement for the purpose of determining the legal enforceability of any
specific provision.


 


17.5         
Bank Product Provider. The Bank Product Provider in its capacity
as such shall be deemed a third party beneficiary hereof and of the provisions of the other Loan Documents for purposes of any
reference in a Loan Document to the parties for whom Agent is acting. Agent hereby agrees to act as agent for such Bank Product
Provider and, by virtue of entering into a Bank Product Agreement, the applicable Bank Product Provider shall be automatically
deemed to have appointed Agent as its agent and to have accepted the benefits of the Loan Documents. It is understood and agreed
that the rights and benefits of each Bank Product Provider under the Loan Documents consist exclusively of such Bank Product Provider’s
being a beneficiary of the Liens and security interests (and, if applicable, guarantees) granted to Agent and the right to share
in payments and collections out of the Collateral as more fully set forth herein. In addition, each Bank Product Provider, by virtue
of entering into a Bank Product Agreement, shall be automatically deemed to have agreed that Agent shall have the right, but shall
have no obligation, to establish, maintain, relax, or release reserves in respect of the Bank Product Obligations and that if reserves
are established there is no obligation on the part of Agent to determine or insure whether the amount of any such reserve is appropriate
or not. In connection with any such distribution of payments or proceeds of Collateral, Agent shall be entitled to assume no amounts
are due or owing to any Bank Product Provider unless such Bank Product Provider has provided a written certification (setting forth
a reasonably detailed calculation) to Agent as to the amounts that are due and owing to it and such written certification is received
by Agent a reasonable period of time prior to the making of such distribution. Agent shall have no obligation to calculate the
amount due and payable with respect to any Bank Products, but may rely upon the written certification of the amount due and payable
from the applicable Bank Product Provider. In the absence of an updated certification, Agent shall be entitled to assume that the
amount due and payable to the applicable Bank Product Provider is the amount last certified to Agent by such Bank Product Provider
as being due and payable (less any distributions made to such Bank Product Provider on account thereof). Borrowers may obtain Bank
Products from any Bank Product Provider, although Borrowers are not required to do so. Each Borrower acknowledges and agrees that
no Bank Product Provider has committed to provide any Bank Products and that the providing of Bank Products by any Bank Product
Provider is in the sole and absolute discretion of such Bank Product Provider. Notwithstanding anything to the contrary in this
Agreement or any other Loan Document, no provider or holder of any Bank Product shall have any voting or approval rights hereunder
(or be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations
owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities as Lenders,
to the extent applicable) for any matter hereunder or under any of the other Loan Documents, including as to any matter relating
to the Collateral or the release of Collateral or Guarantors.


 


17.6         
Debtor-Creditor Relationship. The relationship between the Lenders
and Agent, on the one hand, and the Loan Parties, on the other hand, is solely that of creditor and debtor. No member of the Lender
Group has (or shall be deemed to have) any fiduciary relationship or duty to any Loan Party arising out of or in connection with
the Loan Documents or the transactions contemplated thereby, and there is no agency or joint venture relationship between the members
of the Lender Group, on the one hand, and the Loan Parties, on the other hand, by virtue of any Loan Document or any transaction
contemplated therein.


 


 


 






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17.7         
Counterparts; Electronic Execution. This Agreement may be executed
in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, shall
be deemed to be an original, and all of which, when taken together, shall constitute but one and the same Agreement. Delivery of
an executed counterpart of this Agreement by telefacsimile or other electronic method of transmission shall be equally as effective
as delivery of an original executed counterpart of this Agreement. Any party delivering an executed counterpart of this Agreement
by telefacsimile or other electronic method of transmission also shall deliver an original executed counterpart of this Agreement
but the failure to deliver an original executed counterpart shall not affect the validity, enforceability, and binding effect of
this Agreement. The foregoing shall apply to each other Loan Document mutatis mutandis.


 


17.8         
Revival and Reinstatement of Obligations; Certain Waivers.


 


(a)   
If any member of the Lender Group or any Bank Product Provider repays, refunds, restores,
or returns in whole or in part, any payment or property (including any proceeds of Collateral) previously paid or transferred to
such member of the Lender Group or such Bank Product Provider in full or partial satisfaction of any Obligation or on account of
any other obligation of any Loan Party under any Loan Document or any Bank Product Agreement, because the payment, transfer, or
the incurrence of the obligation so satisfied is asserted or declared to be void, voidable, or otherwise recoverable under any
law relating to creditors’ rights, including provisions of the Bankruptcy Code relating to fraudulent transfers, preferences,
or other voidable or recoverable obligations or transfers (each, a “Voidable Transfer”), or because such member
of the Lender Group or Bank Product Provider elects to do so on the reasonable advice of its counsel in connection with a claim
that the payment, transfer, or incurrence is or may be a Voidable Transfer, then, as to any such Voidable Transfer, or the amount
thereof that such member of the Lender Group or Bank Product Provider elects to repay, restore, or return (including pursuant to
a settlement of any claim in respect thereof), and as to all reasonable costs, expenses, and attorneys’ fees of such member
of the Lender Group or Bank Product Provider related thereto, (i) the liability of the Loan Parties with respect to the amount
or property paid, refunded, restored, or returned will automatically and immediately be revived, reinstated, and restored and will
exist, and (ii) Agent’s Liens securing such liability shall be effective, revived, and remain in full force and effect, in
each case, as fully as if such Voidable Transfer had never been made. If, prior to any of the foregoing, (A) Agent’s Liens
shall have been released or terminated, or (B) any provision of this Agreement shall have been terminated or cancelled, Agent’s
Liens, or such provision of this Agreement, shall be reinstated in full force and effect and such prior release, termination, cancellation
or surrender shall not diminish, release, discharge, impair or otherwise affect the obligation of any Loan Party in respect of
such liability or any Collateral securing such liability. This provision shall survive the termination of this Agreement and the
repayment in full of the Obligations.


 


(b)  
Anything to the contrary contained herein notwithstanding, if Agent or any Lender
accepts a guaranty of only a portion of the Obligations pursuant to any guaranty, each Borrower hereby waive its right under Section
2822(a) of the California Civil Code or any similar laws of any other applicable jurisdiction to designate the portion of the Obligations
satisfied by the applicable guarantor’s partial payment.


 


17.9         
Confidentiality.


 


(a)   
Agent and Lenders each individually (and not jointly or jointly and severally) agree
that material, non-public information regarding the Loan Parties and their Subsidiaries, their operations, assets, and existing
and contemplated business plans (“Confidential Information”) shall be treated by Agent and the Lenders in a
confidential manner, and shall not be disclosed by Agent and the Lenders to Persons who are not parties to this Agreement, except:
(i) to attorneys for and other advisors, accountants, auditors,


 


 






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and consultants to any member of the Lender Group and to employees,
directors and officers of any member of the Lender Group (the Persons in this clause (i), “Lender Group Representatives”)
on a “need to know” basis in connection with this Agreement and the transactions contemplated hereby and on a confidential
basis, (ii) to Subsidiaries and Affiliates of any member of the Lender Group (including the Bank Product Provider); provided,
that any such Subsidiary or Affiliate shall have agreed to receive such information hereunder subject to the terms of this Section
17.9, (iii) as may be required by regulatory authorities so long as such authorities are informed of the confidential nature
of such information, (iv) as may be required by statute, decision, or judicial or administrative order, rule, or regulation; provided,
that (x) prior to any disclosure under this clause (iv), the disclosing party agrees to provide Borrowers with prior notice thereof,
to the extent that it is practicable to do so and to the extent that the disclosing party is permitted to provide such prior notice
to Borrowers pursuant to the terms of the applicable statute, decision, or judicial or administrative order, rule, or regulation
and (y) any disclosure under this clause (iv) shall be limited to the portion of the Confidential Information as may be required
by such statute, decision, or judicial or administrative order, rule, or regulation, (v) as may be agreed to in advance in writing
by Borrowers, (vi) as requested or required by any Governmental Authority pursuant to any subpoena or other legal process; provided,
that (x) prior to any disclosure under this clause (vi) the disclosing party agrees to provide Borrowers with prior written notice
thereof, to the extent that it is practicable to do so and to the extent that the disclosing party is permitted to provide such
prior written notice to Borrowers pursuant to the terms of the subpoena or other legal process and (y) any disclosure under this
clause (vi) shall be limited to the portion of the Confidential Information as may be required by such Governmental Authority pursuant
to such subpoena or other legal process, (vii) as to any such information that is or becomes generally available to the public
(other than as a result of prohibited disclosure by Agent or the Lenders or the Lender Group Representatives), (viii) in connection
with any assignment, participation or pledge of any Lender’s interest under this Agreement; provided, that prior to receipt
of Confidential Information any such assignee, participant, or pledgee shall have agreed in writing to receive such Confidential
Information either subject to the terms of this Section 17.9 or pursuant to confidentiality requirements substantially similar
to those contained in this Section 17.9 (and such Person may disclose such Confidential Information to Persons employed
or engaged by them as described in clause (i) above), (ix) in connection with any litigation or other adversary proceeding involving
parties hereto which such litigation or adversary proceeding involves claims related to the rights or duties of such parties under
this Agreement or the other Loan Documents; provided, that prior to any disclosure to any Person (other than any Loan Party,
Agent, any Lender, any of their respective Affiliates, or their respective counsel) under this clause (ix) with respect to litigation
involving any Person (other than any Borrower, Agent, any Lender, any of their respective Affiliates, or their respective counsel),
the disclosing party agrees to provide Borrowers with prior written notice thereof, and (x) in connection with, and to the extent
reasonably necessary for, the exercise of any secured creditor remedy under this Agreement or under any other Loan Document.


 


(b)  
Anything in this Agreement to the contrary notwithstanding, Agent may disclose information
concerning the terms and conditions of this Agreement and the other Loan Documents to loan syndication and pricing reporting services
or in its marketing or promotional materials, with such information to consist of deal terms and other information customarily
found in such publications or marketing or promotional materials and may otherwise use the name, logos, and other insignia of any
Borrower or the other Loan Parties and the Commitments provided hereunder in any “tombstone” or other advertisements,
on its website or in other marketing materials of the Agent.


 


(c)   
Each Loan Party agrees that Agent may make available to the Lenders materials or
information provided by or on behalf of Borrowers hereunder (“Borrower Materials”) by posting the Communications
on IntraLinks, SyndTrak or a substantially similar secure electronic transmission system (the “Platform”). The
Platform is provided “as is” and “as available.” Agent does not warrant the accuracy or completeness of
the Borrower Materials, or the adequacy of the Platform and expressly disclaim liability for errors or omissions in the communications.
No warranty of any kind, express, implied or statutory, including, without limitation, any warranty of merchantability, fitness
for a particular purpose, non-infringement of third party rights or freedom from viruses or other code defects, is made by Agent
in connection with the Borrower Materials or the Platform. In no event shall Agent or any of the Agent-Related Persons have any
liability to the Loan Parties, any Lender or any other person for damages of any kind, including direct or indirect, special, incidental
or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of any Loan Party’s or
Agent’s transmission of communications through the Internet, except to the extent the liability of such person is found in
a final non-appealable judgment by a court of competent jurisdiction to have resulted from such person’s gross negligence
or willful misconduct. Each Loan Party further agrees that certain of the Lenders may be “public-side” Lenders (i.e.,
Lenders that do not wish to receive material non-public information with respect to the Loan Parties or their securities) (each,
a “Public Lender”). The Loan Parties shall be deemed to have authorized Agent and its Affiliates and the Lenders
to treat Borrower Materials marked “PUBLIC” or otherwise at any time filed with the SEC as not containing any material
non-public information with respect to the Loan Parties or their securities for purposes of United States federal and state securities
laws. All Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated
as “Public Investor” (or another similar term). Agent and its Affiliates and the Lenders shall be entitled to treat
any Borrower Materials that are not marked “PUBLIC” or that are not at any time filed with the SEC as being suitable
only for posting on a portion of the Platform not marked as “Public Investor” (or such other similar term).


 


 


 






    	 	124	 



     


    

 


17.10      
Survival. All representations and warranties made by the Loan
Parties in the Loan Documents and in the certificates or other instru¬ments delivered in connection with or pursuant to this
Agreement or any other Loan Document shall be considered to have been relied upon by the other parties hereto and shall survive
the execution and delivery of the Loan Documents and the making of any Loans and issuance of any Letters of Credit, regardless
of any investigation made by any such other party or on its behalf and notwithstanding that Agent, Issuing Bank, or any Lender
may have had notice or knowledge of any Default or Event of Default or incorrect representation or warranty at the time any credit
is extended hereunder, and shall continue in full force and effect as long as the principal of, or any accrued interest on, any
Loan or any fee or any other amount payable under this Agreement is outstand¬ing or unpaid or any Letter of Credit is outstanding
and so long as the Commitments have not expired or been terminated.


 


17.11      
Patriot Act; Due Diligence. Each Lender that is subject to the
requirements of the Patriot Act hereby notifies the Loan Parties that pursuant to the requirements of the Patriot Act, it is required
to obtain, verify and record information that identifies each Loan Party, which information includes the name and address of each
Loan Party and other information that will allow such Lender to identify each Loan Party in accordance with the Patriot Act. In
addition, Agent and each Lender shall have the right to periodically conduct due diligence on all Loan Parties, their senior management
and key principals and legal and beneficial owners. Each Loan Party agrees to cooperate in respect of the conduct of such due diligence
and further agrees that the reasonable costs and charges for any such due diligence by Agent shall constitute Lender Group Expenses
hereunder and be for the account of Borrowers.


 


17.12      
Integration. This Agreement, together with the other Loan Documents,
reflects the entire understanding of the parties with respect to the transactions contemplated hereby and shall not be contradicted
or qualified by any other agreement, oral or written, before the date hereof. The foregoing to the contrary notwithstanding, all
Bank Product Agreements, if any, are independent agreements governed by the written provisions of such Bank Product Agreements,
which will remain in full force and effect, unaffected by any repayment, prepayments, acceleration, reduction, increase, or change
in the terms of any credit extended hereunder, except as otherwise expressly provided in such Bank Product Agreement.


 


 


 






    	 	125	 



     


    

 


17.13      
Kinergy as Agent for Borrowers. Each Borrower hereby irrevocably
appoints Kinergy as the borrowing agent and attorney-in-fact for all Borrowers (the “Administrative Borrower”)
which appointment shall remain in full force and effect unless and until Agent shall have received prior written notice signed
by each Borrower that such appointment has been revoked and that another Borrower has been appointed Administrative Borrower. Each
Borrower hereby irrevocably appoints and authorizes the Administrative Borrower (a) to provide Agent with all notices with respect
to Revolving Loans and Letters of Credit obtained for the benefit of any Borrower and all other notices and instructions under
this Agreement and the other Loan Documents (and any notice or instruction provided by Administrative Borrower shall be deemed
to be given by Borrowers hereunder and shall bind each Borrower), (b) to receive notices and instructions from members of the Lender
Group (and any notice or instruction provided by any member of the Lender Group to the Administrative Borrower in accordance with
the terms hereof shall be deemed to have been given to each Borrower), and (c) to take such action as the Administrative Borrower
deems appropriate on its behalf to obtain Revolving Loans and Letters of Credit and to exercise such other powers as are reasonably
incidental thereto to carry out the purposes of this Agreement. It is understood that the handling of the Loan Account and Collateral
in a combined fashion, as more fully set forth herein, is done solely as an accommodation to Borrowers in order to utilize the
collective borrowing powers of Borrowers in the most efficient and economical manner and at their request, and that Lender Group
shall not incur liability to any Borrower as a result hereof. Each Borrower expects to derive benefit, directly or indirectly,
from the handling of the Loan Account and the Collateral in a combined fashion since the successful operation of each Borrower
is dependent on the continued successful performance of the integrated group. To induce the Lender Group to do so, and in consideration
thereof, each Borrower hereby jointly and severally agrees to indemnify each member of the Lender Group and hold each member of
the Lender Group harmless against any and all liability, expense, loss or claim of damage or injury, made against the Lender Group
by any Borrower or by any third party whosoever, arising from or incurred by reason of (i) the handling of the Loan Account and
Collateral of Borrowers as herein provided, or (ii) the Lender Group’s relying on any instructions of the Administrative
Borrower, except that Borrowers will have no liability to the relevant Agent-Related Person or Lender-Related Person under this
Section 17.13 with respect to any liability that has been finally determined by a court of competent jurisdiction to have
resulted solely from the gross negligence or willful misconduct of such Agent-Related Person or Lender-Related Person, as the case
may be.


 


17.14      
Acknowledgement and Consent to Bail-In of EEA Financial Institutions.
Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any
such parties, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Loan Document,
to the extent such liability is unsecured, may be subject to the write-down and conversion powers of an EEA Resolution Authority
and agrees and consents to, and acknowledges and agrees to be bound by:


 


(a)   
the application of any Write-Down and Conversion Powers by an EEA Resolution Authority
to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution;
and


 


(b)  
the effects of any Bail-in Action on any such liability, including, if applicable:


 


(i)        
a reduction in full or in part or cancellation of any such liability;


 


(ii)      
a conversion of all, or a portion of, such liability into shares or other instruments
of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise
conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect
to any such liability under this Agreement or any other Loan Document; or


 


 


 






    	 	126	 



     


    

 


(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.


 


17.15      
Amendment and Restatement.


 


The terms, conditions, agreements, covenants,
representations and warranties set forth in the Existing Loan Agreement are, effective as of the Closing Date, amended and restated
in their entirety, and as so amended and restated, replaced and superseded by, the terms, conditions agreements, covenants, representations
and warranties set forth in this Agreement; provided, that, nothing herein or in the other Financing Agreements shall,
in any manner, be construed to constitute payment of, or impair, limit, cancel or extinguish, or constitute a novation in respect
of any of the “Obligations” existing under (and as defined in) the Existing Loan Agreement (the “Existing Obligations”)
or any other obligations, liabilities and indebtedness of the Borrowers evidenced by or arising under the Existing Loan Agreement
or impair or adversely affect the continuation of the security interests, liens and other interests in the Collateral heretofore
granted, pledged and/or assigned by the Borrowers to Agent pursuant to or in connection with the Existing Loan Agreement. All Existing
Obligations of Borrowers to Agent and Lenders, and all other loans, advances and other financial accommodations under the Existing
Loan Agreement, that are outstanding and unpaid as of the date hereof pursuant to the Existing Loan Agreement (including, without
limitation, all Existing Obligations now or hereafter arising in connection with the Existing Letters of Credit) shall be deemed
Obligations of Borrowers under this Agreement which are secured by Liens in the Collateral pursuant to the terms of this Agreement.


 


[Signature pages to follow.]


 







 


 


 


 


 


 


 


 


 


 






    	 	127	 



     


    

 





IN WITNESS WHEREOF, the parties hereto
have caused this Agreement to be executed and delivered as of the date first above written.


 


	 	 
	BORROWERS:	KINERGY MARKETING LLC, an Oregon limited liability company
	 	 
	 	By: /s/ Bryon T. McGregor
	 	Name:  Bryon T. McGregor
	 	Title: Chief Financial Officer
	 	 
	 	PACIFIC AG. PRODUCTS, LLC, a California limited liability company
	 	 
	 	By: /s/ Bryon T. McGregor
	 	Name:  Bryon T. McGregor
	 	Title: Chief Financial Officer
	 	 


 









 


 


 


 


 


 


 


 


 


 


 


 


[SIGNATURE PAGE TO CREDIT
AGREEMENT]


 


 






    	 	 	 



     


    

 


 





	 	WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as Agent, as Lead Arranger, as Book Runner, as Syndication Agent, as Documentation Agent, and as a Lender
	 	 
	 	By:      /s/ Carlos Valles
	 	Name: Carlos Valles
	 	            Its Authorized Signatory




 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


[SIGNATURE PAGE TO CREDIT
AGREEMENT]






    	 	 	 



     


    

 





EXHIBIT A-1




FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT


 





This ASSIGNMENT AND ACCEPTANCE AGREEMENT
(“Assignment Agreement”) is entered into as of __________ between __________ (“Assignor”)
and __________ (“Assignee”). Reference is made to the Agreement described in Annex I hereto (the “Credit
Agreement”). Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the
Credit Agreement.


 


1.     
In accordance with the terms and conditions of Section 13 of the Credit Agreement, the Assignor hereby sells
and assigns to the Assignee, and the Assignee hereby purchases and assumes from the Assignor, that interest in and to the Assignor's
rights and obligations under the Loan Documents as of the date hereof with respect to the Obligations owing to the Assignor, and
Assignor’s portion of the Commitments, all to the extent specified on Annex I.


 


2.     
The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the interest being assigned
by it hereunder and that such interest is free and clear of any adverse claim and (ii) it has full power and authority, and has
taken all action necessary, to execute and deliver this Assignment Agreement and to consummate the transactions contemplated hereby;
(b) makes no representation or warranty and assumes no responsibility with respect to (i) any statements, representations or warranties
made in or in connection with the Loan Documents, or (ii) the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Loan Documents or any other instrument or document furnished pursuant thereto; (c) makes no representation or warranty
and assumes no responsibility with respect to the financial condition of any Borrower or any Guarantor or the performance or observance
by any Borrower or any Guarantor of any of their respective obligations under the Loan Documents or any other instrument or document
furnished pursuant thereto, and (d) represents and warrants that the amount set forth as the Purchase Price on Annex I represents
the amount owed by Borrowers to Assignor with respect to Assignor’s share of the Term Loan and the Revolving Loans assigned
hereunder, as reflected on Assignor’s books and records.


 


3.     
The Assignee (a) confirms that it has received copies of the Credit Agreement and the other Loan Documents, together
with copies of the financial statements referred to therein and such other documents and information as it has deemed appropriate
to make its own credit analysis and decision to enter into this Assignment Agreement; (b) agrees that it will, independently and
without reliance upon Agent, Assignor, or any other Lender, based upon such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking any action under the Loan Documents; (c) [confirms
that it is an Eligible Transferee;] (d) appoints and authorizes the Agent to take such action as agent on its behalf and to exercise
such powers under the Loan Documents as are delegated to Agent by the terms thereof, together with such powers as are reasonably
incidental thereto; (e) agrees that it will perform in accordance with their terms all of the obligations which by the terms of
the Loan Documents are required to be performed by it as a Lender; [and (f) attaches the forms prescribed by the Internal Revenue
Service of the United States certifying as to the Assignee's status for purposes of determining exemption from United States withholding
taxes with respect to all payments to be made to the Assignee under the Credit Agreement or such other documents as are necessary
to indicate that all such payments are subject to such rates at a rate reduced by an applicable tax treaty.]


 


4.     
Following the execution of this Assignment Agreement by the Assignor and Assignee, the Assignor will deliver this
Assignment Agreement to the Agent for recording by the Agent. The effective date of this Assignment (the “Settlement Date”)
shall be the latest to occur of (a) the date of the execution and delivery hereof by the Assignor and the Assignee, (b) the receipt
by Agent for its sole and separate account a processing fee in the amount of $3,500 (if required by the Credit Agreement), (c)
the receipt of any required consent of the Agent, and (d) the date specified in Annex I.


 


 


 






    	 	 	 



     


    


 


5.     
As of the Settlement Date (a) the Assignee shall be a party to the Credit Agreement and, to the extent of the interest
assigned pursuant to this Assignment Agreement, have the rights and obligations of a Lender thereunder and under the other Loan
Documents, and (b) the Assignor shall, to the extent of the interest assigned pursuant to this Assignment Agreement, relinquish
its rights and be released from its obligations under the Credit Agreement and the other Loan Documents, provided, however,
that nothing contained herein shall release any assigning Lender from obligations that survive the termination of the Credit Agreement,
including such assigning Lender’s obligations under Article 15 and Section 17.9(a) of the Credit Agreement.


 


6.     
Upon the Settlement Date, Assignee shall pay to Assignor the Purchase Price (as set forth in Annex I). From
and after the Settlement Date, Agent shall make all payments that are due and payable to the holder of the interest assigned hereunder
(including payments of principal, interest, fees and other amounts) to Assignor for amounts which have accrued up to but excluding
the Settlement Date and to Assignee for amounts which have accrued from and after the Settlement Date. On the Settlement Date,
Assignor shall pay to Assignee an amount equal to the portion of any interest, fee, or any other charge that was paid to Assignor
prior to the Settlement Date on account of the interest assigned hereunder and that are due and payable to Assignee with respect
thereto, to the extent that such interest, fee or other charge relates to the period of time from and after the Settlement Date.


 


7.     
This Assignment Agreement may be executed in counterparts and by the parties hereto in separate counterparts, each
of which when so executed and delivered shall be an original, but all of which shall together constitute one and the same instrument.
This Assignment Agreement may be executed and delivered by telecopier or other facsimile transmission all with the same force and
effect as if the same were a fully executed and delivered original manual counterpart.


 


8.     
THIS ASSIGNMENT AGREEMENT SHALL BE SUBJECT TO THE PROVISIONS REGARDING CHOICE OF LAW AND VENUE, JURY TRIAL WAIVER,
AND JUDICIAL REFERENCE SET FORTH IN SECTION 12 OF THE CREDIT AGREEMENT, AND SUCH PROVISIONS ARE INCORPORATED HEREIN BY
THIS REFERENCE, MUTATIS MUTANDIS.


 


 


 


 


 


 


 


 


 


 






    	 	 	 



     


    

 





IN WITNESS WHEREOF, the parties hereto have caused
this Assignment Agreement and Annex I hereto to be executed by their respective officers, as of the first date written above.


 


	 	[NAME OF ASSIGNOR],
	 	 
	 	as Assignor
	 	 
	 	By  _____________________________
	 	       Name:
	 	       Title:
	 	 
	 	 
	 	[NAME OF ASSIGNEE],
	 	 
	 	as Assignee
	 	 
	 	By  _____________________________
	 	       Name:
	 	       Title:
	 	 


 


ACCEPTED THIS ____ DAY OF

_______________



Wells Fargo BANK, NATIONAL

Association, a national banking


association, as Agent, as Swing Lender and as Issuing Bank



By  _____________________________


       Name:


       Title:


 


 


[[____________],
[as Swing Lender] [and] [as Issuing Bank]



By  ________________________


       Name:


       Title:]


 


 


[[ADMINISTRATIVE BORROWER]






By  _____________________________


       Name:


        Title:]


 


 


 


 


  






    	 	 	 



     


    

 





ANNEX FOR ASSIGNMENT AND ACCEPTANCE



ANNEX I


 


	1.	Borrowers:  KINERGY MARKETING LLC, an Oregon limited liability company, PACIFIC AG. PRODUCTS, LLC, a California limited liability company, and their Subsidiaries from time to time party to the Credit Agreement
	 	 
	2.	Name and Date of Credit Agreement:


 


Second Amended and Restated Credit Agreement dated
as of August 2, 2017 (as amended, restated, supplemented, or otherwise modified from time to time, the “Credit Agreement”)
by and among Pacific Ethanol, Inc., as Parent, Borrowers, the lenders party thereto as “Lenders”, and Wells Fargo Bank,
National Association, a national banking association (“Wells Fargo”), as sole Lead Arranger (in such capacity,
together with its successors and assigns in such capacity, the “Lead Arranger”), Book Runner (in such capacity,
together with its successors and assigns in such capacity, the “Book Runner”), syndication agent (in such capacity,
together with is successors and assigns in such capacity, the “Syndication Agent”), and Documentation Agent
(in such capacity, together with its successors and assigns in such capacity, the “Documentation Agent”).


 


	3.	Date of Assignment Agreement:	_______
	 	 	 
	4.	Amounts:	 
	 	 	 
	 	a.    Assigned Amount of Revolver Commitment	$_______
	 	 	 
	 	b.   Assigned Amount of Revolving Loans	$_______
	 	 	 
	 	b.   [Assigned Amount of Term Loan 	$_______]
	 	 	 
	5.	Settlement Date:	_______
	 	 	 
	6.	Purchase Price	$______
	 	 	 
	7.	Notice and Payment Instructions, etc.	 


 


	Assignee:	 	Assignor:
	 	 	 
	 	 	 
	 	 	 


 


 




 






    	 	 	 



     


    

 





EXHIBIT B-1


FORM OF BORROWING BASE CERTIFICATE


 


 


 


On file with Agent.


 


 


 


 


 


 


 


 


 


 






    	 	 	 



     


    

 





EXHIBIT C-1


 


FORM OF COMPLIANCE CERTIFICATE


 


[on Administrative Borrower’s letterhead]


 


 


	To:	Wells Fargo Bank, National Association
	 	2450 Colorado Avenue, Suite 3000 West
	 	Santa Monica, California 90404
	 	Attn:  ________________________


 


Re:          Compliance
Certificate dated ____________ __, 201__


 


Ladies and Gentlemen:


 


Reference is hereby made to that certain Second
Amended and Restated Credit Agreement, dated August 2, 2017 (as amended, restated, supplemented, or otherwise modified from time
to time, the “Credit Agreement”), by and among KINERGY MARKETING LLC, an Oregon limited liability company (“Kinergy”),
PACIFIC AG, PRODUCTS, LLC, a California limited liability company (“Pacific Ag” and, together with Kinergy,
each, a “Borrower” and individually and collectively, jointly and severally, the “Borrowers”),
the lenders party thereto as “Lenders” (each of such Lenders, together with its successors and assigns, is referred
to hereinafter as a “Lender”), and Agent. Capitalized terms used herein, but not specifically defined herein,
shall have the meanings ascribed to them in the Credit Agreement.


 


Pursuant to Section 5.1 of the Credit Agreement,
the undersigned officer of Administrative Borrower hereby certifies as of the date hereof that:


 


1.     
The financial information of Borrowers and their Subsidiaries furnished in Schedule 1 attached hereto has
been prepared in accordance with GAAP (except, in the case of unaudited financial statements, for year-end audit adjustments and
the lack of footnotes), and fairly presents in all material respects the financial condition of Borrowers and their Subsidiaries
as of the date set forth therein.


 


2.     
Such officer has reviewed the terms of the Credit Agreement and has made, or caused to be made under his/her supervision,
a review in reasonable detail of the transactions and financial condition of Borrowers and their Subsidiaries during the accounting
period covered by the financial statements delivered pursuant to Section 5.1 of the Credit Agreement.


 


 


3.     
Such review has not disclosed the existence on and as of the date hereof, and the undersigned does not have knowledge
of the existence as of the date hereof, of any event or condition that constitutes a Default or Event of Default, except for such
conditions or events listed on Schedule 2 attached hereto, in each case specifying the nature and period of existence thereof
and what action Borrowers and/or their Subsidiaries have taken, are taking, or propose to take with respect thereto.


 


 


 






    	 	 	 



     


    

 


 


4.     
Except as set forth on Schedule 3 attached hereto, the representations and warranties of Parent, Borrowers
and their Subsidiaries set forth in the Credit Agreement and the other Loan Documents are true and correct in all material respects
(except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified
or modified by materiality in the text thereof) on and as of the date hereof (except to the extent that such representations and
warranties relate solely to an earlier date, in which case such representations and warranties shall be true and correct in all
material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already
are qualified or modified by materiality in the text thereof) as of such earlier date.


 


5.     
As of the date hereof, each Borrower and their Subsidiaries are, on a collective basis, in compliance with the applicable
covenants contained in Section 7 of the Credit Agreement as demonstrated on Schedule 4 hereof.


 


 


 


 


[Signature page follows.]




 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 






    	 	 	 



     


    

 





IN WITNESS WHEREOF, this Compliance Certificate
is executed by the undersigned this ____ day of _______________, 20___.


 


	 	
        KINERGY MARKETING, LLC,

        as Administrative Borrower

         

         

        By:__________________

        Name: ________________

        Title: _________________

         

	 	 


 


 


 


 


 


 


 


 


 


 


 




    	 	 	 



     


    


SCHEDULE 1


 


Financial Information


 


 


 


 


 


 


 


 


 


 


 




    	 	 	 



     


    


SCHEDULE 2


 


Default or Event of Default


 


 


 


 


 


 


 


 


 


 


 




    	 	 	 



     


    


SCHEDULE 3


 


Representations and Warranties


 


 


 


 


 


 


 


 


 


 


 




    	 	 	 



     


    


SCHEDULE 4


 


Financial Covenants


 


1.    
Fixed Charge Coverage Ratio.


 


Borrowers’ and their Subsidiaries’
Fixed Charge Coverage Ratio, measured on a month-end basis, for the 12 month period ending ____________ ___, 20___, is ___:1.0,
which ratio [is/is not] greater than or equal to the ratio set forth in Section 7) of the Credit Agreement for the corresponding
period.


 




 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 






    	 	 	 



     


    

 





EXHIBIT J-1


 


[FORM OF] JOINDER AGREEMENT


 


This JOINDER AGREEMENT (this “Agreement”),
is entered into as of ______ __, 20__, by and among ___________, a ________ (“New Borrower”), and WELLS FARGO
BANK, NATIONAL ASSOCIATION, a national banking association (“Wells Fargo”), as administrative agent for
each member of the Lender Group and the Bank Product Providers (in such capacity, together with its successors and assigns in such
capacity, “Agent”).


 


W I T N E S S E T H:


 


WHEREAS, pursuant to that certain Second
Amended and Restated Credit Agreement, dated August 2, 2017 (as amended, restated, supplemented, or otherwise modified from time
to time, the “Credit Agreement”), by and among KINERGY MARKETING LLC, an Oregon limited liability company (“Kinergy”),
PACIFIC AG. PRODUCTS, LLC, a California limited liability company (“Pacific Ag” and, together with Kinergy,
each, a “Borrower” and individually and collectively, jointly and severally, the “Borrowers”),
the lenders party thereto as “Lenders” (each of such Lenders, together with its successors and assigns, is referred
to hereinafter as a “Lender”), and Agent, and those additional Persons that are joined as a party to the Credit
Agreement by executing the form of Joinder attached thereto as Exhibit J-1, each, a “Borrower” and individually
and collectively, jointly and severally, the “Borrowers”), the Lender Group has agreed to make or issue Loans,
Letters of Credit and other certain financial accommodations thereunder;


 


WHEREAS, initially capitalized terms
used but not defined herein shall have the meanings ascribed to such terms in the Credit Agreement;


 


[WHEREAS, pursuant to that certain Fee
Letter, dated as of _______, 20__ (as amended, restated, supplemented or otherwise modified from time to the, the “Fee
Letter”), by and among Borrowers and Agent, each Borrower has agreed to pay certain fees to Agent on the terms set forth
therein;]


 


WHEREAS, New Borrower is required to
become a party to the Credit Agreement by, among other things, executing and delivering this Agreement to Agent; and


 


WHEREAS, New Borrower has determined
that the execution, delivery and performance of this Agreement directly benefit, and are within the corporate purposes and in the
best interests of, New Borrower, by virtue of the financial accommodations available to New Borrower from time to time pursuant
to the terms and conditions of the Credit Agreement.


 


NOW, THEREFORE, in consideration of the
foregoing and the mutual covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, each of the parties hereto hereby agrees as follow:


 


1.       Joinder
of New Borrower to the Credit Agreement. By its execution of this Agreement, New Borrower hereby (a) agrees that from and after
the date of this Agreement it shall be a party to the Credit Agreement as a “Borrower” and shall be bound by all of
the terms, conditions, covenants, agreements and obligations set forth in the Credit Agreement, (b) accepts joint and several liability
for the Obligations pursuant to the terms of the Loan Documents, and (c) confirms that, after giving effect to the supplement to
the Schedules to the Credit Agreement provided for in Section 2 below, the representations and warranties contained in Section
4 of the Credit Agreement are true and correct as they relate to New Borrower as of the date this Agreement. In furtherance
of the foregoing, New Borrower hereby makes, as of the date of this Agreement, each representation and warranty contained in the
Credit Agreement, including, without limitation, Section 4 of the Credit Agreement. New Borrower hereby agrees that each
reference to a “Borrower” or the “Borrowers” in the Credit Agreement and the other Loan Documents shall
include New Borrower. New Borrower acknowledges that it has received a copy of the Credit Agreement and the other Loan Documents
and that it has read and understands the terms thereof.


 


 


 




    	 	 	 



     


    



 


2.       Updated
Schedules. Attached as Exhibit A hereto are updated copies of each of Schedule 4.1(b) and Schedule 4.1(c)
to the Credit Agreement revised to include all information required to be provided therein with respect to New Borrower. Each
such Schedule shall be attached to the Credit Agreement, and on and after the date hereof all references in any Loan Document
to any such Schedule to the Credit Agreement shall mean such Schedule as so amended; provided, that any use of the term
“as of the date hereof” or any term of similar import, in any provision of the Credit Agreement relating to New Borrower
or any of the information amended by such Schedule hereby, shall be deemed to refer to the date of this Agreement.


 


3.       Joinder
of New Borrower to the Fee Letter. By its execution of this Agreement, New Borrower hereby (a) agrees that from and after the
date of this Agreement it shall be a “Borrower” party to the Fee Letter as if it were a signatory thereto and shall
be bound by all of the provisions thereof, and (b) agrees that it shall comply with and be subject to all of the terms, conditions,
covenants, agreements and the remaining obligations set forth in the Fee Letter applicable to Borrowers. New Borrower hereby agrees
that each reference to “Borrower” or “Borrowers” in the Fee Letter shall include New Borrower. New Borrower
acknowledges that it has received a copy of the Fee Letter and that it has read and understands the terms thereof.


 


4.       Reserved.


 


5.       Additional
Requirements. Concurrent with the execution and delivery of this Agreement, Agent shall have received the following, each in
form and substance satisfactory to Agent:


 


(a)       a
Joinder No. __ to the Guaranty and Security Agreement, dated as of the date hereof, by and among New Borrower and Agent (“Joinder
No. __”), together with the original Equity Interest certificates, if any, representing all of the Equity Interests of
the Subsidiaries of New Borrower required to be pledged under the Guaranty and Security Agreement and any original promissory notes
of New Borrower, accompanied by undated Equity Interest powers/transfer forms executed in blank, and the same shall be in full
force and effect;


 


(b)       [a
Pledged Interests Addendum by __________, a _________, dated as of the date hereof, with respect to the pledge of Equity Interest
of New Borrower, owned by _______, together with the original stock certificates, if any, representing all of the Equity Interests
of New Borrower held by ________, accompanied by undated stock powers executed in blank and other proper instruments of transfer,
and the same shall be in full force and effect;]


 


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


 


(d)       a
certificate from the Secretary of New Borrower, dated as of the date hereof, (i) attesting to the resolutions of New Borrower’s
[Board of Directors][Managers] authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents
to which New Borrower is or will become a party, (ii) authorizing officers of New Borrower to execute the same, and (iii) attesting
to the incumbency and signatures of such specific officers of New Borrower;


 


 


 






    	 	2	 



     


    

 


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


 


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


 


(g)       copies
of New Borrower’s Governing Documents, as amended, modified or supplemented to the date hereof, certified by the Secretary
of New Borrower; and


 


(h)       evidence
that New Borrower has been added to the Loan Parties’ existing insurance policies required by Section 5.6 of the Credit
Agreement;


 


(i)       to
the extent requested by Agent, a customary opinion of counsel regarding such matters as to New Borrower as Agent or its counsel
may reasonably request, and which is otherwise in form and substance reasonably satisfactory to Agent (it being understood that
such opinion shall be limited to this Agreement, and the documents executed or delivered in connection herewith (including the
financing statement filed against New Borrower); and


 


(j)       such
other agreements, instruments, approvals or other documents reasonably requested by Agent prior to the date hereof in order to
create, perfect and establish the first priority of, or otherwise protect, any Lien purported to be covered by any Loan Document
or otherwise to effect the intent that New Borrower shall become bound by all of the terms, covenants and agreements contained
in the Loan Documents and that, to the extent set forth in the Credit Agreement and the Guaranty and Security Agreement, all property
and assets of New Borrower shall become Collateral for the Obligations.


 


6.       Further
Assurances. At any time upon the reasonable request of Agent, New Borrower shall promptly execute and deliver to Agent such
Additional Documents as Agent shall reasonably request pursuant to the Credit Agreement and the other Loan Documents, in each case
in form and substance reasonably satisfactory to Agent.


 


7.       Notices.
Notices to New Borrower shall be given in the manner set forth for Borrowers in Section 11 of the Credit Agreement.


 


8.       Choice
of Law and Venue; Jury Trial Waiver; Judicial Reference. THIS AGREEMENT SHALL BE SUBJECT TO THE PROVISIONS REGARDING CHOICE
OF LAW AND VENUE, JURY TRIAL WAIVER, AND JUDICIAL REFERENCE SET FORTH IN SECTION 12 OF THE CREDIT AGREEMENT, AND SUCH PROVISIONS
ARE INCORPORATED HEREIN BY THIS REFERENCE, MUTATIS MUTANDIS.


 


9.       Binding
Effect. This Agreement shall be binding upon New Borrower, and the other Loan Parties and shall inure to the benefit of the
Agent and the Lenders, together with their respective successors and permitted assigns.


 


 


 






    	 	3	 



     


    

 


10.     Effect
on Loan Documents. 


 


(a)       Except
as contemplated to be supplemented hereby, the Credit Agreement, the Fee Letter, the Intercompany Subordination Agreement and each
other Loan Document shall continue to be, and shall remain, in full force and effect. Except as expressly contemplated hereby,
this Agreement shall not be deemed (i) to be a waiver of, or consent to, or a modification or amendment of any other term or condition
of the Credit Agreement, the Fee Letter, the Intercompany Subordination Agreement or any of the instruments or agreements referred
to therein, as the same may be amended or modified from time to time.


 


(b)       Each
reference in the Credit Agreement and the other Loan Documents to “Borrower”, “Obligor” or words of like
import referring to a Borrower or an Obligor shall include and refer to New Borrower and (b) each reference in the Credit Agreement,
the Fee Letter, Intercompany Subordination Agreement or any other Loan Document to this “Agreement”, “hereunder”,
“herein”, “hereof”, “thereunder”, “therein”, “thereof”, or words of
like import referring to the Credit Agreement, the Fee Letter, Intercompany Subordination Agreement or any other Loan Document
shall mean and refer to such agreement as supplemented by this Agreement.


 


11.       Miscellaneous.


 


(a)       This
Agreement is a Loan Document. This Agreement may be executed in any number of counterparts and by different parties on separate
counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, taken together,
shall constitute but one and the same Agreement. Delivery of an executed counterpart of this Agreement by telefacsimile or other
electronic image scan transmission (e.g., “PDF” or “tif” via email) shall be equally effective as delivery
of an original executed counterpart of this Agreement. Any party delivering an executed counterpart of this Agreement by telefacsimile
or other electronic image scan transmission also shall deliver an original executed counterpart of this Agreement but the failure
to deliver an original executed counterpart shall not affect the validity, enforceability, and binding effect of this Agreement.


 


(b)       Any
provision of this Agreement which is prohibited or unenforceable shall be ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof in that jurisdiction or affecting the validity or enforceability of such provision
in any other jurisdiction. Each provision of this Agreement shall be severable from every other provision of this Agreement for
the purpose of determining the legal enforceability of any specific provision.


 


(c)       Headings
and numbers have been set forth herein for convenience only. Unless the contrary is compelled by the context, everything contained
in each Section applies equally to this entire Agreement.


 


(d)       Neither
this Agreement nor any uncertainty or ambiguity herein shall be construed against any member of the Lender Group or New Borrower,
whether under any rule of construction or otherwise. This Agreement has been reviewed by all parties and shall be construed and
interpreted according to the ordinary meaning of the words used so as to accomplish fairly the purposes and intentions of all parties
hereto.


 


(e)       The
pronouns used herein shall include, when appropriate, either gender and both singular and plural, and the grammatical construction
of sentences shall conform thereto.


 


(f)       This
Agreement shall be subject to the rules of construction set forth in Section 1.4 of the Credit Agreement, and such rules
of construction are incorporated herein by this reference, mutatis mutandis.


 


 


 






    	 	4	 



     


    

 


 


 


[remainder of this page intentionally left blank].


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 






    	 	5	 



     


    

 





IN WITNESS WHEREOF, New Borrower and Agent have
caused this Agreement to be duly executed by its authorized officer as of the day and year first above written.


 


 


	NEW BORROWER:	
        _____________,

         

        a _________________

	 	 
	 	 
	 	By:	__________________________________
	 	Name:	__________________________________
	 	Title:	__________________________________
	 	 


 


 


 


 


 


 


 


 




    	 	 	 



     


    



 


	AGENT:	
        WELLS FARGO BANK, NATIONAL ASSOCIATION,

         

        a national banking association

	 	 
	 	 
	 	By:	__________________________________
	 	Name:	__________________________________
	 	Title:	__________________________________
	 	 


 


 


 


 


 


 


 


 


 


 


 


 


 


 




    	 	 	 



     


    



Exhibit A


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 




    	 	 	 



     


    



Schedule 4.1(b)


 


CAPITALIZATION OF BORROWERS


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 




    	 	 	 



     


    



Schedule 4.1(c)


 


CAPITALIZATION OF BORROWERS’ SUBSIDIARIES


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 






    	 	 	 



     


    


 


EXHIBIT P-1


 


FORM OF PERFECTION CERTIFICATE


 


Reference is hereby made to (a) that certain
Credit Agreement, dated as of June __, 2017 (as amended, restated, supplemented, or otherwise modified from time to time, the “Credit
Agreement”), by and among Kinergy Marketing LLC (“Kinergy”), Pacific AG. Products, LLC (“Pacific
Ag” and together with Kinergy, each individually, a “Borrower” and collectively, the “Borrowers”)
and those additional entities that become parties thereto as Borrowers in accordance with the terms thereof by executing the form
of Joinder attached thereto as Exhibit J-1 (each, a “Borrower” and individually and collectively, jointly
and severally, the “Borrowers”), the lenders identified on the signature pages thereof (each of such lenders,
together with its successors and permitted assigns, is referred to hereinafter as a “Lender” and, collectively,
the “Lenders”), and Wells Fargo Bank, National Association, a national banking association (“Wells
Fargo”), as administrative agent for each member of the Lender Group and the Bank Product Providers (in such capacity,
together with its successors and assigns in such capacity “Agent”) and (b) that certain Guaranty and Security
Agreement dated as of June __, 2017 (as amended, restated, supplemented, or otherwise modified from time to time, the “Guaranty
and Security Agreement”) by and among by and among Borrowers, Pacific Ethanol, Inc. (“Parent”), and
the Subsidiaries of Borrowers party thereto (each, a “Grantor” and collectively, the “Grantors”),
and Agent.


 


Capitalized terms used herein and not otherwise
defined shall have the meanings ascribed to them in the Credit Agreement. Any terms (whether capitalized or lower case) used in
this Perfection Certificate that are defined in the Code shall be construed and defined as set forth in the Code unless otherwise
defined herein or in the Credit Agreement; provided that to the extent that the Code is used to define any term used herein
and if such term is defined differently in different Articles of the Code, the definition of such term contained in Article 9 of
the Code shall govern. As used herein, the term “Loan Parties” shall mean the “Loan Parties” as
that term is defined in the Credit Agreement and “Code” shall mean the “Code” as that term is defined
in the Guaranty and Security Agreement.


 


The undersigned, the ________ of ______________, hereby certifies (in my capacity as __________ and not in my individual capacity) to Agent and each of the other
members of the Lender Group and the Bank Product Providers as follows as of June __, 2017:


 


1.     
Names.


 


(a)   
The exact legal name of each Loan Party, as such name appears in its certified certificate of incorporation, articles
of incorporation, certificate of formation, or any other organizational document, is set forth in Schedule 1(a).
Each Loan Party is (i) the type of entity disclosed next to its name in Schedule 1(a) and (ii) a registered
organization except to the extent disclosed in Schedule 1(a). Also set forth in Schedule 1(a) is the
organizational identification number, if any, of each Loan Party that is a registered organization, the Federal Taxpayer Identification
Number of each Loan Party and the jurisdiction of formation of each Loan Party. Each Loan Party has qualified to do business in
the states listed on Schedule 1(a).


 


(b)  
Set forth in Schedule 1(b) hereto is a list of any other legal names each Loan Party has had in the
past five years, together with the date of the relevant name change.


 


(c)   
Set forth in Schedule 1(c) is a list of all other names used by each Loan Party in connection with
any business or organization to which such Loan Party became the successor by merger, consolidation, acquisition, change in form,
nature or jurisdiction of organization or otherwise or on any filings with the Internal Revenue Service, in each case, at any time
in the past five years. Except as set forth in Schedule 1(c), no Loan Party has changed its jurisdiction of organization at
any time during the past four months.


 


 


 






    	 	 	 



     


    


 


2.     
Chief Executive Offices. The chief executive office of each Loan Party is located at the address set forth
in Schedule 2 hereto.


 


3.     
Real Property.


 


(a)   
Attached hereto as Schedule 3(a) is a list of all (i) Real Property (as defined in the Guaranty
and Security Agreement) of each Loan Party, (ii) [filing offices for any mortgages encumbering the Real Property or to encumber,
the Real Property as of the Closing Date,] (iii) common names, addresses and uses of each parcel of Real Property (stating improvements
located thereon) and (iv) other information relating thereto required by such Schedule. Except as described on Schedule 3(a)
attached hereto: (A) no Loan Party has entered into any leases, subleases, tenancies, franchise agreements, licenses or other occupancy
arrangements as owner, lessor, sublessor, licensor, franchisor or grantor with respect to any of the real property described on
Schedule 3(a) and (B) no Loan Party has any leases which require the consent of the landlord, tenant or other party
thereto to the transactions contemplated by the Loan Documents.


 


(b)  
Schedule 3(b) sets forth all third parties (“Bailees”) with possession of any Collateral
(including inventory and equipment) of the Loan Parties, including the name and address of such Bailee, a description of the inventory
and equipment in such Bailee’s possession and the location of such inventory and equipment (if none please so state).


 


4.     
Extraordinary Transactions. Except for those purchases, mergers, acquisitions, consolidations, and other transactions
described on Schedule 4 attached hereto, all of the Collateral has been originated by each Loan Party in the ordinary
course of business or consists of goods which have been acquired by such Loan Party in the ordinary course of business from a person
in the business of selling goods of that kind.


 


5.     
Stock Ownership and Other Equity Interests. Attached hereto as Schedule 5(a) is a true
and correct list of each of all of the authorized, and the issued and outstanding, Equity Interests of each Loan Party and its
Subsidiaries and the record and beneficial owners of such Equity Interests. Also set forth on Schedule 5(a) is each
equity investment of each Loan Party that represents 50% or less of the equity of the entity in which such investment was made.
Attached hereto as Schedule 5(b) is a true and correct organizational chart of [Parent] [Borrowers] and [its][their]
Subsidiaries.


 


6.     
Instruments and Chattel Paper. Attached hereto as Schedule 6 is a true and correct list
of all promissory notes, instruments (other than checks to be deposited in the ordinary course of business), tangible chattel paper,
electronic chattel paper and other evidence of Indebtedness held by each Loan Party as of ______________, 20__ having an aggregate
value or face amount in excess of $_________, including all intercompany notes between or among any two or more Loan Parties or
any of their Subsidiaries.


 


7.     
Intellectual Property.


 


(a)   
Schedule 7(a) provides a complete and correct list of all registered Copyrights (as defined in the
Guaranty and Security Agreement) owned by any Loan Party, all applications for registration of Copyrights owned by any Loan Party,
and all other Copyrights owned by any Loan Party and material to the conduct of the business of any Loan Party. Schedule
7(a) provides a complete and correct list of all Patents (as defined in the Guaranty and Security Agreement) owned by any
Loan Party and all applications for Patents owned by any Loan Party. Schedule 7(a) provides a complete and correct
list of all registered Trademarks (as defined in the Guaranty and Security Agreement) owned by any Loan Party, all applications
for registration of Trademarks owned by any Loan Party, and all other Trademarks owned by any Loan Party and material to the conduct
of the business of any Loan Party.


 


 


 






    	 	- 2 -	 



     


    


 


(b)  
Schedule 7(b) provides a complete and correct list of all Intellectual Property Licenses (as defined
in the Guaranty and Security Agreement) entered into by any Loan Party pursuant to which (i) any Loan Party has provided any license
or other rights in Intellectual Property (as defined in the Guaranty and Security Agreement) owned or controlled by such Loan Party
to any other Person (other than non-exclusive software licenses granted in the ordinary course of business) or (ii) any Person
has granted to any Loan Party any license or other rights in Intellectual Property owned or controlled by such Person that is material
to the business of such Loan Party, including any Intellectual Property that is incorporated in any Inventory, software, or other
product marketed, sold, licensed, or distributed by such Loan Party;


 


(c)   
Attached hereto as Schedule 7(c) in proper form for filing with the United States Patent and Trademark
Office and United States Copyright Office (as applicable) are the filings necessary to preserve, protect and perfect the security
interests in the United States Trademarks, United Patents, United States Copyrights and Intellectual Property Licenses set forth
on Schedule 7(a) and Schedule 7(b), including duly signed copies of each of the Patent Security Agreement,
Trademark Security Agreement and the Copyright Security Agreement, as applicable.


 


8.     
Commercial Tort Claims. Attached hereto as Schedule 8 is a true and correct list of all commercial
tort claims that exceed $________ held by each Loan Party, including a brief description thereof.


 


9.     
Deposit Accounts and Securities Accounts. Attached hereto as Schedule 9 is a true and complete
list of all Deposit Accounts and Securities Accounts (each as defined in the Guaranty and Security Agreement) maintained by each
Loan Party, including the name of each institution where each such account is held, the name of each such account and the name
of each entity that holds each account.


 


10.  
Letter-of-Credit Rights. Attached hereto as Schedule 10 is a true and correct list of all letters
of credit issued in favor of any Loan Party, as beneficiary thereunder, having an aggregate value or face amount in excess of $_________.


 


11.  
[Motor Vehicles. Attached hereto as Schedule 11 is a true and correct list of all motor vehicles
and other goods (covered by certificates of title or ownership) [having an aggregate fair market value in excess of $_______ and
owned by any Loan Party,] and the owner and approximate fair market value of such motor vehicles.]


 


12.  
Other Assets: A Loan Party owns the following kinds of assets:


 


	Aircraft:	Yes ____  No ____
	 	 
	Vessels, boats or ships:	Yes ____  No ____
	 	 
	Railroad rolling stock:	Yes ____  No ____
	 	 
	[Motor Vehicles or similar titled collateral.	Yes ____  No ____]
	 	 


 


 


 






    	 	- 3 -	 



     


    

 


If the answer is yes to any of these other types of assets, please
describe on Schedule 12.


 


[The Remainder of this Page has been intentionally
left blank]


 


 


 


 


 


 


 


 


 


 


 


 


 


 




    	 	- 4 -	 



     


    



IN WITNESS WHEREOF, we have hereunto
signed this Perfection Certificate as of this ____ day of ________________, 2017.


 


Kinergy Marketing LLC,


as a Borrower


 


By: _____________________


Name: ___________________


Title: ____________________


 


 


PACIFIC AG. PRODUCTS, LLC,


as a Borrower


 


By: _____________________


Name: ___________________


Title: ____________________


 



 


 


Pacific Ethanol, inc.,


as Parent


 


By:  _____________________


Name:  ___________________


Title:  ____________________


 


 


 


 


 


 


 


 


 


 


 


 


 




    	 	- 5 -	 



     


    



Schedule 1(a)


 


Legal Names, Etc.


 


	Legal Name	Type of Entity	Registered

 Organization

(Yes/No)	

Organizational


    Number	Federal 

Taxpayer 

Identification

 Number	Jurisdiction

 of 

Formation	States 

Where

 Qualified 

to do

 Business
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 



 


 


 


 


 


 


 


 


 


 


 



    	 	- 6 -	 



     


    



Schedule 1(b)


 


Prior Names


 


 


	Loan Party/Subsidiary	Prior Name	Date of Change
	 	 	 
	 	 	 
	 	 	 
	 	 	 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 




    	 	- 7 -	 



     


    



 


Schedule 1(c)


 


Changes in Corporate Identity; Other Names


 


 


	Loan 

Party/Subsidiary	Name of Entity	Action	Date of 

Action	State of

 Formation	List of All 

Other Names 

Used on 

Any Filings with the 

Internal Revenue Service

 During Past Five Years
	 	 	 	 	 	 
	 	 	 	 	 	 
	 	 	 	 	 	 
	 	 	 	 	 	 
	 	 	 	 	 	 
	 	 	 	 	 	 
	 	 	 	 	 	 
	 	 	 	 	 	 
	 	 	 	 	 	 


 


[Add Information required by Section 1 to the extent required
by Section 1(c) of the Perfection Certificate]


 


 


 


 


 


 


 





 




    	 	- 8 -	 



     


    



 



Schedule 2


 


Chief Executive Offices


 


 


	Loan Party/Subsidiary	Address	County	State
	 	 	 	 
	 	 	 	 
	 	 	 	 
	 	 	 	 
	 	 	 	 
	 	 	 	 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 




    	 	- 9 -	 



     


    



 


Schedule 3(a)


 


Real Property


 


 


	Entity of

 Record	Common

 Name and

 Address	Owned,

 Leased or

 Other

 Interest	Landlord /

 Owner if

 Leased

 or Other

 Interest	Description

 of Lease or

 Other

 Documents

 Evidencing

 Interest	Purpose /

Use	Improvements

 Located on 

Real 

Property	Legal

 Description	Encumbered 

or to be

 Encumbered 

by Mortgage	Filing

 Office for

 Mortgage	Option to

 Purchase /

 Right of

 First

 Refusal
	[    ]	[    ]	[    ]	[    ]	[    ]	[    ]	[    ]	[SEE

 EXHIBIT A-[ ] ATTACHED

 HERETO]	[YES/NO]	[   ]	[YES/NO]
	 	 	 	 	 	 	 	 	 	 	 



 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 



    	 	- 10 -	 



     


    



Schedule 3(a)


 


Real Property (cont.)


 


Required Consents; Loan Party Held Landlord/
Grantor Interests


 


 


I. Landlord’s / Tenant’s Consent Required


 


1. [LIST EACH LEASE OR OTHER INSTRUMENT WHERE LANDLORD’S /
TENANT’S CONSENT IS REQUIRED].


 


 


 


 


 


 


 


II. Leases, Subleases, Tenancies, Franchise Agreements, Licenses
or Other Occupancy Agreements Pursuant to which any Loan Party holds Landlord’s / Grantor’s Interest


 


1. [LIST EACH LEASE OR OTHER INSTRUMENT WHERE ANY LOAN PARTY HOLDS
LANDLORD’S / GRANTOR’S INTEREST]


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 




    	 	- 11 -	 



     


    



[Schedule 3(b)


 


Bailees]


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 






    	 	- 12 -	 



     


    


 


 


Schedule 4


 


Transactions Other Than in the Ordinary
Course of Business


 


 


	Loan 

Party/Subsidiary	Description of Transaction 

Including Parties Thereto	Date of 

Transaction
	 	 	 
	 	 	 
	 	 	 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 




    	 	- 13 -	 



     


    



Schedule 5(a)


 


(a) Equity Interests of Loan Parties and
Subsidiaries


 


 


	Current Legal

 Entities Owned	Record

 Owner	Certificate No.	No. Shares

/Interest	Percent

 Pledged
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 


 


(b) Other Equity Interests


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 




    	 	- 14 -	 



     


    



Schedule 5(b)


 


Organizational Chart


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 




    	 	- 15 -	 



     


    



Schedule 6


 


Instruments and Chattel Paper


 


 


1.       Promissory Notes:


 


	Entity	Principal Amount	Date of Issuance	Interest Rate	Maturity Date
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 


 


2.       Chattel Paper:


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 




    	 	- 16 -	 



     


    



Schedule 7(a)


 


Copyrights, Patents and Trademarks


 


 


UNITED STATES COPYRIGHTS


 


Registrations:


 


	OWNER	TITLE	REGISTRATION

 NUMBER
	 	 	 


 


 


 


 


 


 


Applications:


 


	OWNER	APPLICATION 

NUMBER
	 	 


 


 


 


 


 


 


OTHER COPYRIGHTS


 


Registrations:


 


	OWNER	REGISTRATION

 NUMBER	COUNTRY/STATE	TITLE


 


 


 


 


 


 


Applications:


 


	OWNER	APPLICATION

 NUMBER	COUNTRY/STATE



 


 


 


 


 

 




    	 	- 17 -	 



     


    



Schedule 7(a)


 


Copyrights, Patents and Trademarks (cont.)


 


UNITED STATES PATENTS:


 


Registrations:


 


	OWNER	REGISTRATION

 NUMBER	DESCRIPTION
	 	 	 


 


 


 


 


 


Applications:


 


	OWNER	APPLICATION

    NUMBER	DESCRIPTION
	 	 	 


 


 


 


 


 


 


OTHER PATENTS:


 


Registrations:


 


	OWNER	REGISTRATION

 NUMBER	COUNTRY/STATE	DESCRIPTION
	 	 	 	 


 


 


 


 


 


 


 


Applications:


 


	OWNER	APPLICATION

 NUMBER	COUNTRY/STATE	DESCRIPTION
	 	 	 	 


 


 


 


 


 


 




    	 	- 18 -	 



     


    



Schedule 7(a)


 


Copyrights, Patents and Trademarks (cont.)


 


UNITED STATES TRADEMARKS:


 


Registrations:


 


	OWNER	REGISTRATION 

NUMBER	TRADEMARK
	 	 	 


 


 


 


 


 


 


 


Applications:


 


	OWNER	APPLICATION

 NUMBER	TRADEMARK
	 	 	 


 


 


 


 


 


 


 


 


OTHER TRADEMARKS:


 


Registrations:


 


	OWNER	REGISTRATION

 NUMBER	COUNTRY/STATE	TRADEMARK
	 	 	 	 


 


 


 


 


 


 


 


Applications:


 


	OWNER	APPLICATION

 NUMBER	COUNTRY/STATE	TRADEMARK
	 	 	 	 


 


 


 


 


 


 






    	 	- 19 -	 



     


    


 


Schedule 7(b)


 


Intellectual Property Licenses


 


	LICENSEE	LICENSOR	COUNTRY/STATE	REGISTRATION/

 APPLICATION 

NUMBER, IF

 ANY	DESCRIPTION
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 



 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 



    	 	- 20 -	 



     


    



Schedule 7(c)


 


Intellectual Property Filings


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 




    	 	- 21 -	 



     


    



Schedule 8


 


Commercial Tort Claims


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 




    	 	- 22 -	 



     


    



Schedule 9


 


Deposit Accounts and Securities Accounts


 


 


	Owner	Type of Account	Bank or Intermediary	Account Numbers
	 	 	 	 
	 	 	 	 
	 	 	 	 
	 	 	 	 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 




    	 	- 23 -	 



     


    



Schedule 10


 


Letter of Credit Rights


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 




    	 	- 24 -	 



     


    



[Schedule 11


 


Motor Vehicles]


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 




    	 	- 25 -	 



     


    



Schedule [12]


 


Other Assets


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 




    	 	- 26 -	 



     


    



FORM OF SUPPLEMENT TO PERFECTION CERTIFICATE


 


Supplement (this “Supplement”),
dated as of ____, 20__, to the Perfection Certificate, dated as of ________, 20__ (as amended, restated, supplemented or otherwise
modified from time to time, the “Perfection Certificate”) by each of the parties listed on the signature pages
thereto and those additional entities that thereafter become Loan Parties.


 


Reference is hereby made to (a) that certain
Credit Agreement, dated as of _______, 20__ (as amended, restated, supplemented, or otherwise modified from time to time, the “Credit
Agreement”), by and among [_______, a _______ (“Parent”),] _______, a _______ (“_______”)[,
the Subsidiaries of _______ identified on the signature pages thereof as “Borrowers”,] and those additional entities
that become parties thereto as Borrowers in accordance with the terms thereof by executing the form of Joinder attached thereto
as Exhibit J-1 (each, a “Borrower” and individually and collectively, jointly and severally, the “Borrowers”),
the lenders identified on the signature pages thereof (each of such lenders, together with its successors and permitted assigns,
is referred to hereinafter as a “Lender” and, collectively, the “Lenders”), [and] Wells Fargo
Bank, National Association, a national banking association (“Wells Fargo”), as administrative agent for each
member of the Lender Group and the Bank Product Providers (in such capacity, together with its successors and assigns in such capacity
“Agent”)[, [and] Wells Fargo and ___________, as joint lead arrangers (in such capacity, together with their
successors and assigns in such capacity, the “Joint Lead Arrangers”)][, [and] Wells Fargo and ___________, as
joint book runners (in such capacity, together with their successors and assigns in such capacity, the “Joint Book Runners”)]
[, [and] Wells Fargo and ___________, as co-syndication agents (in such capacity, together with their successors and assigns in
such capacity, the “Co-Syndication Agents”)][, [and] Wells Fargo and ___________, as co-documentation agents
(in such capacity, together with their successors and assigns in such capacity, the “Co-Documentation Agents”)],
and (b) that certain Guaranty and Security Agreement dated as of _________, 20__ (as amended, restated, supplemented, or otherwise
modified from time to time, the “Guaranty and Security Agreement”) by and among by and among [Parent,] Borrowers
and the Subsidiaries of Borrowers party thereto (each, a “Grantor” and collectively, the “Grantors”),
and Agent.


 


Capitalized terms used herein and not otherwise
defined shall have the meanings ascribed to them in the Credit Agreement. Any terms (whether capitalized or lower case) used in
this Perfection Certificate that are defined in the Code shall be construed and defined as set forth in the Code unless otherwise
defined herein or in the Credit Agreement; provided that to the extent that the Code is used to define any term used herein
and if such term is defined differently in different Articles of the Code, the definition of such term contained in Article 9 of
the Code shall govern. As used herein, the term “Code” shall mean the “Code” as that term is defined
in the Guaranty and Security Agreement.


 


WHEREAS, pursuant to Section 5.2 of the
Credit Agreement, the Loan Parties must execute and deliver a Perfection Certificate and the execution and delivery of the Perfection
Certificate may be accomplished by the execution of this Supplement in favor of Agent, for the benefit of each member of the Lender
Group and the Bank Product Providers;


 


In accordance with Section 5.2 of the
Credit Agreement, the undersigned, the ________ of _________, hereby certify (in my capacity as __________ and not in my individual
capacity) to Agent and each of the other members of the Lender Group and the Bank Product Providers as follows as of _______,
20__: [the information in the Perfection Certificate delivered on or prior to the Closing Date is true, correct, and
complete on and as of the date hereof.] [Schedule 1(a), “Legal Names, Etc.”, Schedule 1(b), “Prior
Names”, Schedule 1(c), “Changes in Corporate Identity; Other Names”, Schedule 2, “Chief
Executive Offices”, Schedule 3(a), “Real Property”, [Schedule 3(b), “Bailees”,] Schedule
4, “Transactions Other Than in the Ordinary Course of Business”, Schedule 5(a), “Equity Interests”,
Schedule 5(b), “Organizational Chart” Schedule 6, “Instruments and Chattel Paper”, Schedule
7(a), “Copyrights, Patents and Trademarks”, Schedule 7(b), “Intellectual Property Licenses”,
Schedule 8, “Commercial Tort Claims”, Schedule 9, “Deposit Accounts and Securities Accounts”,
Schedule 10, “Letter-of-Credit Rights”, [Schedule 11, “Motor Vehicles”], and Schedule
[12], “Other Assets” attached hereto supplement Schedule 1(a), Schedule (1(b), Schedule 1(c),
Schedule 2, Schedule 3, Schedule 4, Schedule 5(a), Schedule 5(b), Schedule 6, Schedule
7(a), Schedule 7(b), Schedule 8, Schedule 9, Schedule 10, [Schedule 11,] and Schedule
[12] respectively, to the Perfection Certificate and shall be deemed a part thereof for all purposes of the Perfection Certificate.]


 


 



    	 	- 27 -	 



     


    





The undersigned officers of each of the Loan
Parties hereby certify as of the date hereof on behalf of the Loan Parties in their capacity as officers of the Loan Parties and
not in their individual capacities that no additional filings or actions are required to create, preserve or perfect the security
interests in the Collateral granted, assigned or pledged to Agent pursuant to the Loan Documents.


 


Except as expressly supplemented hereby, the
Perfection Certificate shall remain in full force and effect.


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 




    	 	- 28 -	 



     


    



IN WITNESS WHEREOF, we have hereunto signed
this Supplement to Perfection Certificate as of this ____ day of ________________, 20__.


 





	 	 


[PARENT]


 


By:_______________________________________

Name:

Title:


 


[BORROWER]


 


By:_______________________________________

Name:

Title:


 


[BORROWER]


 


By:_______________________________________

Name:

Title:


 


[GUARANTOR]


 


By:_______________________________________

Name:

Title:


 





 


 


 


 


 


 


 


 


 


 


 


 




    	 	- 29 -	 



     


    









Schedule A-1


 


Agent’s Account


 


Bank:


 


Wells Fargo Bank, N.A.


420 Montgomery Street


San Francisco, CA


ABA # 121-000-248


 


Account Name:


 


Wells Fargo Capital Finance, LLC


A/C # 4124923707


Ref: Kinergy Marketing, LLC


 




 


 






    	 	 	 



     


    


 





Schedule A-2


 


Authorized Persons


 


 


	
        Company

         

         
	 	Title	 	Name
	Kinergy Marketing LLC and Pacific Ag. Products, LLC	 	President and Chief Executive Officer	 	Neil M. Koehler
	Kinergy Marketing LLC and Pacific Ag. Products	 	Chief Operating Officer	 	Michael D. Kandris
	Kinergy Marketing LLC and Pacific Ag. Products	 	Chief Financial Officer	 	Bryon T. McGregor
	Kinergy Marketing LLC and Pacific Ag. Products	 	General Counsel, Vice President and Secretary	 	Christopher W. Wright
	Kinergy Marketing LLC and Pacific Ag. Products, LLC	 	Vice President	 	Paul P. Koehler
	Kinergy Marketing LLC and Pacific Ag. Products, LLC	 	Vice President	 	James R. Sneed
	Kinergy Marketing LLC and Pacific Ag. Products, LLC	 	Vice President	 	Michael Kramer
	Kinergy Marketing LLC and Pacific Ag. Products, LLC	 	Vice President	 	Robert Olander


 


 


 


 


 


 


 


 




    	 	 	 



     


    


Schedule C-1


 


Commitments


 


 


	
         

        Lender
	Revolver Commitment	
         

        Total Commitment

	Wells Fargo Bank, National Association	$100,000,000	$100,000,000
	 	 	 
	 	 	 
	All Lenders	$100,000,000	$100,000,000


 


 


 


 


 


 


 


 


 


 


 


 


 


 




    	 	 	 



     


    


 


Schedule D-1


 


Designated Accounts


 


 


	Name of Company	 	Name and Address of Bank	 	Account No.	 	Purpose
	Kinergy Marketing LLC	 	Wells Fargo Bank	 	2000042670302	 	Collection Account
	Kinergy Marketing LLC	 	Wells Fargo Bank	 	2000042670357	 	Disbursement Account
	Pacific Ag. Products, LLC	 	Wells Fargo Bank	 	4122203821	 	Collection Account
	Pacific Ag. Products, LLC	 	Wells Fargo Bank	 	4125617902	 	Disbursement Account
	Kinergy Marketing LLC	 	INTL * FS Stone	 	DSMR3393 & JCR43394	 	Restricted Cash for Hedge Positions
	Kinergy Marketing LLC	 	RCG	 	318 43393-Hedge 
318 43394-Spec 
318 43302-Spec 
318 43303-Hedge	 	Restricted Cash for Hedge Positions



 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 






    	 	 	 



     


    

 


Schedule E-1


 


Existing Letters of Credit


 


 


	Tallgrass Interstate Gas Transmission LLC	$414,830.00




	Union Tank Car Company	$891,550.00




	Pacific Gas and Electric Company	$22,000.00




 


 


 


 


 


 


 


 


 


 


 


 


 




    	 	 	 



     


    


 


Schedule P-1


 


Permitted Investments


 


N/A


 


 


 


 


 


 


 


 


 


 


 


 




    	 	 	 



     


    


 


Schedule P-2


 


Permitted Liens


 


 


	
         

        Name of

        Company
	
         

        Name of

        Secured Party
	
         

        Description

        Of Collateral
	
        File No. of Financing

        Statement/Jurisdiction

              (Optional)      

	 	 	 	 
	Kinergy Marketing LLC	Wells Fargo Bank, National Association	Asset-Based Line of Credit	 


 


 


 


 


 


 


 


 


 


 


 


 




    	 	 	 



     


    


 


Schedule 3.1


 


The obligation of each Lender to make its initial
extension of credit provided for in this Agreement is subject to the fulfillment, to the satisfaction of each Lender (the making
of such initial extension of credit by any Lender being conclusively deemed to be its satisfaction or waiver of the following),
of each of the following conditions precedent:


 


(a)  
the Closing Date shall occur on or before August 2, 2017;


 


(b)  
[Reserved];


 


(c)  
Agent shall have received evidence that appropriate financing statements have been duly filed in such office or offices
as may be necessary or, in the opinion of Agent, desirable to perfect the Agent’s Liens in and to the Collateral, and Agent
shall have received searches reflecting the filing of all such financing statements;


 


(d)  
Agent shall have received each of the following documents, in form and substance satisfactory to Agent, duly executed and
delivered, and each such document shall be in full force and effect:


 


(i)   
a completed Borrowing Base Certificate,


 


(ii)  
the Control Agreements (as defined in the Guaranty and Security Agreement),


 


(iii)   
the Fee Letter,


 


(iv)  
the Guaranty and Security Agreement, and


 


(v)   
a completed Perfection Certificate for each of the Loan Parties,


 


(e)  
Agent shall have received a certificate from the Secretary with respect to each Loan Party (i) attesting to the resolutions
of such Loan Party’s board of directors (or, with respect to a limited liability company, other authorized Person) authorizing
its execution, delivery, and performance of the Loan Documents to which it is a party, (ii) authorizing specific officers of such
Loan Party to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such Loan Party;


 


(f)  
Agent shall have received copies of each Loan Party’s Governing Documents, as amended, modified, or supplemented to
the Closing Date, which Governing Documents shall be (i) certified by the Secretary with respect to such Loan Party, and (ii) with
respect to Governing Documents that are charter documents, certified as of a recent date (not more than 30 days prior to the Closing
Date) by the appropriate governmental official;


 


(g)  
Agent shall have received a certificate of status with respect to each Loan Party, dated within 30 days of the Closing Date,
such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Loan Party, which certificate
shall indicate that such Loan Party is in good standing in such jurisdiction;


 


(h)  
Agent shall have received certificates of status with respect to each Loan Party, each dated within 30 days of the Closing
Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization
of such Loan Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates
shall indicate that such Loan Party is in good standing in such jurisdictions;


 


 


 






    	 	 	 



     


    

 


(i)  
To the extent not previously received, Agent shall have received a certificate of insurance, together with the endorsements
thereto, as are required by Section 5.6 of this Agreement, the form and substance of which shall be satisfactory to Agent;


 


(j)  
[Reserved];


 


(k)        
Agent shall have received an opinion of the Loan Parties’ counsel in form and substance reasonably satisfactory to
Agent;


 


(l)         
Agent shall have completed its business, legal, and collateral due diligence of Borrowers;


 


(m)       
Agent shall have completed (i) Patriot Act searches, OFAC/PEP searches and customary individual background checks for each
Loan Party, and (ii) OFAC/PEP searches and customary individual background searches for each Loan Party’s senior management
and key principals, the results of which shall be satisfactory to Agent;


 


(n)         
Borrowers shall have paid all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement
and the other Loan Documents;


 


(o)         
 Parent, Borrowers and each of their respective Subsidiaries shall have received all licenses, approvals or evidence of
other actions required by any Governmental Authority in connection with the execution and delivery by Parent, Borrowers or their
respective Subsidiaries of the Loan Documents or with the consummation of the transactions contemplated thereby, if any are so
required; and


 


(p)         
all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been
delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent.


 


 


 


 




    	 	 	 



     


    


 


Schedule 4.1(b)


 


Equity Interests


 


 


	Company	Authorized	Equity Interests Issued and Outstanding
	Parent	300,000,000 shares of Common Stock

3,553,000 shares of Non-Voting Common Stock

10,000,000 shares of Preferred Stock	
        43,971,127 shares of Common Stock issued and outstanding as of the
        Closing Date

         

        959 shares of Non-Voting Common Stock issued and outstanding as
        of the Closing Date

         

        926,942 shares of Series B Preferred Stock issued and outstanding
        as of the Closing Date

	Kinergy	--	
        100% of Equity Interests owned directly by Parent

         

	Pacific Ag	--	100% of Equity Interests owned directly by Kinergy



 


 


 


 


 


 


 


 


 


 


 


 


 


 



    	 	 	 



     


    


 


Schedule 4.1(c)


 


Subsidiaries


 


 


	Company	Authorized	Ownership by Parent and each Loan Party
	Parent 
	Pacific Ethanol Central, LLC	N/A	100% of Equity Interests owned directly by Parent
	Pacific Aurora, LLC	N/A	73.93% of the Equity Interests owned indirectly by Parent
	Pacific Ethanol Aurora East, LLC	N/A	73.93% of the Equity Interests owned indirectly by Parent
	Pacific Ethanol Aurora West, LLC	N/A	73.93% of the Equity Interests owned indirectly by Parent
	Pacific Ethanol Pekin, LLC	N/A	100% of Equity Interests owned indirectly by Parent
	Pacific Ethanol Canton, LLC	N/A	100% of Equity Interests owned indirectly by Parent
	Kinergy	N/A	100% of Equity Interests owned directly by Parent
	Pacific Ag	N/A	100% of Equity Interests owned indirectly by Parent
	Pacific Ethanol Development, LLC	N/A	100% of Equity Interests owned directly by Parent
	Illinois Corn Processing, LLC	N/A	100% of Equity Interests owned indirectly by Parent
	Pe Op Co.	4,000,000 shares of Common Stock

1,000,000 shares of Preferred Stock	
        1,000 shares of Common Stock issued and outstanding,

        100% owned directly by Parent




 


 


 






    	 	 	 



     


    

 


	Company	Authorized	Ownership by Parent and each Loan Party
	Pacific Ethanol West, LLC	N/A	100% of Equity Interests owned indirectly by Parent
	Pacific Ethanol Magic Valley, LLC	N/A	100% of Equity Interests owned indirectly by Parent
	Pacific Ethanol Stockton LLC	N/A	100% of Equity Interests owned indirectly by Parent
	Pacific Ethanol Columbia, LLC	N/A	100% of Equity Interests owned indirectly by Parent
	Pacific Ethanol Madera LLC	N/A	100% of Equity Interests owned indirectly by Parent
	Kinergy
	Pacific Ag	N/A	100% of Equity Interests owned directly by Kinergy
	Pacific Ag
	N/A	N/A	N/A


 


 


 


 




    	 	 	 



     


    


 


Schedule 4.1(d)


 


Subscriptions, Options, Warrants, or Calls


 


N/A


 


 


 


 


 


 


 


 


 


 


 




    	 	 	 



     


    


 


Schedule 4.10


 


Employee Benefits


 


Pacific Ethanol Pekin Pension Plan (f/k/a Aventine Renewable Energy,
Inc. Hourly Pension Plan)


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 




    	 	 	 



     


    


 


Schedule 4.11


 


Environmental Condition


 


N/A


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 




    	 	 	 



     


    


 


Schedule 4.14


 


Permitted Indebtedness


 


N/A


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 




    	 	 	 



     


    


Schedule 4.25


 


Location of Inventory


 


 


A.       Company: Kinergy Marketing
LLC


 


Locations of Inventory, Equipment and Other Assets


 


	Address	Type	Owned/Leased/3rd Party	Name of Third Party*
	71335 Rail Loop Drive, Boardman,OR 97818**	Plant	Owned by PE Op Co.	 
	2600 Washington Ave., Burley, ID 83318**	Plant	Owned by PE Op Co.	 
	31470 Avenue 12, Madera, CA 93638**	Plant	Owned by PE Op Co.	 
	1205 S. O Road, Aurora, NE 68818**	Plant	Owned by Pacific Ethanol Central, LLC	 
	2103 Harvest Drive, Aurora, NE 68818**	Plant	Owned by Pacific Ethanol Central, LLC	 
	1300 S. Second Street, Pekin, IL 61554**	Plant	Owned by Pacific Ethanol Central, LLC	 
	3028 Navy Drive, Stockton, CA 95206**	Plant	Owned by PE Op Co.	 
	3028 Navy Drive, Stockton, CA 95206**	Transload (PES-K)	Owned by PE Op Co.	 
	15000 E Smith Road, Aurora, CO 80011	Rack Terminal	3rd party	Magellan Midstream Partners



 


 


 


 






    	 	 	 



     


    

 


 


	Address	Type	Owned/Leased/3rd Party	Name of Third Party*
	2503 S.E. 43rd St, Des Moines, IA 50317	Rack Terminal	3rd party	Magellan Midstream Partners
	1/4 Mile N Jct. Hwy 56/HWY156, Great Bend, KS 67530	Rack Terminal	3rd party	Magellan Midstream Partners
	401 E. Donovan Rd, Kansas City, KS 66115	Rack Terminal	3rd party	Magellan Midstream Partners
	2451 W County Road C, St. Paul, MN 55113	Rack Terminal	3rd party	Magellan Midstream Partners
	251 N Sunnylane Road, Oklahoma City, OK 74107	Rack Terminal	3rd party	Magellan Midstream Partners
	2205 N 11th Street, Omaha, NE 68110	Rack Terminal	3rd party	Magellan Midstream Partners
	100 Hwy 4, Scott City, KS 67871	Rack Terminal	3rd party	Magellan Midstream Partners
	RFD No. 1 Box 151, Topeka, KS 66546	Rack Terminal	3rd party	Magellan Midstream Partners
	2120 South 33rd West Ave, Tulsa, OK 74107	Rack Terminal	3rd party	Magellan Midstream Partners



 


 


 






    	 	 	 



     


    

 


 


 


	Address	Type	Owned/Leased/3rd Party	Name of Third Party*
	1120 S Meridian Ave, Valley Center, KS 67147	Rack Terminal	3rd party	Magellan Midstream Partners
	8500 West 68th Street, Argo, IL 60501-0409	Terminal	3rd party	Kinder Morgan – Argo
	125 North 53rd Ave, Phoenix, AZ 85043	Terminal	3rd party	CalJet
	9420 NW St. Helens Road, Portland, OR 97231**	Terminal	3rd party	NuStar Energy Linnton
	2900 Sacajawea Park Rd, Pasco, WA 99301	Terminal	3rd party	Tidewater - Pasco
	488 Wright Avenue, Richmond, CA 94804**	Terminal	3rd party	Plains Products Terminals
	90 San Pablo Ave, Crockett, CA 94525**	Terminal 	3rd party	NuStar Selby
	2941 Navy Drive, Stockton, CA 95206-0653**	Terminal	3rd party	NuStar Energy Stockton
	1015 South Cherry, Tucson, AZ 85719	Terminal	3rd party	AZ Petroleum
	Beatty Terminal, Boise, ID **	Transload Facility	3rd party	Boise West Point



 


 


 






    	 	 	 



     


    

 


	Address	Type	Owned/Leased/3rd Party	Name of Third Party*
	2690 Prairie Road, Eugene, OR 97404	Transload Facility	3rd party	The Jerry Brown Company
	2200 S Highland Drive, Las Vegas, NV 89102	Transload Facility	3rd party	Rebel Oil
	8000 E Manning Avenue, Fowler, CA 93625	Transload Facility *inactive	3rd party	Van G - Goble Terminal


 


* Addresses for the third parties are the addresses listed herein.


 


** Bailee agreement in place.


 


Third Party Relationships:


 


		-	Terminals: The Companies have entered into terminaling agreements with third parties which grants the Companies
access to store products at such facilities.
	 	 	 



		-	Plant – 3rd Party: The Companies market the products for these third parties but does not store any ethanol
at these locations.
	 	 	 



		-	Transload Facility: The Companies have entered into terminaling agreements with third parties which grants
                                                               the Companies access to ship railcars to such facility and offload into trucks. Ethanol remains in railcars until
                                                               offloaded.



 


 


 


 


 







    	 	 	 



     


    


 


Schedule 4.29


 


Material Contracts


 


	 	 	Company	 	Name of 

Agreement	 	Date of 

Agreement	 	Parties to

 Agreement	 	Date of

 Expiration/Termination
	 	 	 	 	 	 	 	 	 	 	 
	1.     	 	Kinergy Marketing LLC & Pacific Ag Products, LLC 
	 	Affiliated Company Agreement 	 	July 1, 2015	 	Pacific Ethanol, Inc. 
 and its subsidiaries	 	Auto Renew Annually
	 	 	 	 	 	 	 	 	 	 	 
	2.     	 	Kinergy Marketing LLC & Pacific Ag Products, LLC 	 	Amendment No. 1 to Affiliated
 Company Agreement	 	January 1, 2017	 	Pacific Ethanol, Inc.
 and its subsidiaries	 	Coterminous
	 	 	 	 	 	 	 	 	 	 	 
	3.     	 	Kinergy Marketing LLC & Pacific Ag Products, LLC	 	Amendment No. 2 to Affiliated

Company Agreement (Draft
 7-3-17)
	 	July 1, 2017	 	Pacific Ethanol, Inc. 
 and its subsidiaries 
 (including Illinois Corn
 Processing, LLC) 	 	Coterminous
	 	 	 	 	 	 	 	 	 	 	 
	4.     	 	Kinergy Marketing LLC	 	Amended and Restated Ethanol
 Marketing Agreement 	 	September 1, 2014	 	Pacific Ethanol Stockton LLC	 	Auto Renew Annually
	 	 	 	 	 	 	 	 	 	 	 
	5.     	 	Kinergy Marketing LLC	 	Amended and Restated Ethanol
 Marketing Agreement 	 	July 1, 2015	 	Pacific Ethanol Magic Valley, LLC	 	Auto Renew Annually
	 	 	 	 	 	 	 	 	 	 	 
	6.     	 	Kinergy Marketing LLC	 	Amended and Restated Ethanol
 Marketing Agreement 	 	July 1, 2015	 	Pacific Ethanol Madera LLC	 	Auto Renew Annually



 


 


 



    	 	 	 



     


    




 


	 	 	 	 	 	 	 	 	 	 	 
	7.     	 	Kinergy Marketing LLC	 	Ethanol Marketing Agreement	 	July 1, 2015	 	Aventine Renewable 
 Energy – Aurora West, LLC
 (n/k/a “Pacific Ethanol 
 Aurora West, LLC”)	 	Auto Renew Annually
	 	 	 	 	 	 	 	 	 	 	 
	8.     	 	Kinergy Marketing LLC	 	Ethanol Marketing Agreement	 	July 1, 2015	 	Aventine Renewable
 Energy, Inc. – (n/k/a to “Pacific Ethanol Pekin, LLC”) 	 	Auto Renew Annually
	 	 	 	 	 	 	 	 	 	 	 
	9.	 	Kinergy Marketing LLC	 	Amendment No. 1 to Ethanol Marketing Agreement	 	December 15, 2016	 	Pacific Ethanol Pekin, LLC	 	Coterminous
	 	 	 	 	 	 	 	 	 	 	 
	10. 	 	Kinergy Marketing LLC	 	Ethanol Marketing Agreement	 	July 1, 2015	 	Nebraska Energy, L.L.C 
 (n/k/a “Pacific Ethanol
 Aurora East, LLC”)	 	Auto Renew Annually
	 	 	 	 	 	 	 	 	 	 	 
	11. 	 	Kinergy Marketing LLC	 	Ethanol Marketing Agreement	 	December 15, 2016	 	Pacific Aurora, LLC 
	 	Auto Renew Annually
	 	 	 	 	 	 	 	 	 	 	 
	12. 	 	Kinergy Marketing LLC	 	Alcohol Product Marketing Agreement
(Draft 7-3-17)
	 	July 3, 2017	 	Illinois Corn 
 Processing, LLC	 	Auto Renew Annually
	 	 	 	 	 	 	 	 	 	 	 
	13. 	 	Pacific Ag. Products, LLC	 	Co-Product Marketing Agreement
(Draft 7-3-17)
	 	July 3, 2017	 	Illinois Corn
 Processing, LLC	 	Auto Renew Annually
	 	 	 	 	 	 	 	 	 	 	 
	14. 	 	Pacific Ag. Products, LLC	 	Grain Procurement and Supply Agreement
(Draft 7-3-17)
	 	July 3, 2017	 	Illinois Corn
 Processing, LLC	 	Auto Renew Annually



 


 


 




    	 	 	 



     


    


 


Schedule 5.1


Financial Reporting


 


 


Deliver to Agent (and if so requested by Agent,
with copies for each Lender) each of the financial statements, reports, or other items set forth below at the following times in
form satisfactory to Agent:


 


	within 30 days  after the end of each fiscal month during each of Borrowers’ fiscal years,	(a)       
monthly unaudited consolidated financial statements and unaudited
consolidating financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow,
and statements of shareholders’ equity), all in reasonable detail, fairly presenting in all material respects the consolidated
financial position and the consolidated results of the operations of Borrowers and their respective Subsidiaries as of the end
of and through such fiscal month, certified to be correct by the chief financial officer of Administrative Borrower, subject to
normal year-end adjustments and accompanied by a Compliance Certificate substantially in the form of Exhibit C-1 hereto, along
with a schedule in form reasonably satisfactory to Agent of the calculations used in determining, as of the end of such month,
whether Borrowers were, on a collective basis, in compliance with the covenant set forth in Section 7 of this Agreement for such
month.
	within 50 days after the end of the first three (3) fiscal quarters of each fiscal year; provided, that, with respect to Parent, the filing of such financial statements or other information with the SEC, or the making of such reports or other information available on the SEC’s EDGAR filing system shall be deemed to have satisfied the delivery requirement 	
        (a)       quarterly unaudited consolidated financial statements and unaudited
        consolidating financial statements of Borrowers their respective Subsidiaries (including in each case balance sheets, statements
        of income and loss, statements of cash flow, and statements of shareholders’ equity), all in reasonable detail, fairly presenting
        in all material respects the consolidated financial position and the consolidated results of the operations of Borrowers and their
        respective Subsidiaries as of the end of and through such fiscal quarter, certified to be correct by the chief financial officer
        of Administrative Borrower, subject to normal quarterly and year-end adjustments and accompanied by a Compliance Certificate substantially
        in the form of Exhibit C hereto along with a schedule in form reasonably satisfactory to Agent of the calculations used in determining,
        as of the end of such fiscal quarter, whether Borrowers were in compliance with the covenants set forth in Section 7 of this Agreement
        for such fiscal quarter, and

         

        (b)       quarterly unaudited consolidated financial statements of Parent
and its Subsidiaries (including balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’
equity), all in reasonable detail, fairly presenting in all material respects the consolidated financial position and the consolidated
results of the operations of Parent and its Subsidiaries as of the end of and through such fiscal quarter, certified to be correct
by the chief financial officer of Parent, subject to normal quarterly and year-end adjustments and accompanied by a Compliance
Certificate substantially in the form of Exhibit C hereto along with a schedule in form reasonably satisfactory to Agent of the
calculations used in determining, as of the end of such fiscal quarter, whether Borrowers were in compliance with the covenants
set forth in Section 7 of this Agreement for such fiscal quarter, and 

         




 


 






    	 	 	 



     


    


 


 


	within 120 days after the end of each fiscal year; provided, that, with respect to Parent, the filing of such financial statements or other information with the SEC, or the making of such reports or other information available on the SEC’s EDGAR filing system shall be deemed to have satisfied the delivery requirement	
        (a)       audited consolidated financial statements and unaudited consolidating
        financial statements of Borrowers and their respective Subsidiaries (including in each case balance sheets, statements of income
        and loss, statements of cash flow, and statements of shareholders’ equity), and the accompanying notes thereto, all in reasonable
        detail, fairly presenting in all material respects the consolidated financial position and the consolidated results of the operations
        of Borrowers and their respective Subsidiaries as of the end of and for such fiscal year, together with the unqualified opinion
        of independent certified public accountants with respect to the audited consolidated financial statements, which accountants shall
        be an independent accounting firm selected by Parent on behalf of Borrowers and reasonably acceptable to Agent, that such audited
        consolidated financial statements have been prepared in accordance with GAAP, and present fairly in all material respects the results
        of operations and financial condition of Borrowers and their respective Subsidiaries as of the end of and for the fiscal year then
        ended, and

         

        (b)       
audited consolidated financial statements of Parent and its Subsidiaries
(including balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ equity),
and the accompanying notes thereto, all in reasonable detail, fairly presenting in all material respects the consolidated financial
position and the consolidated results of the operations of Parent and its Subsidiaries as of the end of and for such fiscal year,
together with the unqualified opinion of independent certified public accountants with respect to the audited consolidated financial
statements, which accountants shall be an independent accounting firm selected by Parent and reasonably acceptable to Agent, that
such audited consolidated financial statements have been prepared in accordance with GAAP, and present fairly in all material
respects the consolidated results of operations and consolidated financial condition of Parent and its Subsidiaries as of the
end of and for the fiscal year then ended.

	At such time as available, but in no event no later than the end of each fiscal year	(a)       projected
    consolidated financial statements (including in each case, forecasted balance sheets and statements of income and loss,
    statements of cash flow, and statements of shareholders’ equity), and Borrowers and their respective Subsidiaries, on a
    consolidated basis, for the next fiscal year, all in reasonable detail, and in a format consistent with the projections
    delivered by Borrowers to Agent prior to the date hereof, together with such supporting information as Agent may reasonably
    request. Such projected financial statements shall be prepared on a monthly basis for the next succeeding year.
    Such projections shall represent Parent’s and Borrowers’ reasonable best estimate of the future financial
    performance of Borrowers for the periods set forth therein and shall have been prepared on the basis of the assumptions set
    forth therein which Borrowers believe are fair and reasonable as of the date of preparation in light of current and
    reasonably foreseeable business conditions (it being understood that actual results may differ from those set forth in such
    projected financial statements). Each year Parent and Borrowers shall provide to Agent a semi-annual update with
    respect to such projections or at any time a Default or Event of Default exists or has occurred and is continuing, more
    frequently as Agent may require.
	Promptly after the sending or filing thereof, provided, that, the filing of such reports or other information with the SEC, or the making of such reports or other information available on the SEC’s EDGAR filing system shall be deemed to have satisfied the delivery requirement	
        (a)       all reports which Parent or any of their Subsidiaries sends to its
        security holders generally,

         

        (b)       
all reports and registration statements which Parent or any of
its Subsidiaries files with the Securities Exchange Commission, any national or foreign securities exchange or the National Association
of Securities Dealers, Inc., and such other reports as Agent may hereafter specifically identify to Administrative Borrower that
Agent reasonably requires be provided to Agent,

         

        (c)       
all press releases, and

         

        (d)      
all other statements concerning material changes or developments in the business of a Borrower made available by any Borrower
to the public.

         




 


 


 






    	 	 	 



     


    


 


	upon the reasonable request of Agent and to the extent not otherwise required to be delivered herewith	(a)       budgets, forecasts, projections and other information respecting the Collateral and the business of Borrowers, it being acknowledged and agreed that Agent is hereby authorized to deliver a copy of any financial statement or any other information relating to the business of Borrowers to any court or other Governmental Authority, or to any Lender or Participant or prospective Lender or Participant, or any Affiliate of any Lender or Participant; provided that any such delivery will be subject to the provisions set forth in Section 17.9 of the Credit Agreement.
	 	Each Borrower hereby irrevocably authorizes and directs all auditors who prepared any audited statements as and when required hereunder, to deliver to Agent, at Borrowers’ expense, copies of the financial statements of any Borrower and any reports or management letters prepared by such auditors on behalf of any Borrower and to disclose to Agent and Lenders such material information as they may have regarding the business of any Borrower, all subject to the confidentiality provisions of Section 17.9.  Any documents, schedules, invoices or other papers delivered to Agent or any Lender may be destroyed or otherwise disposed of by Agent or such Lender one (1) year after the same are delivered to Agent or such Lender, except as otherwise designated by Administrative Borrower to Agent or such Lender in writing


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 




    	 	 	 



     


    



 


Schedule 5.2


 


Collateral Reporting


 


 


Provide Agent (and if so requested by Agent,
with copies for each Lender) with each of the documents set forth below at the following times in form satisfactory to Agent:


 


	If (x) no Increased Reporting Period is in effect, monthly, as soon as practicable (but in any event no later than the 15th day after the end of each month), or (y) an Increased Reporting Period is in effect, weekly, as soon as practicable (but in any event no later than two (2) Business Days after the end of each week, commencing with the first such day to occur during any Increased Reporting Period), or (z) more frequently as the Agent may reasonably request:	
        (a)   
        schedules of sales made, credits issued and cash received,

         

        (b)  
        inventory reports by location and category (and including the amounts of Inventory and the value thereof at any leased locations
        and at premises of warehouses, processors or other third parties), and

         

        (c)   
        an executed Borrowing Base Certificate as of the last Business Day of the immediately preceding period, together with all
        schedule, each duly completed, as required pursuant to the terms of the Borrowing Base Certificate.

	Monthly (no later than the 15th Business Day after the end of each month), or more frequently as Agent may reasonably request:	
        (a)  perpetual inventory reports,

         

        (b)  
        agings of accounts receivable (together with a reconciliation to the previous month’s aging and general ledger),

         

        (c)   
        agings of accounts payable (and including information indicating the amounts owing to owners and lessors of leased premises,
        warehouses, processors and other third parties from time to time in possession of any Collateral), and

         

        (d)   
        a schedule of all ethanol purchase and sale contracts or agreements constituting a Material Contract entered into, amended
        or terminated during the previous month.

         

	Promptly upon request by Agent:	
        (a) copies of customer statements, purchase orders, sales
        invoices,         credit memos, remittance advices and reports, and copies of deposit slips and bank statements,

         

        (b)  
        copies of shipping and delivery documents,

         

        (c)  
        copies of purchase orders, invoices and delivery documents for Inventory and Equipment acquired by any Borrower, and

         

        (d)    
        such other reports as to the Collateral as Agent shall reasonably request from time to time.

         




 


 


 


 


 






    	 	 	 



     


    

 


 


	 	It being acknowledged and agreed that, with respect to each of the foregoing, if Borrowers’ records or reports of the Collateral are prepared or maintained by an accounting service, contractor, shipper or other agent, Borrowers hereby irrevocably authorize such service, contractor, shipper or agent to deliver such records, reports, and related documents to Agent and to follow Agent’s instructions with respect to further services at any time that an Event of Default exists or has occurred and is continuing.


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 




    	 	 	 



     


    


 


Schedule 6.5


 


Nature of Business


 


 


		1.	Kinergy purchases, markets and sells the ethanol produced by certain Pacific Ethanol Affiliates.
	 	 	 



		2.	Pacific Ag acts as agent to solicit, negotiate, enter into and administer, on behalf of certain Pacific Ethanol Affiliates,
corn supply arrangements to procure the corn necessary to operate its facility. Pacific Ag also provides grain handling services
including, but not limited to, receiving, unloading and conveying corn into the facility’s storage and, in the case of whole
corn delivered, processing and hammering the whole corn.