Exhibit
10.1


 


Execution
Version


 


SECOND
AMENDMENT TO CREDIT AGREEMENT


 


THIS
SECOND AMENDMENT TO CREDIT AGREEMENT (the “Amendment”), dated as of July 10, 2020 (the “Second Amendment
Effective Date”), is among FIESTA RESTAURANT GROUP, INC., a Delaware corporation (the “Borrower”), each
of the other Loan Parties party hereto, each of the banks or other lending institutions which is a party hereto (individually
a “Lender” and collectively the “Lenders”) and JPMORGAN CHASE BANK, N.A., individually as a
Lender and as agent for itself and the other Lenders ( in its capacity as agent, the “Administrative Agent”).


 


RECITALS:


 


The
Borrower, the other loan parties party thereto, the Administrative Agent, and the lenders listed on the signature pages thereto
have entered into that certain Credit Agreement dated as of November 30, 2017 (as amended by the First Amendment to
Credit Agreement, dated as of March 9, 2018, and as waived by the Limited Waiver to Credit Agreement, dated as of October
18, 2019, and as the same may hereafter be amended or otherwise modified, the “Agreement”). The Borrower, the
other Loan Parties, the Administrative Agent and the Required Lenders now desire to amend the Agreement to, among other things,
reduce the aggregate Revolving Commitments of all Lenders from $150,000,000 to $120,000,000, as herein set forth.


 


NOW,
THEREFORE, in consideration of the premises herein contained and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows effective as of the Second Amendment Effective Date unless
otherwise indicated:


 


ARTICLE
1.



Definitions


 


Section
1.1. Definitions. Capitalized terms used in this Amendment, to the extent not otherwise defined herein, shall have the
same meanings as in the Agreement, as amended hereby.


 


ARTICLE
2.



Amendments


 


Section
2.1. Agreement. The Agreement is, effective as of the Second Amendment Effective Date, hereby amended in its entirety
to read as set forth in the attached Annex I. The Schedules and Exhibits to the Agreement remain unmodified except to the
extent amended, modified or added below.


 


Section
2.2. Exhibit D. 


 


(a) Exhibit
D (Compliance Certificate) is, effective as of the Second Amendment Effective Date, hereby deleted.


 


(b) The
Agreement is, effective as of the Second Amendment Effective Date, hereby amended to add new Exhibits D-1 (Compliance Certificate
(Annual and Quarterly Financial Statements) and D-2 (Compliance Certificate (Monthly Financial Statements)) in their proper order,
as attached hereto as Exhibit D-1 (Compliance Certificate (Annual and Quarterly Financial Statements) and D-2 (Compliance
Certificate (Monthly Financial Statements)).


 






    SECOND AMENDMENT TO CREDIT AGREEMENT, Page 1


     


    

 


Section
2.3. Schedules. 


 


(a) Each
of the Commitment Schedule, Schedule 1.01(b) – Liens, Schedule 3.03 – Corporate Existence, Schedule 3.12 – Capitalization
and Subsidiaries, Schedule 3.16(a) – Intellectual Property, Schedule 3.16(b) – Documents, Instruments and Tangible
Chattel Paper, Schedule 3.16(c) – Commercial Tort Claims, Schedule 3.16(d) – Pledged Equity Interests, Schedule 3.16(e)
– Collateral Locations, Schedule 3.22 – Material Contracts, Schedule 3.23 – Insurance, Schedule 3.27 –
Authorized Officers and Schedule 6.01(b) – Indebtedness is, effective as of the Second Amendment Effective Date, hereby
amended in its respective entirety to read as set forth in the attached Commitment Schedule, Schedule 1.01(b) – Liens, Schedule
3.03 – Corporate Existence, Schedule 3.12 – Capitalization and Subsidiaries, Schedule 3.16(a) –
Intellectual Property, Schedule 3.16(b) – Documents, Instruments and Tangible Chattel Paper, Schedule 3.16(c)
– Commercial Tort Claims, Schedule 3.16(d) – Pledged Equity Interests, Schedule 3.16(e) –
Collateral Locations, Schedule 3.22 – Material Contracts, Schedule 3.23 – Insurance, Schedule 3.27
– Authorized Officers and Schedule 6.01(b) – Indebtedness.


 


(b) The
Agreement is, effective as of the Second Amendment Effective Date, hereby amended to add a new Schedule 1.01(d) – Properties
Held for Sale, a new Schedule 1.01(e) - Properties Held for Sale Leaseback and a new Schedule 3.29 – Existing Indebtedness,
Liens and Investments in their proper numerical order, as attached hereto as Schedule 1.01(d) – Properties Held for
Sale, Schedule 1.01(e) - Properties Held for Sale Leaseback and Schedule 3.29 – Existing Indebtedness, Liens
and Investments.


 


ARTICLE
3.



Commitment Reduction


 


Section
3.1. The Borrower hereby notifies the Administrative Agent and the Lenders that the aggregate Revolving Commitments of all
Lenders is voluntarily and permanently reduced by $30,000,000 to $120,000,000, effective on the Second Amendment Effective Date.
The amount of each Lender’s Revolving Commitment after giving effect to such reduction is set forth on the Commitment Schedule
attached hereto.


 


ARTICLE
4.



Conditions Precedent


 


Section
4.1. Conditions. The effectiveness of Articles 2 and 3 of this Amendment is subject to the satisfaction of the following
conditions precedent:


 


(a) The
Administrative Agent (or its counsel, Winstead PC) shall have received (i) from each party hereto either (A) a counterpart
of this Amendment signed on behalf of such party or (B) written evidence satisfactory to the Administrative Agent (which
may include fax or other electronic transmission of a signed signature page of this Amendment) that such party has signed a counterpart
of this Amendment, (ii) duly executed copies of the other Loan Documents, including, but not limited to, the Security Agreement,
and such other certificates, documents, instruments and agreements as the Administrative Agent shall reasonably request in connection
with the transactions contemplated by this Amendment and (iii) a written opinion of the Loan Parties’ counsel (including
the opinion of the Loan Parties’ General Counsel), addressed to the Administrative Agent, the Issuing Bank and the Lenders in
substantially the form of Exhibit B to the Agreement or any other form approved by the Administrative Agent (which shall
include, without limitation, opinions with respect to the due organization and valid existence of each Loan Party, opinions as
to continued perfection of certain of the Liens granted to the Administrative Agent pursuant to the Collateral Documents and opinions
as to the non-contravention of the Loan Parties’ organizational documents and Material Contracts), each of which shall be in form
and substance satisfactory to the Administrative Agent.


 






    SECOND AMENDMENT TO CREDIT AGREEMENT, Page 2


     


    

 


(b) The
Administrative Agent shall have received (i) a certificate, in form and substance satisfactory to the Administrative Agent,
of each Loan Party, dated the Second Amendment Effective Date and executed by its Secretary or Assistant Secretary or, in the
case of any Subsidiary that is a partnership or limited liability company, its general partner, manager or member, which shall
(A) certify the resolutions of its Board of Directors, members or other body authorizing the execution, delivery and performance
of the Loan Documents to which it is a party, (B) identify by name and title and bear the signatures of the officers of such
Loan Party or its manager or member, as applicable, authorized to sign the Loan Documents to which it is a party and, in the case
of the Borrower, its Financial Officers, and (C) contain appropriate attachments, including the charter, articles or certificate
of organization or incorporation of each Loan Party certified by the relevant authority of the jurisdiction of organization of
such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, or other organizational
or governing documents, and (ii) a good standing certificate for each Loan Party from its jurisdiction of organization and
each other state in which the failure to so qualify and be in good standing could reasonably be expected to have a Material Adverse
Effect.


 


(c) The
Administrative Agent shall have received a certificate or certificates executed by an Authorized Officer of the Borrower as of
the Second Amendment Effective Date, in form and substance reasonably acceptable to the Administrative Agent stating that (i)
there does not exist any pending or ongoing, action, suit, investigation, litigation or proceeding in any court or before any
other Governmental Authority (A) affecting the Agreement or the other Loan Documents, that has not been settled, dismissed, vacated,
discharged or terminated prior to the Second Amendment Effective Date or (B) that purports to affect any Loan Party or any of
its Subsidiaries, or any Transaction, which action, suit, investigation, litigation or proceeding which, if adversely determined,
could reasonably be expected to have a Material Adverse Effect, that has not been settled, dismissed, vacated, discharged or terminated
prior to the Second Amendment Effective Date, (ii) immediately after giving effect to this Amendment, the Agreement, the other
Loan Documents, and all the Transactions contemplated to occur on such date, (A) no Default or Event of Default exists and (B)
all representations and warranties contained herein and in the other Loan Documents are true and correct in all material respects,
and (iii) each of the other conditions precedent in this Section 4.1 have been satisfied, except to the extent the satisfaction
of any such condition is subject to the judgment or discretion of the Administrative Agent or any Lender.


 


(d) The
Administrative Agent shall have received an officer’s certificate prepared by a Financial Officer of the Borrower as to the financial
condition, solvency and related matters of the Loan Parties and their Subsidiaries, after giving effect to the Transactions under
the Loan Documents, in form and substance acceptable to the Administrative Agent.


 


(e) The
Administrative Agent shall have received (i) all documentation and other information regarding the Borrower requested in
connection with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT
Act, and (ii) to the extent requested in writing of the Borrower prior to the Second Amendment Effective Date, (x) a properly
completed and signed IRS Form W-8 or W-9, as applicable, for each Loan Party, and (y) to the extent the Borrower qualify as a
“legal entity customer” under the Beneficial Ownership Regulation, any Lender that has requested, in a written notice
to the Borrower, a Beneficial Ownership Certification in relation to the Borrower shall have received such Beneficial Ownership
Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Amendment, the condition
set forth in this clause (y) shall be deemed to be satisfied).


 






    SECOND AMENDMENT TO CREDIT AGREEMENT, Page 3


     


    

 


(f) The
Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent:


 


(i) (A)
searches of UCC filings in the jurisdiction of incorporation or formation, as applicable, of each Loan Party, copies of the financing
statements on file in such jurisdictions and evidence that no Liens exist other than Permitted Liens and (B) tax lien and judgment
searches;


 


(ii) searches
of ownership of Intellectual Property in the appropriate governmental offices and such patent/trademark/copyright filings as requested
by the Administrative Agent in order to perfect the Administrative Agent’s security interest in the Intellectual Property;


 


(iii) to
the extent not previously delivered, completed UCC financing statements for each appropriate jurisdiction as is necessary, in
the Administrative Agent’s sole discretion, to perfect the Administrative Agent’s security interest in the Collateral;


 


(iv) to
the extent not previously delivered, stock or membership certificates, if any, evidencing the Equity Interests pledged to the
Administrative Agent pursuant to the Security Agreement and undated stock or transfer powers duly executed in blank;


 


(v) to
the extent not previously delivered, each promissory note (if any) pledged to the Administrative Agent pursuant to the Security
Agreement endorsed (without recourse) in blank (or accompanied by an executed transfer form in blank) by the pledgor thereof;


 


(vi) to
the extent not previously delivered, duly executed consents as are necessary, in the Administrative Agent’s sole discretion, to
perfect the Lenders’ security interest in the Collateral; and


 


(vii) to
the extent not previously delivered, all instruments, documents and chattel paper in the possession of any of the Loan Parties,
together with allonges or assignments as may be necessary or appropriate to perfect the Administrative Agent’s and the Lenders’
security interest in the Collateral, in each case to the extent required to be delivered pursuant to the terms of the Collateral
Documents.


 


(g) The
Administrative Agent shall have received (i) a $30,000,000 prepayment of the Obligations, which prepayment shall be applied
to prepay the Revolving Loans (corresponding to the reduction in the aggregate Revolving Commitments set forth in Section 3.1
hereof), and (ii) a payment of all break funding expenses required under Section 2.14 of the Agreement as a result of such
prepayment.


 


(h) The
Administrative Agent shall have received upfront fees for the benefit of each Lender (including JPMorgan Chase Bank, N.A. in its
capacity as a Lender) that timely executes and delivers a signature page to this Amendment in the amount of twenty (20) basis
points, based on such Lender’s pro rata share of the aggregate Revolving Commitments of all Lenders (after giving effect to the
reduction of the aggregate Revolving Commitment of all Lenders on the Second Amendment Effective Date), which fees shall be due
and payable on the Second Amendment Effective Date.


 


(i) The
Lenders and the Administrative Agent shall have received all fees required to be paid, and all expenses required to be reimbursed
for which invoices have been presented (including the reasonable fees and expenses of legal counsel), on or before the Second
Amendment Effective Date.


 


(j) The
Administrative Agent shall have received a current organizational chart.


 






    SECOND AMENDMENT TO CREDIT AGREEMENT, Page 4


     


    

 


(k) The
Administrative Agent shall have received such other documents as the Administrative Agent, the Issuing Bank or their respective
counsel may have reasonably requested.


 


(l) The
representations and warranties of the Loan Parties set forth in this Amendment and the other Loan Documents shall be true and
correct in all material respects with the same effect as though made on and as of the Second Amendment Effective Date (it being
understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be required
to be true and correct in all material respects only as of such specified date, and that any representation or warranty which
is subject to any materiality qualifier shall be required to be true and correct in all respects).


 


(m) No
Default shall have occurred and be continuing.


 


(n) All
proceedings taken in connection with the transactions contemplated by this Amendment and all documentation and other legal matters
incident thereto shall be satisfactory to the Administrative Agent and its legal counsel, Winstead PC.


 


ARTICLE
5.



Ratifications, Representations and Warranties


 


Section
5.1. Ratifications. The terms and provisions set forth in this Amendment shall modify and supersede all inconsistent
terms and provisions set forth in the Agreement and except as expressly modified and superseded by this Amendment and the First
Amended and Restated Security Agreement, dated as of the date hereof, among the Borrower, the other Loan Parties and the Administrative
Agent (the “Amended and Restated Security Agreement”) the terms and provisions of the Agreement and the other
Loan Documents are ratified and confirmed and shall continue in full force and effect. The Borrower, each other Loan Party, the
Administrative Agent, and the Lenders party hereto agree that the Agreement as amended hereby, the Security Agreement (as such
term is defined prior to giving effect to this Amendment) as amended and restated by the Amended and Restated Security Agreement
and the other Loan Documents shall continue to be legal, valid and binding obligation of each Loan Party, enforceable against
such Loan Party in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law). The Borrower and each other Loan Parties agrees that the obligations,
indebtedness and liabilities of the Borrower and the other Loan Parties arising under this Amendment are “Secured Obligations”
as defined in the Agreement. For all matters arising prior to the effective date of this Amendment (including, without limitation,
the accrual and payment of interest and fees and compliance with financial covenants), the terms of the Agreement (as unmodified
by this Amendment) shall control and are hereby ratified and confirmed.


 






    SECOND AMENDMENT TO CREDIT AGREEMENT, Page 5


     


    

 


Section
5.2. Representations and Warranties. Each Loan Party hereby represents and warrants to the Administrative Agent and
the Lenders as follows: (a) prior to and after giving effect hereto, no Default has occurred and is continuing; (b) prior
to and after giving effect hereto, the representations and warranties of the Loan Parties set forth in the Loan Documents are
true and correct in all material respects with the same effect as though made on and as of the Second Amendment Effective Date
(it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be
required to be true and correct in all material respects only as of such specified date, and that any representation or warranty
which is subject to any materiality qualifier shall be required to be true and correct in all respects); (c) the execution,
delivery and performance by each Loan Party of this Amendment and each other Loan Document to which such Loan Party is a party,
the borrowings thereunder and the use of the proceeds of the Revolving Loans (i) will not violate any applicable Requirement
of Law of any Loan Party (except those as to which waivers or consents have been obtained), (ii) will not conflict with,
result in a breach of or constitute a default under the articles of incorporation, bylaws, articles of organization, operating
agreement or other organization documents of the Loan Parties or any Material Contract to which such Person is a party or by which
any of its properties may be bound or any material approval or material consent from any Governmental Authority relating to such
Person, and (iii) will not result in, or require, the creation or imposition of any Lien on any Loan Party’s properties or
revenues pursuant to any Requirement of Law or Contractual Obligation other than the Liens arising under or contemplated in connection
with the Loan Documents or Permitted Liens; (d) this Amendment constitutes a legal, valid and binding obligation of each
Loan Party, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium
or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered
in a proceeding in equity or at law; (e) on the Second Amendment Effective Date, such Loan Party has the requisite corporate,
limited liability company or partnership power and authority and the legal right to own and operate all its material property,
to lease the material property it operates as lessee and to conduct the business in which it is currently engaged and has taken
all actions necessary to maintain all material rights, privileges, licenses and franchises necessary or required in the normal
conduct of its business; (f) on the Second Amendment Effective Date, such Loan Party is duly qualified to conduct business
and is in good standing under the laws of (i) the jurisdiction of its organization or formation, (ii) the jurisdiction
where its chief executive office is located and (iii) each jurisdiction where its ownership, lease or operation of property
or the conduct of its business requires such qualification except, in the case of this clause (iii) only, to the extent that the
failure to so qualify and be in good standing in any other jurisdiction could not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect; (g) on the Second Amendment Effective Date, such Loan Party is in compliance
with all applicable material Requirements of Law, organizational documents, material government permits and material government
licenses; (h) on the Second Amendment Effective Date, (i) no Loan Party has received a written notice of default under
or with respect to any of its Material Contracts and (ii) no Loan Party is in default under or with respect to any of its
Contractual Obligations (other than Material Contracts) except where such default could not reasonably be expected to have a Material
Adverse Effect; (i) on the Second Amendment Effective Date, each Loan Party and its Subsidiaries enjoys peaceful and undisturbed
possession under all of its real property leases and (i) the lease for its headquarters buildings is valid and subsisting and
in full force and effect and (ii) all other leases are valid and subsisting and in full force and effect except as could
not reasonably be expected to have a Material Adverse Effect; and (j) since December 29, 2019 (and, in addition, after any
subsequent public disclosure by the Borrower made after December 29, 2019 and prior to the Second Amendment Effective Date), there
has been no development or event which has had or could reasonably be expected to have a Material Adverse Effect.


 


ARTICLE
6.



Miscellaneous


 


Section
6.1. Survival of Representations and Warranties. All covenants, agreements, representations and warranties made by the
Loan Parties in this Amendment, the other Loan Documents and in the certificates or other instruments delivered in connection
with or pursuant to this Amendment, the 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 this Amendment, the other 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 the Administrative Agent, the Issuing Bank or any Lender may have had notice or knowledge of any 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 the Agreement is
outstanding and unpaid or any Letter of Credit is outstanding and so long as the Commitments have not expired or terminated. Except
as otherwise amended by this Amendment, the provisions of Sections 2.13, 2.14, 2.16 and 9.03 and Article VIII of the Agreement
shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby or thereby,
the repayment of the Loans, the expiration or termination of the Letters of Credit and the Commitments or the termination of this
Amendment, the Agreement or any other Loan Document or any provision hereof or thereof.


 






    SECOND AMENDMENT TO CREDIT AGREEMENT, Page 6


     


    

 


Section
6.2. Reference to Agreement. Each of the Loan Documents, including the Agreement and any and all other agreements, documents,
or instruments now or hereafter executed and delivered pursuant to the terms hereof or pursuant to the terms of the Agreement
as amended hereby, are hereby amended so that any reference in such Loan Documents to the Agreement shall mean a reference to
the Agreement as amended hereby.


 


Section
6.3. Loan Document. This Amendment is a Loan Document and is subject to the terms of the Agreement.


 


Section
6.4. Expenses of the Administrative Agent. As provided in the Agreement, the Loan Parties, jointly and severally, shall,
pay all reasonable out-of-pocket expenses incurred by the Administrative Agent and its Affiliates, including the reasonable fees,
charges and disbursements of Winstead PC and other fees, charges and disbursements of any local or special counsel for the Administrative
Agent, to the extent applicable, in connection with the preparation and administration of this Amendment and the other Loan Documents
in accordance with the terms of Section 9.03 of the Agreement and the other terms and provisions of the Agreement and the
other Loan Documents.


 


Section
6.5. Severability. Any provision of this Amendment held to be invalid, illegal or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting
the validity, legality and enforceability of the remaining provisions thereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other jurisdiction.


 


Section
6.6. Applicable Law. This Amendment and all other Loan Documents executed pursuant hereto (other than those containing
a contrary express choice of law provision) shall be governed by and construed in accordance with the internal laws of the State
of New York, but giving effect to federal laws applicable to national banks.


 


Section
6.7. Successors and Assigns. This Amendment is binding upon and shall inure to the benefit of the parties hereto and
their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of
Credit), except that (i) no Loan Party may assign or otherwise transfer any of its rights or obligations hereunder without the
prior written consent of each Lender (and any attempted assignment or transfer by a Loan Party without such consent shall be null
and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with Section
9.04 of the Agreement.


 






    SECOND AMENDMENT TO CREDIT AGREEMENT, Page 7


     


    

 


Section
6.8. Counterparts. This Amendment may be executed in counterparts (and by different parties hereto on different counterparts),
each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery
of an executed counterpart of a signature page of this Amendment or any other Loan Document by telecopy, emailed pdf. or any other
electronic means that reproduces an image of the actual executed signature page shall be effective as delivery of a manually executed
counterpart of this Amendment or such other Loan Document. The words “execution,” “signed,” “signature,”
“delivery,” and words of like import in or relating to any document to be signed in connection with this Amendment,
the other Loan Documents and the transactions contemplated hereby or thereby shall be deemed to include Electronic Signatures,
deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability
as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may
be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National
Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic
Transactions Act; provided that nothing herein shall require the Administrative Agent to accept electronic signatures in
any form or format without its prior written consent.


 


Section
6.9. Effect of Waiver. No consent or waiver, express or implied, by the Administrative Agent or any Lender to or for
any breach of or deviation from any covenant, condition or duty by any one or more of the Borrower or any other Loan Party shall
be deemed a consent or waiver to or of any other breach of the same or any other covenant, condition or duty.


 


Section
6.10. Headings. The headings, captions, and arrangements used in this Amendment are for convenience only and shall not
affect the interpretation of this Amendment.


 


Section
6.11. ENTIRE AGREEMENT. THIS AMENDMENT AND ALL OTHER INSTRUMENTS, DOCUMENTS AND AGREEMENTS EXECUTED AND DELIVERED IN
CONNECTION WITH THIS AMENDMENT REPRESENT THE FINAL AGREEMENTS BETWEEN OR AMONG THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF
AND THEREOF AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE
ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN OR AMONG THE PARTIES.


 






    SECOND AMENDMENT TO CREDIT AGREEMENT, Page 8


     


    

 


ARTICLE
7.



RELEASE; LIMITATION OF LIABILITY; ETC.


 


Section
7.1. RELEASE. IN CONSIDERATION OF THE ADMINISTRATIVE AGENT AND THE LENDERS’ WILLINGNESS TO ENTER INTO THIS AMENDMENT,
EACH OF THE BORROWER, EACH OTHER LOAN PARTY AND EACH GUARANTOR ACKNOWLEDGES AND IRREVOCABLY AGREES THAT, AS OF THE DATE HEREOF:
(A) IT HAS NO CLAIMS OR CAUSES OF ACTION AGAINST THE ADMINISTRATIVE AGENT, THE LENDERS, EACH OTHER SECURED PARTY, EACH RELATED
PARTY TO EACH OF THE FOREGOING, AND ALL AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, COUNSEL, AGENTS, ATTORNEYS-IN-FACT, SUCCESSORS
AND ASSIGNS OF EACH OF THE FOREGOING (COLLECTIVELY, THE “RELEASED PARTIES”) ARISING OUT OF OR IN ANY WAY RELATING
TO ANY OF THE LOAN DOCUMENTS OR ANY AGREEMENTS, DOCUMENTS, INSTRUMENTS, DEALINGS OR OTHER MATTERS CONNECTED WITH ANY OF THE LOAN
DOCUMENTS; (B) THE OBLIGATIONS, INDEBTEDNESS AND LIABILITIES UNDER THE AGREEMENT AND EACH OTHER LOAN DOCUMENT ARE ABSOLUTE
AND UNCONDITIONAL AND IT HAS NO RIGHT OF RESCISSION, OFFSET OR SETOFF RIGHTS, COUNTERCLAIMS, CROSS-COMPLAINTS, CLAIMS, DEMANDS
OR DEFENSES OF ANY KIND AGAINST ANY OF ITS OBLIGATIONS, INDEBTEDNESS OR LIABILITIES TO ANY OF THE RELEASED PARTIES ARISING OUT
OF OR IN ANY WAY RELATING TO ANY OF THE LOAN DOCUMENTS OR ANY AGREEMENTS, DOCUMENTS, INSTRUMENTS, DEALINGS OR OTHER MATTERS CONNECTED
WITH ANY OF THE LOAN DOCUMENTS; AND (C) EACH OF THE RELEASED PARTIES HAVE HERETOFORE PROPERLY PERFORMED AND SATISFIED IN
A TIMELY MANNER ALL OF THEIR OBLIGATIONS, IF ANY, TO THE BORROWER, EACH OTHER LOAN PARTY AND EACH GUARANTOR UNDER EACH OF THE
LOAN DOCUMENTS TO DATE. EACH LOAN PARTY AND EACH GUARANTOR, ON ITS OWN BEHALF AND ON BEHALF OF EACH OF ITS SUCCESSORS AND ASSIGNS
(COLLECTIVELY, THE “RELEASORS”), HEREBY FULLY, FINALLY, UNCONDITIONALLY AND IRREVOCABLY WAIVES, RELEASES AND
FOREVER DISCHARGES EACH OF THE RELEASED PARTIES FROM ANY AND ALL DEBTS, CLAIMS, OBLIGATIONS, DAMAGES, COSTS, EXPENSES, ATTORNEY’S
FEES, FINANCIAL ADVISOR FEES, SUITS, LIABILITIES, DEMANDS, ACTIONS, PROCEEDINGS, AND CAUSES OF ACTION WHATSOEVER, IN EACH CASE,
WHETHER KNOWN OR UNKNOWN, ANTICIPATED OR UNANTICIPATED, SUSPECTED OR UNSUSPECTED, FIXED, CONTINGENT OR CONDITIONAL, DIRECT OR
INDIRECT, AND OF WHATEVER NATURE OR DESCRIPTION, AND WHETHER AT LAW OR IN EQUITY, UNDER CONTRACT, TORT, STATUTE, VIOLATION OF
LAW OR REGULATION OR OTHERWISE (COLLECTIVELY, THE “CLAIMS”) WHICH ANY RELEASOR HAS HERETOFORE HAD OR HEREAFTER
CAN, SHALL OR MAY HAVE AGAINST ANY RELEASED PARTY BY REASON OF ANY ACT, OMISSION OR THING WHATSOEVER DONE OR OMITTED TO BE DONE
ARISING OUT OF OR IN ANY WAY RELATING TO ANY OF THE LOAN DOCUMENTS OR ANY AGREEMENTS, DOCUMENTS, INSTRUMENTS, DEALINGS OR OTHER
MATTERS CONNECTED WITH ANY OF THE LOAN DOCUMENTS (INCLUDING, WITHOUT LIMITATION, ANY CONTRACTING FOR, CHARGING, TAKING, RESERVING,
COLLECTING OR RECEIVING INTEREST IN EXCESS OF THE HIGHEST LAWFUL RATE APPLICABLE, THE EXERCISE OF ANY RIGHTS OR REMEDIES UNDER
THE AGREEMENT OR ANY OTHER LOAN DOCUMENT, AND THE NEGOTIATION FOR AND EXECUTION OF THIS AMENDMENT), IN EACH CASE, TO THE EXTENT
ARISING ON OR PRIOR TO THE SECOND AMENDMENT EFFECTIVE DATE. THE WAIVERS, RELEASES, AND DISCHARGES OF THIS ARTICLE 7
SHALL BE EFFECTIVE ON THE SECOND AMENDMENT EFFECTIVE DATE, REGARDLESS OF WHETHER ANY OF THE COVENANTS OR AGREEMENTS IN THIS AMENDMENT
ARE SATISFIED AND REGARDLESS OF ANY OTHER EVENT THAT MAY OCCUR OR NOT OCCUR AFTER THE SECOND AMENDMENT EFFECTIVE DATE. THE RELEASORS
AGREE NOT TO SUE ANY RELEASED PARTY OR IN ANY WAY ASSIST ANY OTHER PERSON IN SUING ANY RELEASED PARTY WITH RESPECT TO ANY CLAIM
RELEASED HEREIN. THIS ARTICLE 7 MAY BE PLEADED AS A FULL AND COMPLETE DEFENSE TO, AND MAY BE USED AS THE BASIS FOR AN INJUNCTION
AGAINST, ANY ACTION, SUIT, OR OTHER PROCEEDING WHICH MAY BE INSTITUTED, PROSECUTED, OR ATTEMPTED IN BREACH OF THE RELEASE CONTAINED
HEREIN.


 


Section
7.2. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AMENDMENT OR ANY OTHER LOAN
DOCUMENT TO THE CONTRARY, NONE OF THE RELEASED PARTIES SHALL BE LIABLE FOR ANY SPECIAL, RELIANCE, CONSEQUENTIAL, EXEMPLARY, PUNITIVE,
INCIDENTAL OR INDIRECT DAMAGES, INCLUDING WITHOUT LIMITATION, FOR LOSS OF PROFITS OR INCOME, LOSS OF USE OR LOSS OF TIME, WHETHER
IN CONTRACT, TORT, OR OTHERWISE RESULTING FROM ANY RELEASED PARTY’S OR RELEASOR’S PERFORMANCE, NON-PERFORMANCE OR DELAY IN PERFORMANCE
OF ITS OBLIGATIONS UNDER THIS AMENDMENT OR ANY OTHER LOAN DOCUMENT, WHETHER OR NOT ANY RELEASOR OR RELEASED PARTY (AS APPLICABLE)
HAD KNOWLEDGE OF THE CIRCUMSTANCES THAT RESULTED IN THE SPECIAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES OR INJURY, OR HAD
NOTICE OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING, OR COULD HAVE FORESEEN THAT SUCH DAMAGES OR INJURY WOULD OCCUR; AND EACH
RELEASOR, ON BEHALF OF ITSELF AND EACH OF ITS SUCCESSORS AND ASSIGNS, HEREBY IRREVOCABLY WAIVES, RELEASES AND AGREES NOT TO SUE
UPON ANY SUCH CLAIM FOR ANY SUCH DAMAGES, WHETHER OR NOT ACCRUED AND WHETHER OR NOT KNOWN OR SUSPECTED TO EXIST IN ITS FAVOR.


 






    SECOND AMENDMENT TO CREDIT AGREEMENT, Page 9


     


    

 


Section
7.3. RELEASORS’ ACKNOWLEDGMENTS. EACH RELEASOR ACKNOWLEDGES, WARRANTS AND REPRESENTS TO EACH RELEASED PARTY THAT:


 


(a) SUCH
RELEASOR (I) HAS READ AND UNDERSTANDS THE EFFECT OF THE WAIVERS, RELEASES AND OTHER AGREEMENTS CONTAINED IN THIS ARTICLE 7,
(II) HAS HAD THE ASSISTANCE OF INDEPENDENT COUNSEL OF ITS OWN CHOICE, OR HAS HAD THE OPPORTUNITY TO RETAIN SUCH INDEPENDENT
COUNSEL, IN REVIEWING, DISCUSSING AND CONSIDERING ALL THE TERMS OF THE WAIVERS, RELEASES, AND OTHER AGREEMENTS CONTAINED IN THIS
ARTICLE 7, AND (III) BEFORE THE EXECUTION AND DELIVERY OF THIS AMENDMENT, SUCH RELEASOR HAS HAD ADEQUATE OPPORTUNITY
TO MAKE WHATEVER INVESTIGATION OR INQUIRY IT MAY DEEM NECESSARY OR DESIRABLE IN CONNECTION WITH THE SUBJECT MATTER OF THE WAIVERS,
RELEASES AND OTHER AGREEMENTS CONTAINED IN THIS ARTICLE 7;


 


(b) SUCH
RELEASOR HAS EXECUTED AND DELIVERED THIS AMENDMENT AND THE WAIVERS, RELEASES AND OTHER AGREEMENTS CONTAINED IN THIS ARTICLE 7
AS ITS FREE AND VOLUNTARY ACT, WITHOUT ANY DURESS, COERCION, OR UNDUE INFLUENCE EXERTED BY OR ON BEHALF OF ANY PERSON; AND


 


(c) SUCH
RELEASOR IS THE SOLE OWNER OF THE CLAIMS RELEASED BY THE RELEASES CONTAINED IN THIS ARTICLE 7, AND SUCH RELEASOR HAS
NOT HERETOFORE CONVEYED OR ASSIGNED ANY INTEREST IN ANY SUCH CLAIMS TO ANY OTHER PERSON. THE INCLUSION OF THIS PROVISION WILL
NOT BE DEEMED TO BE AN ADMISSION BY ANY RELEASED PARTY THAT ANY SUCH CLAIMS EXIST.


 


Section
7.4. SURVIVAL. EACH OF THE PROVISIONS SET FORTH IN THIS ARTICLE 7 SHALL SURVIVE THE TERMINATION OR EXPIRATION
OF THIS AMENDMENT, THE AGREEMENT, THE OTHER LOAN DOCUMENTS, AND THE REPAYMENT OF ALL THE OBLIGATIONS, INDEBTEDNESS AND LIABILITIES
TO ANY OF THE RELEASED PARTIES ARISING OUT OF OR IN ANY WAY RELATING TO ANY OF THE LOAN DOCUMENTS.


 


[Signatures
on Following Pages.]


 






    SECOND AMENDMENT TO CREDIT AGREEMENT, Page 10


     


    

 





Executed
as of the date first written above.


 


	BORROWER:	FIESTA RESTAURANT GROUP, INC.,
	 	a Delaware corporation 
	 	 	 
	 	By:	/s/
    Dirk Montgomery
	 	Name: 	Dirk
    Montgomery
	 	Title:	Senior
    Vice President, Chief Financial  Officer and Treasurer
	 	 	 
	GUARANTORS:	CABANA BEVERAGES, INC.,
	 	a Texas corporation 
	 	 	 
	 	By:	/s/
    Louis DiPietro
	 	Name:	Louis
    DiPietro
	 	Title:	President
	 	 	 
	 	CABANA BEVCO LLC,
	 	a Texas limited liability company
	 	 	 
	 	By:	/s/
    Louis DiPietro
	 	Name:	Louis
    DiPietro
	 	Title:	Manager
	 	 	 
	 	CABANA GRILL, INC.,
	 	a Delaware corporation
	 	 	 
	 	By:	/s/
    Dirk Montgomery
	 	Name:	Dirk
    Montgomery
	 	Title:	Senior
    Vice President, Chief Financial  Officer and Treasurer
	 	 	 
	 	POLLO TROPICAL MANAGEMENT, LLC,
	 	a Texas limited liability company
	 	 	 
	 	By:	/s/
    Louis DiPietro
	 	Name:	Louis
    DiPietro
	 	Title:	Manager



 






    SECOND AMENDMENT TO CREDIT AGREEMENT, Signature Page


     


    

 


	 	POLLO TROPICAL BEVERAGES, LLC,
	 	a Texas limited liability company
	 	 	 
	 	By:	/s/
    Louis DiPietro
	 	Name:	Louis
    DiPietro
	 	Title:	Manager
	 	 	 
	 	POLLO FRANCHISE, INC.,
	 	a Florida corporation
	 	 	 
	 	By:	/s/ Dirk
    Montgomery
	 	Name:	Dirk
    Montgomery
	 	Title:	Senior
    Vice President, Chief Financial  Officer and Treasurer
	 	 	 
	 	POLLO OPERATIONS, INC.,
	 	a Florida corporation
	 	 	 
	 	By:	/s/
    Dirk Montgomery
	 	Name:	Dirk
    Montgomery
	 	Title:	Senior
    Vice President, Chief Financial  Officer and Treasurer
	 	 	 
	 	TACO CABANA, INC.,
	 	a Delaware corporation
	 	 	 
	 	By:	/s/
    Dirk Montgomery
	 	Name:	Dirk
    Montgomery
	 	Title:	Senior
    Vice President, Chief Financial  Officer and Treasurer
	 	 	 
	 	TP ACQUISITION CORP.,
	 	a Texas corporation
	 	 	 
	 	By:	/s/
    Dirk Montgomery
	 	Name:	Dirk
    Montgomery
	 	Title:	Senior
    Vice President, Chief Financial  Officer and Treasurer



 






    SECOND AMENDMENT TO CREDIT AGREEMENT, Signature Page


     


    

 


	 	TC BEVCO LLC,
	 	a Texas limited liability company
	 	 	 
	 	By:	/s/
    Louis DiPietro
	 	Name:	Louis
    DiPietro
	 	Title:	Manager
	 	 	 
	 	T.C. MANAGEMENT, INC.,
	 	a Delaware corporation
	 	 	 
	 	By:	/s/
    Dirk Montgomery
	 	Name:	Dirk
    Montgomery
	 	Title:	Senior
    Vice President, Chief Financial  Officer and Treasurer
	 	 	 
	 	TPAQ HOLDING CORPORATION,
	 	a Delaware corporation
	 	 	 
	 	By:	/s/
    Dirk Montgomery
	 	Name:	Dirk
    Montgomery
	 	Title:	Senior
    Vice President, Chief Financial  Officer and Treasurer
	 	 	 
	 	TEXAS TACO CABANA, L.P.,
	 	a Texas limited partnership
	 	 	 
	 	By:	T.C.
    Management, Inc.,
	 	 	its
    general partner
	 	 	 
	 	By:	/s/
    Dirk Montgomery
	 	Name:	Dirk
    Montgomery
	 	Title:	Senior
    Vice President, Chief Financial  Officer and Treasurer


 






    SECOND AMENDMENT TO CREDIT AGREEMENT, Signature Page


     


    

 


	 	JPMORGAN
    CHASE BANK, N.A., individually, and as Administrative Agent and Issuing Bank
	 	 	 
	 	By:	/s/
    Logan Lanier
	 	Name: 	Logan
    Lanier
	 	Title:	Authorized
    Officer


 









    SECOND AMENDMENT TO CREDIT AGREEMENT, Signature Page


     


    

 


	 	CADENCE BANK NA, as a Lender
	 	 	 
	 	By:	/s/
    Mary Katherine Franklin
	 	Name: 	Mary
    Katherine Franklin
	 	Title:	Senior
    Vice President


 









    SECOND AMENDMENT TO CREDIT AGREEMENT, Signature Page


     


    

 


	 	Fifth
    Third Bank, National Association, as a Lender
	 	 	 
	 	By:	/s/
    Terick R. Hinze
	 	Name: 	Terick
    R Hinze
	 	Title:	Vice
    President


 






    SECOND AMENDMENT TO CREDIT AGREEMENT, Signature Page


     


    

 


Annex
I to Second Amendment to Credit Agreement


 





 


		



 


CREDIT AGREEMENT


 


dated as of


 


November 30, 2017


 


As amended by the First Amendment to Credit
Agreement, dated as of March 9, 2018 and the Second Amendment to Credit Agreement, dated as of July 10, 2020,


 


and as waived by the Limited Waiver to Credit
Agreement, dated as of October 18, 2019


 


among


 


FIESTA RESTAURANT GROUP, INC.,

as Borrower


 


The Lenders Party Hereto


 


and


 


JPMORGAN CHASE BANK, N.A.,


as Administrative Agent


 


JPMORGAN CHASE BANK, N.A., and


WELLS FARGO SECURITIES, LLC

as Joint Lead Bookrunners and Joint Lead Arrangers


 


WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Syndication Agent


 


 




    


     


    

 


TABLE OF CONTENTS


 


	 	Page
	 	 
	ARTICLE I Definitions	1
	SECTION 1.01.	Defined Terms	1
	SECTION 1.02.	Classification of Loans and Borrowings	31
	SECTION 1.03.	Terms Generally	31
	SECTION 1.04.	Accounting Terms; GAAP	31
	SECTION 1.05.	Financial Covenant Calculations	32
	SECTION 1.06.	Status of Obligations	32
	SECTION 1.07.	Interest Rates; LIBOR Notification	32
	 	 	 
	ARTICLE II The Credits	33
	SECTION 2.01.	Revolving Commitments	33
	SECTION 2.02.	Loans and Borrowings	33
	SECTION 2.03.	Requests for Borrowings	33
	SECTION 2.04.	Letters of Credit	34
	SECTION 2.05.	Funding of Borrowings	39
	SECTION 2.06.	Interest Elections	40
	SECTION 2.07.	Termination and Reduction of Commitments	41
	SECTION 2.08.	Repayment of Loans; Evidence of Debt	42
	SECTION 2.09.	Prepayment of Loans	43
	SECTION 2.10.	Fees	44
	SECTION 2.11.	Interest	45
	SECTION 2.12.	Alternate Rate of Interest; Illegality	46
	SECTION 2.13.	Increased Costs	47
	SECTION 2.14.	Break Funding Payments	48
	SECTION 2.15.	Taxes	49
	SECTION 2.16.	Payments Generally; Allocation of Proceeds; Sharing of Set-offs	52
	SECTION 2.17.	Mitigation Obligations; Replacement of Lenders	54
	SECTION 2.18.	Defaulting Lenders	55
	SECTION 2.19.	Returned Payments	57
	SECTION 2.20.	Banking Services and Swap Agreements	57
	 	 	 
	ARTICLE III Representations and Warranties	57
	SECTION 3.01.	Financial Condition	57
	SECTION 3.02.	No Material Adverse Effect	58
	SECTION 3.03.	Corporate Existence; Compliance with Law; Patriot Act Information.	58
	SECTION 3.04.	Corporate Power; Authorization; Enforceable Obligations	58
	SECTION 3.05.	No Legal Bar; No Default	58
	SECTION 3.06.	No Material Litigation.	59
	SECTION 3.07.	Investment Company Act; etc	59
	SECTION 3.08.	Margin Regulations	59
	SECTION 3.09.	ERISA	59
	SECTION 3.10.	Environmental Matters	59
	SECTION 3.11.	Use of Proceeds	60
	SECTION 3.12.	Subsidiaries; Joint Ventures; Partnerships	60
	SECTION 3.13.	Ownership	60
	SECTION 3.14.	Consent; Governmental Authorizations	61
	SECTION 3.15.	Taxes	61



 



    i


     


    

 


	SECTION 3.16.	Collateral Representations	61
	SECTION 3.17.	Employment Matters	62
	SECTION 3.18.	Brokers’ Fees	62
	SECTION 3.19.	Labor Matters	62
	SECTION 3.20.	Accuracy and Completeness of Information	62
	SECTION 3.21.	Anti-Corruption Laws and Sanctions	63
	SECTION 3.22.	Material Contracts	63
	SECTION 3.23.	Insurance	63
	SECTION 3.24.	EEA Financial Institutions	63
	SECTION 3.25.	Classification of Senior Indebtedness	63
	SECTION 3.26.	Anti-Terrorism Laws	64
	SECTION 3.27.	Authorized Officer	64
	SECTION 3.28.	EEA Financial Institutions	64
	SECTION 3.29.	Existing Indebtedness, Liens and Investments	64
	SECTION 3.30.	Plan Assets; Prohibited Transactions	64
	 	 	 
	ARTICLE IV Conditions	65
	SECTION 4.01.	Effective Date	65
	SECTION 4.02.	Each Credit Event	68
	 	 	 
	ARTICLE V Affirmative Covenants	68
	SECTION 5.01.	Financial Statements	68
	SECTION 5.02.	Certificates; Other Information	70
	SECTION 5.03.	Payment of Taxes and Other Obligations	72
	SECTION 5.04.	Conduct of Business and Maintenance of Existence	72
	SECTION 5.05.	Maintenance of Property; Insurance	72
	SECTION 5.06.	Maintenance of Books and Records	72
	SECTION 5.07.	Notices	73
	SECTION 5.08.	Use of Proceeds	74
	SECTION 5.09.	Environmental Laws	74
	SECTION 5.10.	Financial Covenants.	75
	SECTION 5.11.	Additional Guarantors	76
	SECTION 5.12.	Compliance with Law	76
	SECTION 5.13.	Pledged Assets	76
	SECTION 5.14.	Further Assurances and Other Covenants	77
	SECTION 5.15.	New Restaurants.	78
	SECTION 5.16.	Subordination of Intercompany Debt.	78
	SECTION 5.17.	Post-Closing Matters.	78
	SECTION 5.18.	Depository Bank.	78
	SECTION 5.19.	Conference Calls.	79
	SECTION 5.20.	Retention of Financial Advisor.	79
	SECTION 5.21.	Efficiency Plan.	80
	 	 	 
	ARTICLE VI Negative Covenants	81
	SECTION 6.01.	Indebtedness	81
	SECTION 6.02.	Liens	82
	SECTION 6.03.	Nature of Business	83
	SECTION 6.04.	Consolidation, Merger, Sale or Purchase of Assets, etc	83
	SECTION 6.05.	Advances, Investments and Loans	84
	SECTION 6.06.	Transactions with Affiliates	85
	SECTION 6.07.	Ownership of Subsidiaries; Restrictions	85



 



    ii


     


    



 


	SECTION 6.08.	Corporate Changes; Material Contracts	86
	SECTION 6.09.	Limitation on Restricted Actions	87
	SECTION 6.10.	Restricted Payments	87
	SECTION 6.11.	Reserved	87
	SECTION 6.12.	Sale Leasebacks	87
	SECTION 6.13.	No Further Negative Pledge	88
	SECTION 6.14.	Maximum Capital Expenditures	88
	 	 	 
	ARTICLE VII Events of Default	88
	SECTION 7.01.	Events of Default	88
	SECTION 7.02.	Right to Cure	91
	 	 	 
	ARTICLE VIII The Administrative Agent	93
	SECTION 8.01.	Appointment	93
	SECTION 8.02.	Rights as a Lender	93
	SECTION 8.03.	Duties and Obligations	93
	SECTION 8.04.	Reliance	94
	SECTION 8.05.	Actions through Sub-Agents	94
	SECTION 8.06.	Resignation	94
	SECTION 8.07.	Non-Reliance	95
	SECTION 8.08.	Other Agency Titles	96
	SECTION 8.09.	Not Partners or Co-Venturers; Administrative Agent as Representative of the Secured Parties	96
	SECTION 8.10.	Credit Bidding	96
	 	 	 
	ARTICLE IX Miscellaneous	97
	SECTION 9.01.	Notices	97
	SECTION 9.02.	Waivers; Amendments	99
	SECTION 9.03.	Expenses; Indemnity; Damage Waiver	101
	SECTION 9.04.	Successors and Assigns	103
	SECTION 9.05.	Survival	106
	SECTION 9.06.	Counterparts; Integration; Effectiveness; Electronic Execution	107
	SECTION 9.07.	Severability	107
	SECTION 9.08.	Right of Setoff	108
	SECTION 9.09.	Governing Law; Jurisdiction; Consent to Service of Process	108
	SECTION 9.10.	WAIVER OF JURY TRIAL	108
	SECTION 9.11.	Headings	109
	SECTION 9.12.	Confidentiality	109
	SECTION 9.13.	Several Obligations; Nonreliance; Violation of Law	109
	SECTION 9.14.	PATRIOT Act	109
	SECTION 9.15.	Disclosure	110
	SECTION 9.16.	Appointment for Perfection	110
	SECTION 9.17.	Interest Rate Limitation	110
	SECTION 9.18.	No Fiduciary Duty, etc	110
	SECTION 9.19.	Marketing Consent	111
	SECTION 9.20.	Acknowledgement and Consent to Bail-In of EEA Financial Institutions	111
	SECTION 9.21.	Acknowledgement Regarding Any Supported QFCs	111
	 	 	 
	ARTICLE X Loan Guaranty	112
	SECTION 10.01.	Guaranty	112
	SECTION 10.02.	Guaranty of Payment	112



 



    iii


     


    



 


	SECTION 10.03.	No Discharge or Diminishment of Loan Guaranty	113
	SECTION 10.04.	Defenses Waived	113
	SECTION 10.05.	Rights of Subrogation	114
	SECTION 10.06.	Reinstatement; Stay of Acceleration	114
	SECTION 10.07.	Information	114
	SECTION 10.08.	Termination	114
	SECTION 10.09.	Taxes	114
	SECTION 10.10.	Maximum Liability	115
	SECTION 10.11.	Contribution	115
	SECTION 10.12.	Liability Cumulative	115
	SECTION 10.13.	Keepwell	116


 




    iv


     


    

 


SCHEDULES:


 


Commitment Schedule


Schedule 1.01(a) – Investments


Schedule 1.01(b) – Liens


Schedule 1.01(c) – Existing Letters of Credit


Schedule 1.01(d) – Properties Held for Sale


Schedule 1.01(e) – Properties Held for Sale Leaseback


Schedule 3.03 – Corporate Existence


Schedule 3.12 – Capitalization and Subsidiaries


Schedule 3.16(a) – Intellectual Property


Schedule 3.16(b) – Documents, Instruments and Tangible
Chattel Paper


Schedule 3.16(c) – Commercial Tort Claims


Schedule 3.16(d) – Pledged Equity Interests


Schedule 3.16(e) – Collateral Locations


Schedule 3.22 – Material Contracts


Schedule 3.23 – Insurance


Schedule 3.27 – Authorized Officers


Schedule 3.29 – Existing Indebtedness, Liens and Investments


Schedule 6.01(b) – Indebtedness


 


EXHIBITS:


 


Exhibit A – Assignment and Assumption


Exhibit B – Opinion of
Counsel for the Loan Parties


Exhibit C-1 – U.S. Tax
Compliance Certificate (For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)


Exhibit C-2 – U.S. Tax
Compliance Certificate (For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)


Exhibit C-3 – U.S. Tax
Compliance Certificate (For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)


Exhibit C-4 – U.S. Tax
Compliance Certificate (For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)


Exhibit D-1 – Compliance
Certificate (Annual and Quarterly Financial Statements)


Exhibit D-2 – Compliance
Certificate (Monthly Financial Statements)


Exhibit E – Joinder Agreement


 




    v


     


    

 


CREDIT AGREEMENT dated
as of November 30, 2017 (as it may be amended or modified from time to time, this “Agreement”), among FIESTA
RESTAURANT GROUP, INC., a Delaware corporation, as Borrower, the other Loan Parties party hereto, the Lenders party hereto, and
JPMORGAN CHASE BANK, N.A., as Administrative Agent.


 


The parties hereto agree as follows:


 


ARTICLE I



Definitions


 


SECTION 1.01.
Defined Terms. As used in this Agreement, the following terms have the meanings specified below:


 


“ABR”,
when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, is bearing
interest at a rate determined by reference to the Alternate Base Rate.


 


“Adjusted
Leverage Ratio” means, as of any date of determination, for the Loan Parties and their Subsidiaries on a Consolidated
basis, the ratio of (a) the sum of (i) Consolidated Funded Debt on such date plus (ii) the product of eight
(8) multiplied by Consolidated Rent Expense for the most recently completed twelve (12) fiscal month period to (b) Consolidated
EBITDAR for the most recently completed twelve (12) fiscal month period.


 


“Adjusted
LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest Period or for any ABR Borrowing, an interest
rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest Period
multiplied by (b) the Statutory Reserve Rate.


 


“Administrative
Agent” means JPMorgan Chase Bank, N.A. (and its subsidiaries and Affiliates), in its capacity as administrative agent
for the Lenders hereunder.


 


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


 


“Affiliate”
means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the specified Person.


 


“Aggregate
Credit Exposure” means, at any time, the aggregate Credit Exposure of all the Lenders at such time.


 


“Aggregate
Revolving Exposure” means, at any time, the aggregate Revolving Exposure of all the Lenders at such time.


 


“Alternate
Base Rate” means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b)
the NYFRB Rate in effect on such day plus 1⁄2 of 1%, and (c) the Adjusted LIBO Rate for a one month Interest Period on such
day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1%, provided that, for the purpose of this
definition, the Adjusted LIBO Rate for any day shall be based on the LIBO Screen Rate (or if the LIBO Screen Rate is not available
for such one month Interest Period, the Interpolated Rate) at approximately 11:00 a.m. London time on such day. Any change in the
Alternate Base Rate due to a change in the Prime Rate, the NYFRB Rate or the Adjusted LIBO Rate shall be effective from and including
the effective date of such change in the Prime Rate, the NYFRB Rate or the Adjusted LIBO Rate, respectively. If the Alternate Base
Rate is being used as an alternate rate of interest pursuant to Section 2.12 (for the avoidance of doubt, only until any amendment
has become effective pursuant to Section 2.12(c)), then the Alternate Base Rate shall be the greater of clause (a) and (b) above
and shall be determined without reference to clause (c) above. For the avoidance of doubt, if the Alternate Base Rate as determined
pursuant to the foregoing would be less than 2.00%, such rate shall be deemed to be 2.00% for purposes of this Agreement.


 



    CREDIT AGREEMENT – Page 1


     


    

 


“Amendment
Period” means the period from and including the Second Amendment Effective Date through April 3, 2021.


 


“Anti-Corruption
Laws” means all laws, rules, and regulations of any jurisdiction applicable to the Borrower or any of its Subsidiaries
from time to time concerning or relating to bribery or corruption.


 


“Anti-Terrorism
Order” means that certain Executive Order 13224 signed into law on September 23, 2001.


 


“Applicable
Percentage” means, at any time with respect to any Lender, a percentage equal to a fraction the numerator of which is
such Lender’s Revolving Commitment at such time and the denominator of which is the aggregate Revolving Commitments of all
Lenders at such time (provided that, if the Revolving Commitments have terminated or expired, the Applicable Percentages
shall be determined based upon such Lender’s share of the Aggregate Revolving Exposure at such time); provided that,
in accordance with Section 2.18, so long as any Lender shall be a Defaulting Lender, such Defaulting Lender’s Commitment
shall be disregarded in the calculations above.


 


“Applicable
Rate” means, (a) with respect to Eurodollar Loans, 5.00% per annum, (b) with respect to ABR Loans, 4.00% per
annum, or (c) with respect to the commitment fees payable hereunder, 0.50% per annum.


 


“Approved
Bank” has the meaning assigned to the term in the definition of “Cash Equivalents.”


 


“Approved
Fund” has the meaning assigned to the term in Section 9.04(b).


 


“ASC Section
840-40” means Accounting Standards Codification Section 840-40 (Leases-Sale-Leaseback Transactions) issued by the Financial
Accounting Standards Board, as now or hereafter in effect or any successor pronouncements.


 


“Assignment
and Assumption” means an assignment and assumption agreement entered into by a Lender and an assignee (with the consent
of any party whose consent is required by Section 9.04), and accepted by the Administrative Agent, in the form of Exhibit A
or any other form (including electronic records generated by use of an electronic platform) approved by the Administrative Agent.


 


“Authorized
Officers” means the Responsible Officers set forth on Schedule 3.27.


 


“Availability”
means, at any time, an amount equal to the aggregate Revolving Commitments of all Lenders minus the Aggregate Revolving
Exposure (calculated, with respect to any Defaulting Lender, as if such Defaulting Lender had funded its Applicable Percentage
of all outstanding Borrowings) provided, that notwithstanding anything herein to the contrary, Availability shall be reduced
by any amount that the Borrower would not be permitted to borrow under the terms of Section 4.02 at such time, including,
but not limited to, any amount the borrowing of which could cause the Borrower not to be in pro forma compliance with any one or
more covenants in Section 5.10 (except to the extent not required to be maintained during the Amendment Period, Sections 5.10(a)
and 5.10(b)) after giving pro forma effect to such borrowing.


 



    CREDIT AGREEMENT – Page 2


     


    



 


“Availability
Period” means the period from and including the Effective Date to but excluding the earlier of the Revolving Credit Maturity
Date and the date of termination of the Revolving Commitments.


 


“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.


 


“Banking Services”
means each and any of the following bank services provided to any Loan Party or any Subsidiary by Chase and any other Lender or
any of their respective Affiliates: (a) credit cards for commercial customers (including, without limitation, “commercial
credit cards” and purchasing cards), (b) stored value cards, (c) merchant processing services, and (d) treasury
management services (including, without limitation, controlled disbursement, automated clearinghouse transactions, return items,
overdrafts and interstate depository network services and cash pooling services).


 


“Banking Services
Obligations” means any and all obligations of the Loan Parties or their Subsidiaries, whether absolute or contingent
and howsoever and whensoever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof
and substitutions therefor) in connection with Banking Services.


 


“Bankruptcy
Code” means the Bankruptcy Code in Title 11 of the United States Code, as amended, modified, succeeded or replaced from
time to time.


 


“Bankruptcy
Event” means, with respect to any Person, when such Person becomes the subject of a voluntary or involuntary bankruptcy
or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, custodian, assignee for the benefit of creditors
or similar Person charged with the reorganization or liquidation of its business, appointed for it, or, in the good faith determination
of the Administrative Agent, has taken any action in furtherance of, or indicating its consent to, approval of, or acquiescence
in, any such proceeding or appointment or has had any order for relief in such proceeding entered in respect thereof, provided
that a Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of any ownership interest,
in such Person by a Governmental Authority or instrumentality thereof, unless such ownership interest results in or provides such
Person with immunity from the jurisdiction of courts within the U.S. or from the enforcement of judgments or writs of attachment
on its assets or permits such Person (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm
any contracts or agreements made by such Person.


 


“Benchmark
Replacement” means the sum of: (a) the alternate benchmark rate (which may be a SOFR-Based Rate) that has been selected
by the Administrative Agent and the Borrower giving due consideration to (i) any selection or recommendation of a replacement rate
or the mechanism for determining such a rate by the Relevant Governmental Body and/or (ii) any evolving or then-prevailing market
convention for determining a rate of interest as a replacement to the LIBO Rate for U.S. dollar-denominated syndicated credit facilities
and (b) the Benchmark Replacement Adjustment; provided that, if the Benchmark Replacement as so determined would be less than 1.00%,
the Benchmark Replacement will be deemed to be 1.00% for the purposes of this Agreement; provided further that any such Benchmark
Replacement shall be administratively feasible as determined by the Administrative Agent in its sole discretion.


 



    CREDIT AGREEMENT – Page 3


     


    



 


“Benchmark
Replacement Adjustment” means the spread adjustment, or method for calculating or determining such spread adjustment,
(which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Borrower giving
due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such
spread adjustment, for the replacement of the LIBO Rate with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental
Body and/or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating
or determining such spread adjustment, for the replacement of the LIBO Rate with the applicable Unadjusted Benchmark Replacement
for U.S. dollar-denominated syndicated credit facilities at such time (for the avoidance of doubt, such Benchmark Replacement Adjustment
shall not be in the form of a reduction to the Applicable Rate).


 


“Benchmark
Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational
changes (including changes to the definition of “Alternate Base Rate,” the definition of “Interest Period,”
timing and frequency of determining rates and making payments of interest and other administrative matters) that the Administrative
Agent decides in its reasonable discretion may be appropriate to reflect the adoption and implementation of such Benchmark Replacement
and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice
(or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible
or if the Administrative Agent determines that no market practice for the administration of the Benchmark Replacement exists, in
such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration
of this Agreement).


 


“Benchmark
Replacement Date” means the earlier to occur of the following events with respect to the LIBO Rate:


 


(1) in the case of
clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement
or publication of information referenced therein and (b) the date on which the administrator of the LIBO Screen Rate permanently
or indefinitely ceases to provide the LIBO Screen Rate; or


 


(2) in the case of
clause (3) of the definition of “Benchmark Transition Event,” the date of the public statement or publication of information
referenced therein.


 


“Benchmark
Transition Event” means the occurrence of one or more of the following events with respect to the LIBO Rate:


 


(1) a public statement
or publication of information by or on behalf of the administrator of the LIBO Screen Rate announcing that such administrator has
ceased or will cease to provide the LIBO Screen Rate, permanently or indefinitely, provided that, at the time of such statement
or publication, there is no successor administrator that will continue to provide the LIBO Screen Rate;


 


(2) a public statement
or publication of information by the regulatory supervisor for the administrator of the LIBO Screen Rate, the U.S. Federal Reserve
System, an insolvency official with jurisdiction over the administrator for the LIBO Screen Rate, a resolution authority with jurisdiction
over the administrator for the LIBO Screen Rate or a court or an entity with similar insolvency or resolution authority over the
administrator for the LIBO Screen Rate, in each case which states that the administrator of the LIBO Screen Rate has ceased or
will cease to provide the LIBO Screen Rate permanently or indefinitely, provided that, at the time of such statement or publication,
there is no successor administrator that will continue to provide the LIBO Screen Rate; and/or


 



    CREDIT AGREEMENT – Page 4


     


    



 


(3) a public statement
or publication of information by the regulatory supervisor for the administrator of the LIBO Screen Rate announcing that the LIBO
Screen Rate is no longer representative.


 


“Benchmark
Transition Start Date” means (a) in the case of a Benchmark Transition Event, the earlier of (i) the applicable Benchmark
Replacement Date and (ii) if such Benchmark Transition Event is a public statement or publication of information of a prospective
event, the 90th day prior to the expected date of such event as of such public statement or publication of information (or if the
expected date of such prospective event is fewer than 90 days after such statement or publication, the date of such statement or
publication) and (b) in the case of an Early Opt-in Election, the date specified by the Administrative Agent or the Required Lenders,
as applicable, by notice to the Borrower, the Administrative Agent (in the case of such notice by the Required Lenders) and the
Lenders.


 


“Benchmark
Unavailability Period” means, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred
with respect to the LIBO Rate and solely to the extent that the LIBO Rate has not been replaced with a Benchmark Replacement, the
period (x) beginning at the time that such Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has
replaced the LIBO Rate for all purposes hereunder in accordance with Section 2.12 and (y) ending at the time that a Benchmark Replacement
has replaced the LIBO Rate for all purposes hereunder pursuant to Section 2.12.


 


“Beneficial
Ownership Certification” means a certification regarding beneficial ownership or control as required by the Beneficial
Ownership Regulation.


 


“Beneficial
Ownership Regulation” means 31 C.F.R. § 1010.230.


 


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


 


“Board”
means the Board of Governors of the Federal Reserve System of the U.S.


 


“Borrower”
means Fiesta Restaurant Group, Inc., a Delaware corporation.


 


“Borrowing”
means Revolving Loans of the same Type, made, converted or continued on the same date and, in the case of Eurodollar Loans, as
to which a single Interest Period is in effect.


 


“Borrowing
Request” means a request by the Borrower for a Borrowing in accordance with Section 2.03.


 


“Business”
has the meaning assigned to the term in Section 3.10(b).


 


“Business
Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in Boston, Massachusetts, San
Francisco, California or New York, New York are authorized or required by law to remain closed; provided that, when used
in connection with a Eurodollar Loan, the term “Business Day” shall also exclude any day on which banks are not open
for general business in London.


 


“Capital Expenditures”
means, as of any date of determination for the four (4) consecutive fiscal quarter period ending on such date, all expenditures
of the Loan Parties and their Subsidiaries on a Consolidated basis for such period that in accordance with GAAP would be classified
as capital expenditures, on the Borrower’s Consolidated statements of cash flows.


 



    CREDIT AGREEMENT – Page 5


     


    



 


“Capital Lease”
means any lease of property, real or personal, the obligations with respect to which are required to be capitalized on a balance
sheet of the lessee in accordance with GAAP.


 


“Capital Lease
Obligations” means the capitalized lease obligations relating to a Capital Lease determined in accordance with GAAP.


 


“Cash Equivalents”
means (a) securities issued or directly and fully guaranteed or insured by the United States of America or any agency or instrumentality
thereof (provided that the full faith and credit of the United States of America is pledged in support thereof) having maturities
of not more than twelve months from the date of acquisition (“Government Obligations”), (b) dollar denominated
time deposits, certificates of deposit, Eurodollar time deposits and Eurodollar certificates of deposit of (i) any domestic commercial
bank of recognized standing having capital and surplus in excess of $500,000,000 or (ii) any bank whose short-term commercial paper
rating at the time of the acquisition thereof is at least A-1 or the equivalent thereof from S&P or from Moody’s is at
least P-1 or the equivalent thereof from Moody’s (any such bank being an “Approved Bank”), in each case
with maturities of not more than 364 days from the date of acquisition, (c) commercial paper and variable or fixed rate notes issued
by any Approved Bank (or by the parent company thereof) or any variable rate notes issued by, or guaranteed by any domestic corporation
rated A-1 (or the equivalent thereof) or better by S&P or P-1 (or the equivalent thereof) or better by Moody’s and maturing
within six months of the date of acquisition, (d) repurchase agreements with a term of not more than thirty (30) days with a bank
or trust company (including a Lender) or a recognized securities dealer having capital and surplus in excess of $500,000,000 for
direct obligations issued by or fully guaranteed by the United States of America, (e) obligations of any state of the United States
or any political subdivision thereof for the payment of the principal and redemption price of and interest on which there shall
have been irrevocably deposited Government Obligations maturing as to principal and interest at times and in amounts sufficient
to provide such payment, (f) money market accounts subject to Rule 2a-7 of the Investment Company Act of 1940 (“Rule 2a-7”)
which consist primarily of cash and cash equivalents set forth in clauses (a) through (e) above and of which 95% shall at all times
be comprised of First Tier Securities (as defined in Rule 2a-7) and any remaining amount shall at all times be comprised of Second
Tier Securities (as defined in Rule 2a-7) and (g) shares of any so-called “money market fund”; provided that
such fund is registered under the Investment Company Act of 1940, has net assets of at least $500,000,000 and has an investment
portfolio with an average maturity of 365 days or less.


 


“Change in
Control” means (a) the acquisition of ownership, directly or indirectly, beneficially or of record, by any Person
or group (within the meaning of the Securities Exchange Act of 1934 and the rules of the SEC thereunder as in effect on the date
hereof), of Equity Interests representing more than 40% of the aggregate ordinary voting power represented by the issued and outstanding
Equity Interests of the Borrower; (b) occupation at any time of a majority of the seats (other than vacant seats) on the board
of directors of the Borrower by Persons who were neither (i) directors of the Borrower on the date of this Agreement nor (ii) nominated
or appointed by the board of directors of the Borrower or (c) the acquisition of direct or indirect Control of the Borrower
by any Person or group.


 


“Change in
Law” means the occurrence after the date of this Agreement (or, with respect
to any Lender, such later date on which such Lender becomes a party to this Agreement) of any of the following: (a) the adoption
of or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration,
interpretation, implementation or application thereof by any Governmental Authority or (c) compliance by any Lender or the Issuing
Bank (or, for purposes of Section 2.13(b), by any lending office of such Lender or by such Lender’s or the Issuing Bank’s
holding company, if any) with any request, guideline, requirement or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement; provided that, notwithstanding anything herein to
the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements
or directives thereunder or issued in connection therewith or in the implementation thereof, and (y) all requests, rules, guidelines,
requirements or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or
any successor or similar authority) or the U.S. or foreign regulatory authorities, in each case pursuant to Basel III, shall in
each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted, issued or implemented.


 



    CREDIT AGREEMENT – Page 6


     


    



 


“Charges”
has the meaning assigned to such term in Section 9.17.


 


“Chase”
means JPMorgan Chase Bank, N.A., a national banking association, in its individual capacity, and its successors.


 


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


 


“Collateral”
means any and all property owned, leased or operated by a Person covered by the Collateral Documents and any and all other property
of any Loan Party, now existing or hereafter acquired, that may at any time be, become or intended to be, subject to a security
interest or Lien in favor of the Administrative Agent, on behalf of itself and the Lenders and other Secured Parties, to secure
the Secured Obligations; provided that there shall be excluded from the Collateral (a) any account, instrument, chattel
paper or other obligation or property of any kind due from, owed by, or belonging to, a Sanctioned Person, (b) any lease in
which the lessee is a Sanctioned Person and (c) Excluded Assets (as such term is defined in the Security Agreement). Subject
to the terms and conditions of Section 5.17 and notwithstanding anything herein or in any Loan Document to the contrary, deposit
account control agreements, securities account control agreements and commodity control agreements shall be required with respect
to all of the Loan Parties’ deposit accounts, securities accounts and commodities accounts except Excluded Deposit Accounts
(as such term is defined in the Security Agreement).


 


“Collateral
Access Agreement” has the meaning assigned to such term in the Security Agreement.


 


“Collateral
Documents” means, collectively, the Security Agreement and any other agreements, instruments and documents executed in
connection with this Agreement that are intended to create, perfect or evidence Liens to secure all or any part of the Secured
Obligations, including, without limitation, all other security agreements, pledge agreements, mortgages, deeds of trust, loan agreements,
notes, guarantees, subordination agreements, pledges, powers of attorney, consents, assignments, contracts, fee letters, notices,
leases, financing statements and all other written matter whether theretofore, now or hereafter executed by any Loan Party or any
Subsidiary and delivered to the Administrative Agent.


 


“Commitment”
means, with respect to each Lender, its Revolving Commitment. The initial amount of each Lender’s Commitment is set forth
on the Commitment Schedule, or in the Assignment and Assumption pursuant to which such Lender shall have assumed its Commitment,
as applicable.


 


“Commitment
Schedule” means the Schedule attached hereto identified as such.


 


“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.


 


“Communications”
has the meaning assigned to such term in Section 9.01(d).


 



    CREDIT AGREEMENT – Page 7


     


    



 


“Compliance
Certificate” means a compliance certificate prepared in accordance with Section 5.02(a) in substantially the form of
Exhibit D-1 and Exhibit D-2, as applicable and as required in the context used, or any other form approved
by the Administrative Agent.


 


“Compounded
SOFR” means the compounded average of SOFRs for the applicable Corresponding Tenor, with the rate, or methodology for
this rate, and conventions for this rate (which may include compounding in arrears with a lookback and/or suspension period as
a mechanism to determine the interest amount payable prior to the end of each Interest Period) being established by the Administrative
Agent in accordance with:


 


(1) the rate, or methodology
for this rate, and conventions for this rate selected or recommended by the Relevant Governmental Body for determining compounded
SOFR; provided that:


 


(2) if, and to the
extent that, the Administrative Agent determines that Compounded SOFR cannot be determined in accordance with clause (1) above,
then the rate, or methodology for this rate, and conventions for this rate that the Administrative Agent determines in its reasonable
discretion are substantially consistent with any evolving or then-prevailing market convention for determining compounded SOFR
for U.S. dollar-denominated syndicated credit facilities at such time;


 


provided, further,
that if the Administrative Agent decides that any such rate, methodology or convention determined in accordance with clause (1)
or clause (2) is not administratively feasible for the Administrative Agent, then Compounded SOFR will be deemed unable to be determined
for purposes of the definition of “Benchmark Replacement.”


 


“Connection
Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that
are franchise Taxes or branch profits Taxes.


 


“Consolidated”
means, when used with reference to financial statements or financial statement items of the Borrower and its Subsidiaries or any
other Person, such statements or items on a consolidated basis in accordance with the consolidation principles of GAAP.


 


“Consolidated
EBITDAR” means, in each case for the Loan Parties and their Subsidiaries on a Consolidated basis, as of any date of determination
for the most recently completed twelve (12) fiscal month period ending on such date, without duplication, (a) Consolidated Net
Income for such period plus (b) the sum of the following to the extent deducted in calculating Consolidated Net Income for
such period: (i) Consolidated Interest Expense for such period, (ii) tax expense (including, without limitation, any federal,
state, local and foreign income and similar taxes) of the Loan Parties and their Subsidiaries for such period, (iii) depreciation
and amortization expense of the Loan Parties and their Subsidiaries for such period, (iv) Consolidated Rent Expense for such
period, (v) any one-time restructuring charges or reserves accrued in such period that were incurred or deducted (without
duplication) during the last three quarters of fiscal year 2020 and the first fiscal quarter of fiscal year 2021, provided
that the aggregate amount permitted to be added back pursuant to this clause (v) may not exceed $2,000,000 in the aggregate
for all periods, (vi) Other Designated Expenses for such period, (vii) Designated Cure Proceeds received during such
period, (viii) Pre-Opening Costs for such period, and (ix) other non-cash charges (excluding reserves for future cash
charges) for such period (including, without limitation, non-cash expense related to stock options or other equity compensation
plans or grants) minus (c) non-cash charges previously added back to Consolidated Net Income in determining Consolidated
EBITDAR to the extent such non-cash charges have become cash charges during such period; provided, that notwithstanding
anything herein to the contrary, for the four fiscal quarters ended April 4, 2021, July 4, 2021, October 3, 2021 and January 2,
2022, Consolidated EBITDAR shall be calculated on an annualized basis as follows:


 


(i) for the
fiscal quarter ended April 4, 2021, Consolidated EBITDAR shall be equal to the sum of (A) the product of Consolidated EBITDAR
for the fiscal quarter ended on April 4, 2021, multiplied by four, plus (without duplication) (B) any Designated Net
Proceeds received during the Amendment Period;


 



    CREDIT AGREEMENT – Page 8


     


    





 


(ii) for
the fiscal quarter ended July 4, 2021, Consolidated EBITDAR shall be equal to the sum of (A) the product of Consolidated EBITDAR
for the six fiscal months ended on July 4, 2021 (without including any Designated Net Proceeds added pursuant to clause
(i)(B) immediately preceding), multiplied by two, plus (without duplication) (B) any Designated Net Proceeds received
during the Amendment Period;


 


(iii) for
the fiscal quarter ended October 3, 2021, Consolidated EBITDAR shall be equal to the sum of (A) the product of (x) the
quotient of Consolidated EBITDAR for the nine fiscal months ended on October 3, 2021 (without including any Designated Net Proceeds
added pursuant to clauses (i)(B) and (ii)(B) immediately preceding) divided by nine, (y) multiplied by twelve, plus
(without duplication) (B) any Designated Net Proceeds received during the period commencing on September 28, 2020 and ending
on April 3, 2021, plus (without duplication) (C) any Designated Net Proceeds of the type described in clauses (y) and
(z) of the definition of Designated Net Proceeds only received during the period commencing on the Second Amendment Effective Date
and ending on September 27, 2020, but only to the extent such Designated Net Proceeds were not added back to Consolidated EBITDAR
previously; and


 


(iv) for
the fiscal quarter ended January 2, 2022, Consolidated EBITDAR shall be equal to the sum of (A) Consolidated EBITDAR for the twelve
fiscal months ended on January 2, 2022 (without including any Designated Net Proceeds added pursuant to clauses (i)(B), (ii)(B),
(iii)(B) and (iii)(C) immediately preceding), plus (without duplication) (B) any Designated Net Proceeds received during
the period commencing on January 4, 2021 and ending on April 3, 2021.


 


“Consolidated
Funded Debt” means, as of any date of determination, Funded Debt of the Loan Parties and their Subsidiaries on a Consolidated
basis; provided, that any Capital Lease Obligations incurred by any Loan Party or any Subsidiary in connection with a Sale
Leaseback during the most recently completed twelve (12) fiscal month period shall be annualized as if such Capital Lease Obligations
had been incurred on the first day of such twelve (12) fiscal month period.


 


“Consolidated
Interest Expense” means, as of any date of determination for the most recently completed twelve (12) fiscal month period,
all interest expense (excluding amortization of debt discount and premium, but including the interest component under Capital Leases
and synthetic leases, tax retention operating leases, off-balance sheet loans and similar off-balance sheet financing products)
for such period of the Loan Parties and their Subsidiaries on a Consolidated basis.


 


“Consolidated
Maintenance Capital Expenditures” means, for the most recently completed twelve (12) fiscal month period, the sum of
$30,000 multiplied by each restaurant location.


 


“Consolidated
Net Income” means, as of any date of determination for the most recently completed twelve (12) fiscal month period, the
net income (excluding (i) extraordinary losses and gains, (ii) gains from Dispositions not in the ordinary course of business,
(iii) gains from the early extinguishment of Indebtedness, (iv) all non-cash income (other than amortization of deferred gains
from Sale Leaseback transactions), (v) interest income, (vi) tax credits, rebates and other benefits and (vii) income received
from joint venture investments to the extent not received in cash) of the Loan Parties and their Subsidiaries on a Consolidated
basis for such period, all as determined in accordance with GAAP.


 



    CREDIT AGREEMENT – Page 9


     


    





 


“Consolidated
Rent Expense” means, as of any date of determination for any period, all rent expense for such period of the Loan Parties
and their Subsidiaries on a Consolidated basis with respect to the Restaurants.


 


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


 


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


 


“Corresponding
Tenor” with respect to a Benchmark Replacement means a tenor (including overnight) having approximately the same length
(disregarding business day adjustment) as the applicable tenor for the applicable Interest Period with respect to the LIBO Rate.


 


“Covered Entity”
means any of the following:


 


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


 


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


 


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


 


“Covered Party”
has the meaning assigned to it in Section 9.21.


 


“Credit Exposure”
means, as to any Lender at any time, such Lender’s Revolving Exposure at such time.


 


“Credit Party”
means the Administrative Agent, the Issuing Bank or any other Lender.


 


“Cure”
has the meaning assigned to such term in Section 7.02.


 


“Cure Amount”
has the meaning assigned to such term in Section 7.02.


 


“Cure Period”
has the meaning assigned to such term in Section 7.02.


 


“Default”
means any event or condition which constitutes an Event of Default or which upon notice, lapse of time or both would, unless cured
or waived, become an Event of Default.


 


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


 



    CREDIT AGREEMENT – Page 10


     


    





 


“Defaulting
Lender” means any Lender that (a) has failed, within two Business Days of the date required to be funded or paid, to
(i) fund any portion of its Loans, (ii) fund any portion of its participations in Letters of Credit or (iii) pay over to any Credit
Party any other amount required to be paid by it hereunder, unless, in the case of clause (i) above, such Lender notifies the Administrative
Agent in writing that such failure is the result of such Lender’s good faith determination that a condition precedent to
funding (specifically identified and including the particular default, if any) has not been satisfied, (b) has notified the Borrower
or any Credit Party in writing, or has made a public statement to the effect, that it
does not intend or expect to comply with any of its funding obligations under this Agreement (unless such writing or public statement
indicates that such position is based on such Lender’s good faith determination that a condition precedent (specifically
identified and including the particular default, if any) to funding a Loan under this Agreement cannot be satisfied) or generally
under other agreements in which it commits to extend credit, (c) has failed, within three Business Days after request by a Credit
Party, acting in good faith, to provide a certification in writing from an authorized officer of such Lender that it will comply
with its obligations (and is financially able to meet such obligations) to fund prospective Loans and participations in then outstanding
Letters of Credit under this Agreement, provided that such Lender shall cease to be a Defaulting Lender pursuant to this
clause (c) upon such Credit Party’s receipt of such certification in form and substance satisfactory to it and the Administrative
Agent, or (d) has become the subject of (i) a Bankruptcy Event or (ii) a Bail-In Action.


 


“Designated
Cure Proceeds” means the Cure Amount received by the Borrower with respect to each Cure effected by the Borrower in accordance
with Section 7.02, but only so long as the Net Proceeds received by the Borrower from such Specified Equity Issuance are Unrestricted
Cash.


 


“Designated
Net Proceeds” means Net Proceeds received by the Borrower in cash, in each case only during the Amendment Period, from
(x) a Specified Equity Issuance, (y) the Disposition of the store properties described on Schedule 1.01(d) and/or
(z) without duplication, each Disposition of the store properties described on Schedule 1.01(e) constituting a Sale Leaseback
that is consummated in accordance with the terms of Section 6.12, but in each case only so long as each of the following criteria
is satisfied:


 


(a) no amount added back
to Consolidated EBITDAR pursuant to this definition shall be greater in amount than the amount of Net Proceeds that were used by
the Borrower to promptly upon receipt thereof prepay the Obligations and cash collateralize the LC Exposure in accordance with
the terms of Section 2.09;


 


(b) concurrently with
such Disposition or Specified Equity Issuance, as applicable, the aggregate Commitments of the Lenders shall have been automatically
and permanently reduced by an amount equal to 100% of such Net Proceeds; and


 


(c) all such Net Proceeds
shall be Unrestricted Cash.


 


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


 


“Dividing
Person” has the meaning assigned to it in the definition of “Division.”


 


“Division”
means the division of the assets, liabilities and/or obligations of a Person (the “Dividing Person”) among two or more
Persons (whether pursuant to a “plan of division” or similar arrangement), which may or may not include the Dividing
Person and pursuant to which the Dividing Person may or may not survive.


 


“Division
Successor” means any Person that, upon the consummation of a Division of a Dividing Person, holds all or any portion
of the assets, liabilities and/or obligations previously held by such Dividing Person immediately prior to the consummation of
such Division. A Dividing Person which retains any of its assets, liabilities and/or obligations after a Division shall be deemed
a Division Successor upon the occurrence of such Division.


 



    CREDIT AGREEMENT – Page 11


     


    





 


“Document”
has the meaning assigned to such term in the Security Agreement.


 


“dollars”
or “$” refers to lawful money of the U.S.


 


“Domestic
Subsidiary” means any Subsidiary that is organized and existing under the laws of the United States or any state or commonwealth
thereof or under the laws of the District of Columbia, other than an Excluded Holding Subsidiary.


 


“Early Opt-in
Election” means the occurrence of:


 


(1) (i) a determination
by the Administrative Agent or (ii) a notification by the Required Lenders to the Administrative Agent (with a copy to the Borrower)
that the Required Lenders have determined that U.S. dollar-denominated syndicated credit facilities being executed at such time,
or that include language similar to that contained in Section 2.12 are being executed or amended, as applicable, to incorporate
or adopt a new benchmark interest rate to replace the LIBO Rate, and


 


(2) (i) the election
by the Administrative Agent or (ii) the election by the Required Lenders to declare that an Early Opt-in Election has occurred
and the provision, as applicable, by the Administrative Agent of written notice of such election to the Borrower and the Lenders
or by the Required Lenders of written notice of such election to the Administrative Agent.


 


“ECP”
means an “eligible contract participant” as defined in Section 1(a)(18) of the Commodity Exchange Act or any regulations
promulgated thereunder and the applicable rules issued by the Commodity Futures Trading Commission and/or the SEC.


 


“EEA Financial
Institution” means (a) any institution 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 institution established in an EEA Member Country which is a subsidiary of an institution
described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.


 


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


 


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


 


“Effective
Date” means the date on which the conditions specified in Section 4.01 are satisfied (or waived in accordance with
Section 9.02).


 


“Efficiency
Plan” has the meaning assigned to such term in Section 5.20(d).


 


“Efficiency
Matters” has the meaning assigned to such term in Section 5.21.


 


“Electronic
Signature” means an electronic sound, symbol, or process attached to, or associated with, a contract or other record
and adopted by a Person with the intent to sign, authenticate or accept such contract or record.


 


“Electronic
System” means any electronic system, including e-mail, e-fax, web portal access for the Borrower and any other Internet
or extranet-based site, whether such electronic system is owned, operated or hosted by the Administrative Agent and the Issuing
Bank and any of its respective Related Parties or any other Person, providing for access to data protected by passcodes or other
security system.


 



    CREDIT AGREEMENT – Page 12


     


    





 


“Environmental
Laws” means all laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority, relating in any way to the environment, preservation
or reclamation of natural resources, the management, Release or threatened Release of any Hazardous Material or to health and safety
matters.


 


“Environmental
Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Borrower or any Subsidiary directly or indirectly resulting from or based
upon (a) any violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment
or disposal of any Hazardous Materials, (c) any exposure to any Hazardous Materials, (d) the Release or threatened Release
of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which
liability is assumed or imposed with respect to any of the foregoing.


 


“Equity Interests”
means shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests
in a trust or other equity ownership interests in a Person, and any warrants, options or other rights entitling the holder thereof
to purchase or acquire any of the foregoing.


 


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


 


“ERISA Affiliate”
means any trade or business (whether or not incorporated) that, together with the Borrower, is treated as a single employer under
Section 414(b) or (c) of the Code or, Section 4001(14) of ERISA or, solely for purposes of Section 302 of ERISA and Section
412 of the Code, is treated as a single employer under Section 414 of the Code.


 


“ERISA Event”
means (a) any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder,
with respect to a Plan (other than an event for which the 30-day notice period is waived); (b) the failure to satisfy the
“minimum funding standard” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a
waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by the Borrower or any ERISA Affiliate
of any liability under Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by the Borrower
or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or Plans
or to appoint a trustee to administer any Plan; (f) the incurrence by the Borrower or any ERISA Affiliate of any liability with
respect to the withdrawal or partial withdrawal of the Borrower or any ERISA Affiliate from any Plan or Multiemployer Plan; or
(g) the receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Borrower
or any ERISA Affiliate of any notice, concerning the imposition upon the Borrower or any ERISA Affiliate of Withdrawal Liability
or a determination that a Multiemployer Plan is, or is expected to be, insolvent, in critical status or in reorganization, within
the meaning of Title IV of ERISA.


 


“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.


 


“Eurodollar”,
when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, bear interest
at a rate determined by reference to the Adjusted LIBO Rate.


 


“Event of
Default” has the meaning assigned to such term in Article VII.


 



    CREDIT AGREEMENT – Page 13


     


    





 


“Excess Cash”
means, at any time, the amount by which the aggregate amount of cash and cash equivalents (except for any cash that is held in
an LC Collateral Account or otherwise specifically designated as cash collateral in accordance with the terms of this Agreement
(unless waived in accordance with the terms of this Agreement)), including but not limited to marketable securities, treasury bonds
and bills, certificates of deposit, investments in money market funds, and commercial paper, in each case, held or owned by (either
directly or indirectly), credited to the account of or would otherwise be required to be reflected as an asset on the consolidated
balance sheet of the Loan Parties and their Subsidiaries, exceeds $20,000,000.00 in the aggregate.


 


“Exchange
Act” means the Securities Exchange Act of 1934, as amended.


 


“Excluded
Holding Subsidiary” means a Subsidiary that has no material assets other than the Equity Interests in one or more Foreign
Subsidiaries.


 


“Excluded
Subsidiary” means Cabana Club of Pasadena, Inc.


 


“Excluded
Swap Obligation” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion
of the Guarantee of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or
any Guarantee 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 Guarantor’s failure
for any reason to constitute an ECP at the time the Guarantee of such Guarantor or the grant of such security interest becomes
or would become 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 Guarantee or security interest is or becomes illegal.


 


“Excluded
Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted
from a payment to a Recipient: (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch
profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal
office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political
subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed
on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan, Letter of Credit or Commitment
pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan, Letter of Credit or Commitment
(other than pursuant to an assignment request by the Borrower under Section 2.17(b)) or (ii) such Lender changes its lending office,
except in each case to the extent that, pursuant to Section 2.15, amounts with respect to such Taxes were payable either to such
Lender’s assignor immediately before such Lender acquired the applicable interest in a Loan, Letter of Credit or Commitment
or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to
comply with Section 2.15(f) and (d) any U.S. federal withholding Taxes imposed under FATCA.


 


“Existing
Credit Agreement” means the Credit Agreement dated as of December 11, 2013, among the Borrower, certain Domestic Subsidiaries
of the Borrower, the lenders party thereto, Wells Fargo Bank, National Association as administrative agent and JPMorgan Chase Bank,
N.A., as syndication agent.


 


“Existing
Letter of Credit” means each of the letters of credit described by applicant, date of issuance, letter of credit number,
amount, beneficiary and the date of expiry on Schedule 1.01(c) hereto.


 



    CREDIT AGREEMENT – Page 14


     


    





 


“Extension
of Credit” means, as to any Lender, the making of a Revolving Loan by such Lender, any conversion of a Revolving Loan
from one Type to another Type, any extension of any Revolving Loan or the issuance, extension or renewal of, or participation in,
a Letter of Credit by such Lender.


 


“FATCA”
means Sections 1471 through 1474 of the Code as of the date of this Agreement (or any amended or successor version that is substantively
comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof
and any agreement entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices
adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such
Sections of the Code.


 


“Federal Funds
Effective Rate” means, for any day, the rate calculated by the NYFRB based on such day’s federal funds transactions
by depositary institutions (as determined in such manner as shall be set forth on the Federal Reserve Bank of New York’s
Website from time to time) and published on the next succeeding Business Day by the NYFRB as the federal funds effective rate;
provided that, if the Federal Funds Effective Rate shall be less than zero, such rate shall be deemed to zero for the purposes
of this Agreement.


 


“Federal Reserve
Bank of New York’s Website” means the website of the NYFRB at http://www.newyorkfed.org, or any successor source.


 


“Financial
Advisor” has the meaning assigned to such term in Section 5.20.


 


“Financial
Officer” means the chief financial officer, principal accounting officer, treasurer or controller of the Borrower.


 


“fiscal month”
means a fiscal month period of the Borrower. For the avoidance of doubt, the last day of each such period during the term of this
Agreement is July 26, 2020, August 30, 2020, September 27, 2020, November 1, 2020, November 29, 2020, January 3, 2021, February
7, 2021, March 7, 2021, April 4, 2021, May 2, 2021, June 6, 2021, July 4, 2021, August 1, 2021, September 5, 2021, October 3, 2021,
November 7, 2021, December 5, 2021, January 2, 2022, February 6, 2022, March 6, 2022, April 3, 2022, May 1, 2022, June 5, 2022,
July 3, 2022, July 31, 2022, September 4, 2022, October 2, 2022, November 6, 2022 and December 4, 2022.


 


“Fixed Charge
Coverage Ratio” means, as of any date of determination, for the Loan Parties and their Subsidiaries on a Consolidated
basis, the ratio of (a) Consolidated EBITDAR for the most recently completed twelve (12) fiscal month period ending on such date
minus all Income Taxes paid in cash during the most recently completed twelve (12) fiscal month period ending on such date
minus Consolidated Maintenance Capital Expenditures for the most recently completed twelve (12) fiscal month period ending
on such date to (b) the sum of (i) Consolidated Interest Expense paid or payable in cash during the most recently completed
twelve (12) fiscal month period ending on such date, (ii) Scheduled Funded Debt Payments made during the most recently completed
twelve (12) fiscal month period ending on such date (including the principal component of payments due on Capital Leases) and (iii) Consolidated
Rent Expense during the most recently completed twelve (12) fiscal month period ending on such date; provided, that Consolidated
Rent Expense shall be calculated as if all lease obligations incurred by a Loan Party or Subsidiary in connection with a Sale Leaseback
during the most recently completed twelve (12) fiscal month period had been incurred on the first day of such twelve (12) fiscal
month period.


 


“Foreign Lender”
means (a) if the Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b) if the Borrower is not a U.S. Person, a
Lender that is resident or organized under the laws of a jurisdiction other than that in which the Borrower is resident for tax
purposes.


 



    CREDIT AGREEMENT – Page 15


     


    





 


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


 


“Funded Debt”
means, with respect to any Person, without duplication, all Indebtedness of such Person (other than Indebtedness set forth in clauses
(m), (n), and (p) of such definition); provided, that Funded Debt shall only include Indebtedness set forth in clauses (i)
and (j) of the definition thereof to the extent of unreimbursed drawings under such letters of credit or bankers’ acceptances
facilities.


 


“Funding Account”
has the meaning assigned to such term in Section 4.01(h).


 


“GAAP”
means generally accepted accounting principles in effect in the United States of America (or, in the case of Foreign Subsidiaries
with significant operations outside the United States of America, generally accepted accounting principles in effect from time
to time in their respective jurisdictions of organization or formation) applied on a consistent basis, subject, however,
in the case of determination of compliance with the financial covenants set out in Section 5.10, and in the case of determining
the Applicable Rate, to the provisions of Section 1.04.


 


“Government
Obligations” has the meaning assigned to the term in the definition of “Cash Equivalents.”


 


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


 


“Guarantee”
of or by any Person (the “guarantor”) means any obligation, contingent or otherwise, of the guarantor guaranteeing
or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “primary obligor”)
in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase
or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to
advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities
or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to
maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any letter of
credit or letter of guaranty issued to support such Indebtedness or obligation; provided that the term Guarantee shall not
include endorsements for collection or deposit in the ordinary course of business.


 


“Guaranteed
Obligations” has the meaning assigned to such term in Section 10.01.


 


“Guarantors”
means all Loan Guarantors and all non-Loan Parties who have delivered an Obligation Guaranty, and the term “Guarantor”
means each or any one of them individually. On the Second Amendment Effective Date, the “Guarantors” are the Borrower,
Cabana Beverages, Inc., a Texas corporation, Cabana Bevco LLC, a Texas limited liability company, Cabana Grill, Inc., a Delaware
corporation, Pollo Tropical Management, LLC, a Texas limited liability company, Pollo Tropical Beverages, LLC, a Texas limited
liability company, Pollo Franchise, Inc., a Florida corporation, Pollo Operations, Inc., a Florida corporation, Taco Cabana, Inc.,
a Delaware corporation, TP Acquisition Corp., a Texas corporation, TC Bevco LLC, a Texas limited liability company, T.C. Management,
Inc., a Delaware corporation, TPAQ Holding Corporation, a Delaware corporation and Texas Taco Cabana, L.P., a Texas limited partnership.


 



    CREDIT AGREEMENT – Page 16


     


    





 


“Hazardous
Materials” means: (a) any substance, material, or waste that is included within the definitions of “hazardous substances,”
“hazardous materials,” “hazardous waste,” “toxic substances,” “toxic materials,”
“toxic waste,” or words of similar import in any Environmental Law; (b) those substances listed as hazardous substances
by the United States Department of Transportation (or any successor agency) (49 C.F.R. 172.101 and amendments thereto) or by the
Environmental Protection Agency (or any successor agency) (40 C.F.R. Part 302 and amendments thereto); and (c) any substance, material,
or waste that is petroleum, petroleum-related, or a petroleum by-product, asbestos or asbestos-containing material, polychlorinated
biphenyls, flammable, explosive, radioactive, freon gas, radon, or a pesticide, herbicide, or any other agricultural chemical.


 


“IBA”
has the meaning assigned to such term in Section 1.07.


 


“Impacted
Interest Period” has the meaning assigned to such term in the definition of “LIBO Rate”.


 


“Incentive
Plan” means (a) the Borrower’s 2012 Stock Incentive Plan, as amended through the Second Amendment Effective
Date, (b) any amendments or modifications thereto and (c) any successor plans thereto, in each case of clauses (b) and (c),
which are not materially adverse to the interests of the Administrative Agent and the Lenders from the perspective of a secured
lender (it being agreed that the addition of new participants in such plans from time to time is not adverse to the Administrative
Agent and the Lenders).


 


“Income Taxes”
means federal, state, local and foreign income and similar taxes (including franchise taxes, to the extent such franchise taxes
are based on the income or revenues of the Loan Parties and their Subsidiaries).


 


“Indebtedness”
of any Person means, without duplication, (a) all obligations of such Person for borrowed money or with respect to deposits
or advances of any kind, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments,
(c) all obligations of such Person upon which interest charges are customarily paid, (d) all obligations of such Person
under conditional sale or other title retention agreements relating to property acquired by such Person (other than customary reservations
or retentions of title under agreements with suppliers entered into in the ordinary course of business), (e) all obligations
of such Person in respect of the deferred purchase price of property or services (excluding trade debt, accrued expenses and current
accounts payable incurred in the ordinary course of business and due within six months of the incurrence thereof), (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise,
to be secured by) any Lien on, or payable out of the proceeds of production from, property owned or acquired by such Person, whether
or not the Indebtedness secured thereby has been assumed, (g) all Guarantees by such Person of Indebtedness of others, (h) all
Capital Lease Obligations of such Person plus any accrued interest thereon, (i) all obligations, contingent or otherwise,
of such Person as an account party in respect of letters of credit and letters of guaranty, (j) all obligations, contingent or
otherwise, of such Person in respect of bankers’ acceptances, (k) obligations under any earn-out (which for all purposes
of this Agreement shall be valued at the maximum potential payable with respect to each such earn-out), (l) any other Off-Balance
Sheet Liability, (m) obligations, whether absolute or contingent and howsoever and whensoever created, arising, evidenced
or acquired (including all renewals, extensions and modifications thereof and substitutions therefor), under (i) any and all Swap
Agreements, and (ii) any and all cancellations, buy backs, reversals, terminations or assignments of any Swap Agreement transaction,
(n) all obligations of such Person under take or pay or similar arrangements or under commodities agreements, (o) all
preferred Equity Interests issued by such Person and which by the terms thereof could be (at the request of the holders thereof
or otherwise) subject to mandatory sinking fund payments, redemption or acceleration on or prior to the Revolving Credit Maturity
Date, (p) obligations of such Person under non-compete agreements to the extent such obligations are quantifiable contingent
obligations of such Person under GAAP principles, (q) all ASC Section 840-40 lease financing obligations. The Indebtedness
of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner
or a joint venturer) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other
relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor.


 



    CREDIT AGREEMENT – Page 17


     


    





 


“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.


 


“Indemnitee”
has the meaning assigned to such term in Section 9.03(b).


 


“Ineligible
Institution” has the meaning assigned to such term in Section 9.04(b).


 


“Information”
has the meaning assigned to such term in Section 9.12.


 


“Intellectual
Property” has the meaning assigned to such term in the Security Agreement.


 


“Intercompany
Debt” has the meaning assigned to the term in Section 5.16.


 


“Interest
Election Request” means a request by the Borrower to convert or continue a Borrowing in accordance with Section 2.06.


 


“Interest
Payment Date” means (a) with respect to any ABR Loan, the last Business Day of each fiscal quarter of the Borrower
and the Revolving Credit Maturity Date, and (b) with respect to any Eurodollar Loan, the last day of the Interest Period applicable
to the Borrowing of which such Loan is a part and, in the case of a Eurodollar Borrowing with an Interest Period of more than three
months’ duration, each day prior to the last day of such Interest Period that occurs at intervals of three months’
duration after the first day of such Interest Period and the Revolving Credit Maturity Date.


 


“Interest
Period” means with respect to any Eurodollar Borrowing, the period commencing on the date of such Eurodollar Borrowing
and ending on the numerically corresponding day in the calendar month that, subject to availability to all Lenders, is one, two,
three, six or twelve months thereafter as the Borrower may elect; provided that (i) if any Interest Period would end on
a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding
Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business
Day and (ii) any Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last
calendar month of such Interest Period. For purposes hereof, the date of a Borrowing initially shall be the date on which such
Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.


 


“Interpolated
Rate” means, at any time, for any Interest Period, the rate per annum (rounded to the same number of decimal places as
the LIBO Screen Rate) determined by the Administrative Agent (which determination shall be conclusive and binding absent manifest
error) to be equal to the rate that results from interpolating on a linear basis between: (a) the LIBO Screen Rate for the longest
period (for which the LIBO Screen Rate is available) that is shorter than the Impacted Interest Period and (b) the LIBO Screen
Rate for the shortest period (for which the LIBO Screen Rate is available) that exceeds the Impacted Interest Period, in each case,
at such time; provided, that, if any Interpolated Rate shall be less than 1.00%, such rate shall be deemed to be 1.00% for purposes
of this Agreement.


 



    CREDIT AGREEMENT – Page 18


     


    





 


“Investment”
means (a) the acquisition (whether for cash, property, services, assumption of Indebtedness, securities or otherwise) of Equity
Interests, other ownership interests or other securities of any Person or bonds, notes, debentures or all or substantially all
of the assets of any Person, (b) any deposit with, or advance, loan or other extension of credit to, any Person (other than
deposits made in the ordinary course of business), (c) the construction or development of, or the entering into of a binding
commitment to construct or develop, a new Restaurant, or (d) any other capital contribution to or investment in any Person,
including, without limitation, any Guarantees (including any support for a letter of credit issued on behalf of such Person) incurred
for the benefit of such Person.


 


“IRS”
means the United States Internal Revenue Service.


 


“Issuing Bank”
means, individually and collectively, each of (a) Chase, in its capacity as the issuer of Letters of Credit hereunder, and
any other Revolving Lender from time to time designated by the Borrower as an Issuing Bank, with the consent of such Revolving
Lender and the Administrative Agent, (b) with respect to the Existing Letters of Credit only, Wells Fargo Bank, National Association
and (c) their respective successors in such capacity as provided in Section 2.04(i). Any Issuing Bank may, in its discretion,
arrange for one or more Letters of Credit to be issued by its Affiliates, in which case the term “Issuing Bank” shall
include any such Affiliate with respect to Letters of Credit issued by such Affiliate (it being agreed that such Issuing Bank shall,
or shall cause such Affiliate to, comply with the requirements of Section 2.04 with respect to such Letters of Credit). At any
time there is more than one Issuing Bank, all singular references to the Issuing Bank shall mean any Issuing Bank, either Issuing
Bank, each Issuing Bank, the Issuing Bank that has issued the applicable Letter of Credit, or both (or all) Issuing Banks, as the
context may require.


 


“Issuing Bank
Sublimits” means, as of the Effective Date, (i) $15,000,000, in the case of Chase, (ii) the greater of $4,841,731
or the outstanding amount of the Existing Letters of Credit on the Effective Date, in the case of Wells Fargo Bank, National Association
and (iii) such amount as shall be designated to the Administrative Agent and the Borrower in writing by an Issuing Bank; provided
that any Issuing Bank shall be permitted at any time to increase or reduce its Issuing Bank Sublimit upon providing five (5) days’
prior written notice thereof to the Administrative Agent and the Borrower.


 


“Joinder Agreement”
means a Joinder Agreement in substantially the form of Exhibit E or any other form approved by the Administrative Agent.


 


“LC Collateral
Account” has the meaning assigned to such term in Section 2.04(j).


 


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


 


“LC Exposure”
means, at any time, the sum of (a) the aggregate undrawn amount of all standby Letters of Credit outstanding at such time plus
(b) the aggregate amount of all LC Disbursements relating to standby Letters of Credit that have not yet been reimbursed by or
on behalf of the Borrower at such time. The LC Exposure of any Revolving Lender at any time shall be its Applicable Percentage
of the aggregate LC Exposure at such time.


 


“Lenders”
means the Persons listed on the Commitment Schedule and any other Person that shall have become a Lender hereunder pursuant
to an Assignment and Assumption, other than any such Person that ceases to be a Lender hereunder pursuant to an Assignment and
Assumption. Unless the context otherwise requires, the term “Lenders” includes the Issuing Bank.


 


“Letter of
Credit Agreement” has the meaning assigned to it in Section 2.04(b).


 



    CREDIT AGREEMENT – Page 19


     


    





 


“Letters of
Credit” means the standby letters of credit issued pursuant to this Agreement, and each Existing Letter of Credit, and
the term “Letter of Credit” means any one of them or each of them singularly, as the context may require.


 


“LIBO Rate”
means, with respect to any Eurodollar Borrowing for any applicable Interest Period or for any ABR Borrowing, the LIBO Screen Rate
at approximately 11:00 a.m., London time, two (2) Business Days prior to the commencement of such Interest Period; provided
that, if the LIBO Screen Rate shall not be available at such time for such Interest Period (an “Impacted Interest Period”),
then the LIBO Rate shall be the Interpolated Rate, subject to Section 2.12 in the event that the Administrative Agent shall conclude
that it shall not be possible to determine such Interpolated Rate (which conclusion shall be conclusive and binding absent manifest
error). Notwithstanding the above, to the extent that “LIBO Rate” or “Adjusted LIBO Rate” is used in connection
with an ABR Borrowing, such rate shall be determined as modified by the definition of Alternate Base Rate.


 


“LIBO Screen
Rate” means, for any day and time, with respect to any Eurodollar Borrowing for any Interest Period or for any ABR Borrowing,
the London interbank offered rate as administered by ICE Benchmark Administration (or any other Person that takes over the administration
of such rate for dollars) for a period equal in length to such Interest Period as displayed on such day and time on pages LIBOR01
or LIBOR02 of the Reuters screen that displays such rate (or, in the event such rate does not appear on a Reuters page or screen,
on any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other information
service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion); provided
that, if the LIBO Screen Rate shall be less than 1.00%, such rate shall be deemed to 1.00% for the purposes of this Agreement.


 


“Lien”
means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security
interest in, on or of such asset, (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease
or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating
to such asset and (c) in the case of Equity Interests or securities, any purchase option, call or similar right of any Person
with respect to such Equity Interests or securities.


 


“Liquidity”
means, at any time of determination, the sum of (a) all Unrestricted Cash and Cash Equivalents of the Loan Parties at such
time plus (b) Availability at such time.


 


“Loan Documents”
means, collectively, this Agreement, each Revolving Loan Note, any Letter of Credit application, each Collateral Document, the
Loan Guaranty, any Obligation Guaranty, each Compliance Certificate, each confirmation agreement and each other agreement, instrument,
document and certificate identified in Section 4.01 executed and delivered to, or in favor of, the Administrative Agent or any
Lender and including each other pledge, power of attorney, consent, assignment, contract, notice, letter of credit agreement, subordination
agreement, intercreditor agreement, letter of credit applications and any agreements between the Borrower and the Issuing Bank
regarding the Issuing Bank’s Issuing Bank Sublimit or the respective rights and obligations between the Borrower and the
Issuing Bank in connection with the issuance of Letters of Credit, and each other written matter whether heretofore, now or hereafter
executed by or on behalf of any Loan Party, or any employee of any Loan Party, and delivered to the Administrative Agent or any
Lender in connection with this Agreement or the transactions contemplated hereby (other than any agreement, document, certificate
of instrument related to Banking Services or any Swap Agreement). Any reference in this Agreement or any other Loan Document to
a Loan Document shall include all appendices, exhibits or schedules thereto, and all amendments, restatements, supplements or other
modifications thereto, and shall refer to this Agreement or such Loan Document as the same may be in effect at any and all times
such reference becomes operative.


 



    CREDIT AGREEMENT – Page 20


     


    





 


“Loan Guarantor”
means each Loan Party.


 


“Loan Guaranty”
means Article X of this Agreement.


 


“Loan Parties”
means, collectively, the Borrower, the Borrower’s Domestic Subsidiaries (other than the Excluded Subsidiary and any Domestic
Subsidiary owned by a Foreign Subsidiary) and any other Person who becomes a party to this Agreement pursuant to a Joinder Agreement
and their respective successors and assigns, and the term “Loan Party” shall mean any one of them or all of them individually,
as the context may require. On the Second Amendment Effective Date, the “Loan Parties” are the Borrower, Cabana Beverages,
Inc., a Texas corporation, Cabana Bevco LLC, a Texas limited liability company, Cabana Grill, Inc., a Delaware corporation, Pollo
Tropical Management, LLC, a Texas limited liability company, Pollo Tropical Beverages, LLC, a Texas limited liability company,
Pollo Franchise, Inc., a Florida corporation, Pollo Operations, Inc., a Florida corporation, Taco Cabana, Inc., a Delaware corporation,
TP Acquisition Corp., a Texas corporation, TC Bevco LLC, a Texas limited liability company, T.C. Management, Inc., a Delaware corporation,
TPAQ Holding Corporation, a Delaware corporation and Texas Taco Cabana, L.P., a Texas limited partnership.


 


“Loans”
means the loans and advances made by the Lenders pursuant to this Agreement.


 


“Material
Adverse Effect” means a material adverse effect on (a) the business, operations, property, assets or condition (financial
or otherwise) of the Loan Parties and their Subsidiaries taken as a whole, (b) the ability of the Borrower or any Guarantor to
perform its obligations, when such obligations are required to be performed, under this Agreement, any of the Revolving Loan Notes
or any other Loan Document or (c) the validity or enforceability of this Agreement, any of the Revolving Loan Notes or any of the
other Loan Documents, the Administrative Agent’s Liens (for the benefit of the Secured Parties) on the Collateral or the
priority of such Liens or the rights or remedies of the Administrative Agent or the Lenders hereunder or thereunder.


 


“Material
Contract” means any contract or agreement of the Loan Parties or any of their Subsidiaries as to which the breach, nonperformance,
cancellation or failure to renew by any party thereto, could reasonably be expected to have a Material Adverse Effect. The parties
acknowledge that no individual Restaurant real property lease is a Material Contract for purposes of this Agreement.


 


“Materials
of Environmental Concern” means any gasoline or petroleum (including crude oil or any extraction thereof) or petroleum
products or any hazardous or toxic substances, materials or wastes, defined or regulated as such in or under any Environmental
Law, including, without limitation, asbestos, perchlorate, polychlorinated biphenyls and urea-formaldehyde insulation.


 


“Maximum Rate”
has the meaning assigned to such term in Section 9.17.


 


“Milestone”
has the meaning assigned to such term in Section 5.20.


 


“Moody’s”
means Moody’s Investors Service, Inc.


 


“Multiemployer
Plan” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.


 



    CREDIT AGREEMENT – Page 21


     


    





 


“Net Proceeds”
means, with respect to any event, (a) the cash proceeds received in respect of such event including (i) any cash received
in respect of any non-cash proceeds (including any cash payments received by way of deferred payment of principal pursuant to a
note or installment receivable or purchase price adjustment receivable or otherwise, but excluding any interest payments), but
only as and when received, (ii) in the case of a casualty, insurance proceeds and (iii) in the case of a condemnation
or similar event, condemnation awards and similar payments, minus (b) the sum of (i) all reasonable fees and out-of-pocket
costs and expenses paid or incurred (but if incurred and not paid, then only to the extent paid in the following fiscal quarter)
to third parties (other than Affiliates) in connection with such event (including, without limitation, legal, accounting and investment
banking fees, advisory fees, sales commissions, survey costs, title insurance premiums, related search and recording charges, transfer
taxes, deed or mortgage recording taxes, other customary expenses and brokerage, consultant and other customary fees and expenses
incurred in good faith), (ii) in the case of a sale, transfer or other Disposition of an asset (including pursuant to a sale
and leaseback transaction or a casualty or a condemnation or similar proceeding), the amount of all payments required to be made
as a result of such event to permanently repay Indebtedness permitted to exist hereunder (other than Loans) secured by such asset
or otherwise subject to mandatory prepayment as a result of such event (together with any applicable premium, penalty, interest
and breakage costs) and (iii) the amount of all taxes paid (or reasonably estimated to be payable) and the amount of any reserves
established to fund contingent liabilities reasonably estimated to be payable, in each case during the year that such event occurred
or the next succeeding year and that are directly attributable to such event (as determined reasonably and in good faith by a Financial
Officer).


 


“Non-Consenting
Lender” has the meaning assigned to such term in Section 9.02(d).


 


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


 


“NYFRB”
means the Federal Reserve Bank of New York.


 


“NYFRB Rate”
means, for any day, the greater of (a) the Federal Funds Effective Rate in effect on such day and (b) the Overnight Bank Funding
Rate in effect on such day(or for any day that is not a Business Day, for the immediately preceding Business Day); provided
that if none of such rates are published for any day that is a Business Day, the term “NYFRB Rate” means the rate for
a federal funds transaction quoted at 11:00 a.m. on such day received to the Administrative Agent from a Federal funds broker of
recognized standing selected by it; provided, further, that if any of the aforesaid rates shall be less than zero,
such rate shall be deemed to be zero for purposes of this Agreement.


 


“Obligated
Party” has the meaning assigned to such term in Section 10.02.


 


“Obligation
Guaranty” means any Guarantee of all or any portion of the Secured Obligations executed and delivered to the Administrative
Agent for the benefit of the Secured Parties by a guarantor who is not a Loan Party.


 


“Obligations”
means all unpaid principal of and accrued and unpaid interest on the Loans, all LC Exposure, all accrued and unpaid fees and all
expenses, reimbursements, indemnities and other obligations and indebtedness (including interest and fees accruing during the pendency
of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding),
obligations and liabilities of any of the Loan Parties to any of the Lenders, the Administrative Agent, the Issuing Bank or any
indemnified party, individually or collectively, existing on the Effective Date or arising thereafter, direct or indirect, joint
or several, absolute or contingent, matured or unmatured, liquidated or unliquidated, secured or unsecured, arising by contract,
operation of law or otherwise, arising or incurred under this Agreement or any of the other Loan Documents or in respect of any
of the Loans made or reimbursement or other obligations incurred or any of the Letters of Credit or other instruments at any time
evidencing any thereof.


 


“OFAC”
means the Office of Foreign Assets Control of the United States Department of the Treasury.


 



    CREDIT AGREEMENT – Page 22


     


    





 


“Off-Balance
Sheet Liability” of a Person means (a) any repurchase obligation or liability of such Person with respect to accounts
or notes receivable sold by such Person, (b) any indebtedness, liability or obligation under any so-called “synthetic lease”
transaction entered into by such Person, or (c) any indebtedness, liability or obligation arising with respect to any other transaction
which is the functional equivalent of or takes the place of borrowing but which does not constitute a liability on the balance
sheet of such Person (other than operating leases).


 


“Operating
Lease” means, as applied to any Person, any lease (including, without limitation, leases which may be terminated by the
lessee at any time) of any property (whether real, personal or mixed) which is not a Capital Lease or a lease in connection with
an ASC 840-40 lease financing obligation other than any such lease in which that Person is the lessor.


 


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


 


“Other Designated
Expenses” means, for any period, (a) without duplication of amounts included in clause (b)(ix) of the definition of “Consolidated
EBITDAR”, consolidated impairment charges recorded in connection with the application of Financial Accounting Standard No.
142 “Goodwill and Other Intangibles” and Financial Accounting Standard No. 144 “Accounting for the Impairment
or Disposal of Long Lived Assets,” or any successor pronouncements and (b) any non-recurring cash legal fees and legal expenses
paid by the Borrower for legal work on the Second Amendment and related Loan Documents (and the negotiation thereof) prior to and
through the Second Amendment Effective Date.


 


“Other Taxes”
means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment
made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security
interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed
with respect to an assignment (other than an assignment made pursuant to Section 2.17).


 


“Overnight
Bank Funding Rate” means, for any day, the rate comprised of both overnight federal funds and overnight Eurodollar borrowings
by U.S.-managed banking offices of depository institutions (as such composite rate shall be determined by the NYFRB as set forth
on the Federal Reserve Bank of New York’s Website from time to time) and published on the next succeeding Business Day by
the NYFRB as an overnight bank funding rate (from and after such date as the NYFRB shall commence to publish such composite rate).


 


“Paid in Full”
or “Payment in Full” means, (i) the indefeasible payment in full in cash of all outstanding Loans and LC Disbursements,
together with accrued and unpaid interest thereon, (ii) the termination, expiration, or cancellation and return of all outstanding
Letters of Credit (or alternatively, with respect to each such Letter of Credit, the furnishing to the Administrative Agent of
a cash deposit, or at the discretion of the Administrative Agent a backup standby letter of credit satisfactory to the Administrative
Agent and the Issuing Bank, in an amount equal to 105% of the LC Exposure as of the date of such payment), (iii) the indefeasible
payment in full in cash of the accrued and unpaid fees, (iv) the indefeasible payment in full in cash of all reimbursable expenses
and other Secured Obligations (other than Unliquidated Obligations for which no claim has been made and other obligations expressly
stated to survive such payment and termination of this Agreement), together with accrued and unpaid interest thereon, (v) the termination
of all Commitments, and (vi) the termination of the Swap Agreement Obligations and the Banking Services Obligations or entering
into other arrangements satisfactory to the Secured Parties counterparties thereto.


 



    CREDIT AGREEMENT – Page 23


     


    





 


“Parent”
means, with respect to any Lender, any Person as to which such Lender is, directly or indirectly, a subsidiary.


 


“Participant”
has the meaning assigned to such term in Section 9.04(c).


 


“Participant
Register” has the meaning assigned to such term in Section 9.04(c).


 


“Patriot Act”
means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT
ACT) Act of 2001 (Title III of Pub. L. No. 107-56 (signed into law October 26, 2001)), as amended or modified from time to time.


 


“PBGC”
means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.


 


“Permitted
Construction Transaction” has the meaning assigned to the term in Section 6.05(h).


 


“Permitted
Investments” has the meaning assigned to the term in Section 6.05.


 


“Permitted
Liens” has the meaning assigned to the term in Section 6.02.


 


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


 


“Plan”
means any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or
Section 412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or any ERISA Affiliate is (or,
if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5)
of ERISA.


 


“Plan Asset
Regulations” means 29 CFR § 2510.3-101 et seq., as modified by Section 3(42) of ERISA, as amended from time to time.


 


“Platform”
means Debt Domain, Intralinks, Syndtrak or a substantially similar electronic transmission system.


 


“Pre-Opening
Costs” means “start-up costs” (such term used herein as defined in ASC 705.15 published by the American Institute
of Certified Public Accountants) related to the acquisition, opening and organizing of new restaurants, including, without limitation,
the cost of feasibility studies, staff training, recruiting, travel costs for employees engaged in such start-up activities, advertising
and rent accrued prior to opening.


 


“Prepayment
Event” means:


 


(a) any sale, transfer
or other disposition (including pursuant to a sale and leaseback transaction) of any property or asset of any Loan Party or any
Subsidiary, other than dispositions described in Sections 6.04(a)(i) and 6.04(a)(iv);


 


(b) any Recovery Event;


 



    CREDIT AGREEMENT – Page 24


     


    





 


(c) (i) the issuance
by the Borrower of any Equity Interests, except pursuant to the Incentive Plan, but only so long as such issuance of Equity Interests
made in accordance with the terms and conditions of the Incentive Plan does not have cash proceeds in excess of $100,000 in the
aggregate over the term of this Agreement, or (ii) the receipt by the Borrower of any capital contribution; or


 


(d) the incurrence by
any Loan Party or any Subsidiary of (i) any Indebtedness under Section 6.01(g), and (ii) any other Indebtedness
not permitted under any other clause of Section 6.01.


 


“Prime Rate”
means the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street
Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve
Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer
quoted therein, any similar rate quoted therein (as determined by the Administrative Agent) or any similar release by the Federal
Reserve Board (as determined by the Administrative Agent). Each change in the Prime Rate shall be effective from and including
the date such change is publicly announced or quoted as being effective.


 


“Pro Forma
Basis” means, with respect to any transaction, that such transaction shall be deemed to have occurred as of the first
day of the four-quarter period (or twelve month period, as applicable) ending as of the most recent quarter end (or month end,
as applicable) preceding the date of such transaction for which financial statement information is available.


 


“Properties”
has the meaning assigned to the term in Section 3.10(a).


 


“PTE”
means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from
time to time.


 


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


 


“QFC Credit
Support” has the meaning assigned to it in Section 9.21.


 


“Qualified
ECP Guarantor” means, in respect of any Swap Obligation, each Loan Party that has total assets exceeding $10,000,000
at the time the relevant Loan Guaranty or grant of the relevant security interest becomes or would become effective with respect
to such Swap Obligation or such other person as constitutes an “eligible contract participant” under the Commodity
Exchange Act or any regulations promulgated thereunder and can cause another person to qualify as an “eligible contract participant”
at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.


 


“Recipient”
means, as applicable, (a) the Administrative Agent, (b) any Lender and (c) any Issuing Bank, or any combination thereof (as the
context requires).


 


“Recovery
Event” means the receipt by any Loan Party or any Subsidiary of any cash insurance proceeds or condemnation award payable
by reason of theft, loss, physical destruction or damage, taking or similar event with respect to any of its respective property
or assets.


 


“Register”
has the meaning assigned to such term in Section 9.04(b).


 


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


 



    CREDIT AGREEMENT – Page 25


     


    





 


“Release”
means any releasing, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, migrating,
disposing, or dumping of any substance into the environment.


 


“Relevant
Governmental Body” means the Federal Reserve Board and/or the NYFRB, or a committee officially endorsed or convened by
the Federal Reserve Board and/or the NYFRB or, in each case, any successor thereto.


 


“Report”
means reports prepared by the Administrative Agent or another Person showing the results of appraisals, field examinations or audits
pertaining to the Borrower’s assets from information furnished by or on behalf of the Borrower, after the Administrative
Agent has exercised its rights of inspection pursuant to this Agreement, which Reports may be distributed to the Lenders by the
Administrative Agent.


 


“Required
Lenders” means, at any time, Lenders (other than Defaulting Lenders) having Credit Exposure and unused Commitments representing
at least 50% of the sum of the Aggregate Credit Exposure and unused Commitments at such time; provided that, as long as
there are only two Lenders, Required Lenders shall mean both Lenders.


 


“Requirement
of Law” means, with respect to any Person, (a) the charter, articles or certificate of organization or incorporation
and bylaws or operating, management or partnership agreement, or other organizational or governing documents of such Person and
(b) any statute, law (including common law), treaty, rule, regulation, code, ordinance, order, decree, writ, judgment, injunction
or determination of any arbitrator or court or other Governmental Authority (including Environmental Laws), in each case applicable
to or binding upon such Person or any of its property or to which such Person or any of its property is subject.


 


“Responsible
Officer” means, for any Loan Party, the chief executive officer, the president, chief operating officer, chief financial
officer, general counsel, secretary, treasurer or any vice president of such Loan Party and any additional responsible officer
that is designated as such to the Administrative Agent.


 


“Restaurant”
means any restaurant owned or leased by the Borrower or any of its Subsidiaries.


 


“Restricted
Payment” means (a) any dividend or other distribution (whether in cash, securities or other property) with respect
to any Equity Interests in the Borrower or any Subsidiary, (b) any payment (whether in cash, securities or other property),
including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or
termination of any such Equity Interests or any option, warrant or other right to acquire any such Equity Interests, (c) any
payment made to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire shares of any
class of Equity Interests of any Loan Party or any of its Subsidiaries, now or hereafter outstanding and (d) any payment or
prepayment of principal of, premium, if any, or interest on, redemption, purchase, retirement, defeasance, sinking fund or similar
payment with respect to, any Indebtedness of any Loan Party or any of its Subsidiaries (in each case, except the Secured Obligations),
but not including any payment of regularly scheduled interest and Scheduled Funded Debt Payments (including the principal component
of payments due on Capital Leases) that are paid as and when due in respect of any Indebtedness permitted under Section 6.01.


 


“Revolving
Commitment” means, with respect to each Lender, the commitment, if any, of such Lender to make Revolving Loans and to
acquire participations in Letters of Credit hereunder, expressed as an amount representing the maximum aggregate permitted amount
of such Lender’s Revolving Exposure hereunder, as such commitment may be reduced from time to time pursuant to (a) Section
2.07 and (b) assignments by or to such Lender pursuant to Section 9.04. The initial amount of each Lender’s Revolving
Commitment is set forth on the Commitment Schedule, or in the Assignment and Assumption pursuant to which such Lender shall
have assumed its Revolving Commitment, as applicable. On the Second Amendment Effective Date, the aggregate amount of the Lenders’
Revolving Commitments is $120,000,000.


 



    CREDIT AGREEMENT – Page 26


     


    





 


“Revolving
Credit Maturity Date” means November 30, 2022 (if the same is a Business Day, or if not then the immediately next succeeding
Business Day), or any earlier date on which the Revolving Commitments are reduced to zero or otherwise terminated pursuant to the
terms hereof.


 


“Revolving
Exposure” means, with respect to any Lender, at any time, the sum of the aggregate outstanding principal amount of such
Lender’s Revolving Loans and its LC Exposure at such time.


 


“Revolving
Lender” means, as of any date of determination, a Lender with a Revolving Commitment or, if the Revolving Commitments
have terminated or expired, a Lender with Revolving Exposure.


 


“Revolving
Loan” means a Loan made pursuant to Section 2.01.


 


“Revolving
Loan Note” or “Revolving Loan Notes” means the promissory notes of the Borrower provided pursuant
to Section 2.08(f) in favor of any of the Lenders evidencing the Revolving Loan provided by any such Lender pursuant to Section
2.01, individually or collectively, as appropriate, as such promissory notes may be amended, modified, extended, restated, replaced,
or supplemented from time to time.


 


“S&P”
means Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services LLC business.


 


“Sale Leaseback”
has the meaning assigned to the term in Section 6.12.


 


“Sanctioned
Country” means, at any time, a country, region or territory which is itself the subject or target of any Sanctions (at
the time of this Agreement, Crimea, Cuba, Iran, North Korea and Syria).


 


“Sanctioned
Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by OFAC
the U.S. Department of State or by the United Nations Security Council, the European Union, any European Union member state, Her
Majesty’s Treasury of the United Kingdom or other relevant sanctions authority, (b) any Person operating, organized
or resident in a Sanctioned Country, (c) any Person owned or controlled by any such Person or Persons described in the foregoing
clauses (a) or (b), or (d) any Person otherwise the subject of any Sanctions.


 


“Sanctions”
means all economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the
U.S. government, including those administered by OFAC or the U.S. Department of State, or (b) the United Nations Security
Council, the European Union, any European Union member state or Her Majesty’s Treasury of the United Kingdom or other relevant
sanctions authority.


 


“Scheduled
Funded Debt Payments” means, as of any date of determination for the most recently completed twelve (12) fiscal month
period ending on such date, the sum of all regularly scheduled payments of principal on Funded Debt of the Loan Parties and their
Subsidiaries on a Consolidated basis for such period (including the principal component of payments due on Capital Leases during
such period) to the extent actually paid in cash.


 



    CREDIT AGREEMENT – Page 27


     


    





 


“SEC”
means the Securities and Exchange Commission or any successor Governmental Authority.


 


“Second Amendment”
means the Second Amendment to Credit Agreement, dated as of the Second Amendment Effective Date, among the Borrower, the other
Loan Parties, the Lenders party thereto and the Administrative Agent.


 


“Second Amendment
Effective Date” means July 10, 2020.


 


“Secured Obligations”
means all Obligations, together with all (i) Banking Services Obligations and (ii) Swap Agreement Obligations owing to one or more
Lenders or their respective Affiliates; provided, however, that the definition of “Secured Obligations”
shall not create any guarantee by any Guarantor of (or grant of security interest by any Guarantor to support, as applicable) any
Excluded Swap Obligations of such Guarantor for purposes of determining any obligations of any Guarantor.


 


“Secured Parties”
means (a) the Lenders, (b) the Administrative Agent, (c) each Issuing Bank, (d) each provider of Banking Services,
to the extent the Banking Services Obligations in respect thereof constitute Secured Obligations, (e) each counterparty to
any Swap Agreement, to the extent the obligations thereunder constitute Secured Obligations, (f) the beneficiaries of each
indemnification obligation undertaken by any Loan Party under any Loan Document and (g) the successors and assigns of each
of the foregoing.


 


“Securities
Act” means the Securities Act of 1933, together with any amendment thereto or replacement thereof and any rules or regulations
promulgated thereunder.


 


“Securities
Laws” means the Securities Act, the Exchange Act, Sarbanes-Oxley and the applicable accounting and auditing principles,
rules, standards and practices promulgated, approved or incorporated by the SEC or the Public Company Accounting Oversight Board,
as each of the foregoing may be amended and in effect on any applicable date hereunder.


 


“Security
Agreement” means that certain First Amended and Restated Pledge and Security Agreement (including any and all supplements
thereto), dated as of the Second Amendment Effective Date, among the Loan Parties and the Administrative Agent, for the benefit
of the Administrative Agent and the other Secured Parties, and any other pledge or security agreement entered into, after the date
of this Agreement by any other Loan Party (as required by this Agreement or any other Loan Document) or any other Person for the
benefit of the Administrative Agent and the other Secured Parties, as the same may be amended, restated, supplemented or otherwise
modified from time to time.


 


“SOFR”
with respect to any day means the secured overnight financing rate published for such day by the NYFRB, as the administrator of
the benchmark (or a successor administrator), on the Federal Reserve Bank of New York’s Website.


 


“SOFR-Based
Rate” means SOFR, Compounded SOFR or Term SOFR.


 


“Specified
Covenants” has the meaning assigned to such term in Section 7.02.


 


“Specified
Equity Issuance” means an issuance of common Equity Interests of the Borrower for cash consideration, in each case on
terms and conditions acceptable to the Administrative Agent, except pursuant to any issuance made in accordance with the terms
and conditions of the Incentive Plan.


 


“Specified
Quarter End” has the meaning assigned to such term in Section 7.02.


 



    CREDIT AGREEMENT – Page 28


     


    





 


“Statement”
has the meaning assigned to such term in Section 2.16(g).


 


“Statutory
Reserve Rate” means a fraction (expressed as a decimal), the numerator of which is the number one and the denominator
of which is the number one minus the aggregate of the maximum reserve percentage (including any marginal, special, emergency or
supplemental reserves) established by the Board to which the Administrative Agent is subject with respect to the Adjusted
LIBO Rate, for eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the
Board). Such reserve percentages shall include those imposed pursuant to such Regulation D of the Board. Eurodollar Loans
shall be deemed to constitute eurocurrency funding and to be subject to such reserve requirements without benefit of or credit
for proration, exemptions or offsets that may be available from time to time to any Lender under such Regulation D of the
Board or any comparable regulation. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date
of any change in any reserve percentage.


 


“subsidiary”
means, with respect to any Person (the “parent”) at any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated with those of the parent in the parent’s consolidated
financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation,
limited liability company, partnership, association or other entity (a) of which securities or other ownership interests representing
more than 50% of the equity or more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the
general partnership interests are, as of such date, owned, controlled or held, or (b) that is, as of such date, otherwise
Controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.


 


“Subsidiary”
means any direct or indirect subsidiary of the Borrower or of any other Loan Party, as applicable.


 


“Supported
QFC” has the meaning assigned to it in Section 9.21.


 


“Swap Agreement”
means any agreement with respect to any swap, forward, spot, future, credit default or derivative transaction or option or similar
agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities,
or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction
or any combination of these transactions; provided that no phantom stock or similar plan providing for payments only on
account of services provided by current or former directors, officers, employees or consultants of the Borrower or the Subsidiaries
shall be a Swap Agreement.


 


“Swap Agreement
Obligations” means any and all obligations of the Loan Parties and their Subsidiaries, whether absolute or contingent
and howsoever and whensoever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof
and substitutions therefor), under (a) any Swap Agreement permitted hereunder with a Lender or an Affiliate of a Lender, and (b)
any cancellations, buy backs, reversals, terminations or assignments of any Swap Agreement transaction permitted hereunder with
a Lender or an Affiliate of a Lender.


 


“Swap Obligation”
means, with respect to any Guarantor, 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 or any rules or regulations promulgated
thereunder.


 


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


 



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“Term SOFR”
means the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.


 


“Transactions”
means (a) the execution, delivery and performance by the Borrower and the other Loan Parties of this Agreement and the other
Loan Documents, the borrowing of Loans and other credit extensions, the use of the proceeds thereof and the issuance of Letters
of Credit hereunder and (b) all other transactions related to any of the foregoing (including payment of fees and expenses
related to the foregoing).


 


“Type”,
when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising
such Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate Base Rate.


 


“UCC”
means the Uniform Commercial Code as in effect from time to time in the State of New York or in any other state, the laws of which
are required to be applied in connection with the issue of perfection of security interests.


 


“Unadjusted
Benchmark Replacement” means the Benchmark Replacement excluding the Benchmark Replacement Adjustment; provided that,
if the Unadjusted Benchmark Replacement as so determined would be less than 1.00%, the Unadjusted Benchmark Replacement will be
deemed to be 1.00% for the purposes of this Agreement.


 


“Unliquidated
Obligations” means, at any time, any Secured Obligations (or portion thereof) that are contingent in nature or unliquidated
at such time, including any Secured Obligation that is: (i) an obligation to reimburse a bank for drawings not yet made under a
letter of credit issued by it; (ii) any other obligation (including any guarantee) that is contingent in nature at such time; or
(iii) an obligation to provide collateral to secure any of the foregoing types of obligations.


 


“Unrestricted
Cash” means, at any time, cash on hand of the Loan Parties that meets each of the following requirements: such cash on
hand is (a) denominated in Dollars, (b) not subject to any Lien, except (i) a banker’s or securities intermediary
Lien or right of setoff pursuant to customary deposit or securities account arrangements and (ii) Liens to secure the Secured
Obligations (but not in an LC Collateral Account or otherwise specifically designated as cash collateral hereunder), (c) not
(i) subject to any restriction as to its use or (ii) held for any other purpose or use (including, for the avoidance
of doubt, without limitation, being held for use for any anticipated investment, any payment of Indebtedness to any other Person
(except the Lenders), any other anticipated specific payment or use or any other specific purpose), (d) located in a deposit
account at the Administrative Agent or another Lender (but only for so long as such account is subject to a deposit account control
agreement among the account holder, such Lender and the Administrative Agent), (e) located in the United States and (f) included
in “cash” and not “restricted cash” on the consolidated balance sheets of the Borrower.


 


“U.S.”
means the United States of America.


 


“U.S. Person”
means a “United States person” within the meaning of Section 7701(a)(30) of the Code.


 


“U.S. Tax
Compliance Certificate” has the meaning assigned to such term in Section 2.15(f)(ii)(B)(3).


 


“Withdrawal
Liability” means liability 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.


 



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“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.


 


SECTION 1.02.
Classification of Loans and Borrowings. For purposes of this Agreement, Loans may be classified and referred to by Type
(e.g., a “Eurodollar Loan”). Borrowings also may be classified and referred to by Type (e.g., a
“Eurodollar Borrowing”).


 


SECTION 1.03.
Terms Generally. The definitions of terms herein shall apply equally to the singular and plural forms of the terms
defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.
The words “include”, “includes” and “including” shall be deemed to be followed by the
phrase “without limitation”. The word “law” shall be construed as referring to all statutes, rules,
regulations, codes and other laws (including official rulings and interpretations thereunder having the force of law or with
which affected Persons customarily comply) and all judgments, orders and decrees of all Governmental Authorities. The word
“will” shall be construed to have the same meaning and effect as the word “shall”. Unless the context
requires otherwise (a) any definition of or reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from time to time amended, restated, supplemented
or otherwise modified (subject to any restrictions on such amendments, restatements, supplements or modifications set forth
herein), (b) any definition of or reference to any statute, rule or regulation shall be construed as referring thereto as
from time to time amended, supplemented or otherwise modified (including by succession of comparable successor laws), (c) any
reference herein to any Person shall be construed to include such Person’s successors and assigns (subject to any
restrictions on assignments set forth herein) and, in the case of any Governmental Authority, any other Governmental
Authority that shall have succeeded to any or all functions thereof, (d) the words “herein”, “hereof”
and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and
not to any particular provision hereof, (e) all references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement, (f) any reference in any
definition to the phrase “at any time” or “for any period” shall refer to the same time or period for
all calculations or determinations within such definition, and (g) the words “asset” and “property”
shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and
properties, including cash, securities, accounts and contract rights.


 


SECTION 1.04.
Accounting Terms; GAAP.


 


(a) Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect
from time to time; provided that, if after the date hereof there occurs any change in GAAP or in the application thereof
on the operation of any provision hereof and the Borrower notifies the Administrative Agent that the Borrower requests an amendment
to any provision hereof to eliminate the effect of such change in GAAP or in the application thereof (or if the Administrative
Agent notifies the 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 change in GAAP or in the application thereof, then such provision shall
be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such
notice shall have been withdrawn or such provision amended in accordance herewith. Notwithstanding any other provision contained
herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios
referred to herein shall be made (i) without giving effect to any election under Financial Accounting Standards Board Accounting
Standards Codification 825-10-25 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar
result or effect) to value any Indebtedness or other liabilities of any Loan Party, the Borrower or any Subsidiary at “fair
value”, as defined therein and (ii) without giving effect to any treatment of Indebtedness in respect of convertible debt
instruments under Financial Accounting Standards Board Accounting Standards Codification 470-20 (or any other Accounting Standards
Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or
bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount
thereof. Notwithstanding the foregoing for purposes of this Agreement, no effect shall be given to any change in GAAP arising out
of the change described in the Proposed Accounting Standards Update to Leases (Topic 840) dated August 17, 2010.


 



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SECTION 1.05.
Financial Covenant Calculations. The parties hereto acknowledge and agree that, for purposes of all calculations made in
determining compliance for any applicable period with the covenants set forth in Section 5.10, after any Disposition
permitted by Section 6.04(a)(vii) and (viii) in an amount in excess of $2,500,000, (A) Consolidated EBITDAR shall be
calculated after giving effect thereto on a Pro Forma Basis (to the extent the property or assets subject to such Disposition
were owned during the applicable period of calculation) (subject to adjustments mutually and reasonably acceptable to the
Borrower and the Administrative Agent), (B) Consolidated Interest Expense shall be calculated after giving effect
thereto (including the effect of any related incurrence of Indebtedness) on a Pro Forma Basis and (C) Consolidated Rent
Expense shall be calculated after giving effect thereto on a Pro Forma Basis (subject to adjustments mutually acceptable to
the Borrower and the Administrative Agent).


 


SECTION 1.06.
Status of Obligations. The Borrower shall take or cause such other Loan Party to take all such actions as shall be
necessary to cause the Secured Obligations to constitute senior indebtedness (however denominated). Without limiting the
foregoing, the Secured Obligations are hereby designated as “senior indebtedness” and as “designated senior
indebtedness” and words of similar import under and in respect of any indenture or other agreement or instrument under
which any other indebtedness is outstanding and are further given all such other designations as shall be required under the
terms of any other indebtedness in order that the Lenders may have and exercise remedies available or potentially available
to holders of senior indebtedness.


 


SECTION 1.07. Interest
Rates; LIBOR Notification. The interest rate on Eurodollar Loans is determined by reference to the LIBO Rate, which is derived
from the London interbank offered rate. The London interbank offered rate is intended to represent the rate at which contributing
banks may obtain short-term borrowings from each other in the London interbank market. In July 2017, the U.K. Financial Conduct
Authority announced that, after the end of 2021, it would no longer persuade or compel contributing banks to make rate submissions
to the ICE Benchmark Administration (together with any successor to the ICE Benchmark Administrator, the “IBA”) for
purposes of the IBA setting the London interbank offered rate. As a result, it is possible that commencing in 2022, the London
interbank offered rate may no longer be available or may no longer be deemed an appropriate reference rate upon which to determine
the interest rate on Eurodollar Loans. In light of this eventuality, public and private sector industry initiatives are currently
underway to identify new or alternative reference rates to be used in place of the London interbank offered rate. Upon the occurrence
of a Benchmark Transition Event or an Early Opt-In Election, Section 2.12(c) provides a mechanism for determining an alternative
rate of interest. The Administrative Agent will promptly notify the Borrower, pursuant to Section 2.12(e), of any change to the
reference rate upon which the interest rate on Eurodollar Loans is based. However, the Administrative Agent does not warrant or
accept any responsibility for, and shall not have any liability with respect to, the administration, submission or any other matter
related to the London interbank offered rate or other rates in the definition of “LIBO Rate” or with respect to any
alternative or successor rate thereto, or replacement rate thereof (including,
without limitation, (i) any such alternative, successor or replacement rate implemented pursuant to Section 2.12(c), whether upon
the occurrence of a Benchmark Transition Event or an Early Opt-in Election, and (ii) the implementation of any Benchmark Replacement
Conforming Changes pursuant to Section 2.12(d)), including without
limitation, whether the composition or characteristics of any such alternative, successor or replacement reference rate will be
similar to, or produce the same value or economic equivalence of, the LIBO Rate or have the same volume or liquidity as did the
London interbank offered rate prior to its discontinuance or unavailability.


 



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ARTICLE II



The Credits


 


SECTION 2.01. Revolving
Commitments. Subject to the terms and conditions set forth herein, each Lender severally (and not jointly) agrees to make
Revolving Loans in dollars to the Borrower from time to time during the Availability Period in an aggregate principal amount
that will not result in (i) such Lender’s Revolving Exposure exceeding such Lender’s Revolving Commitment or
(ii) the Aggregate Revolving Exposure exceeding the aggregate Revolving Commitments of all Lenders. Within the foregoing
limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Revolving
Loans.


 


SECTION 2.02.
Loans and Borrowings.


 


(a) Each Loan shall be
made as part of a Borrowing consisting of Loans of the same Type made by the Lenders ratably in accordance with their respective
Commitments. The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations
hereunder; provided that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s
failure to make Loans as required.


 


(b) Subject to Section 2.12,
each Revolving Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans as the Borrower may request in accordance
herewith, provided that all Revolving Borrowings made on the Effective Date must be made as ABR Borrowings but may be converted
into Eurodollar Borrowings in accordance with Section 2.06. Each Lender at its option may make any Eurodollar Loan by causing any
domestic or foreign branch or Affiliate of such Lender to make such Loan (and in the case of an Affiliate, the provisions of Sections
2.12, 2.13, 2.14 and 2.15 shall apply to such Affiliate to the same extent as to such Lender); provided that any exercise
of such option shall not affect the obligation of the Borrower to repay such Loan in accordance with the terms of this Agreement.


 


(c) At the commencement
of each Interest Period for any Eurodollar Borrowing, such Borrowing shall be in an aggregate amount that is an integral multiple
of $500,000 and not less than $1,000,000. ABR Borrowings may be in any amount. Borrowings of more than one Type may be outstanding
at the same time; provided that there shall not at any time be more than a total of six Eurodollar Borrowings outstanding.


 


(d) Notwithstanding
any other provision of this Agreement, the Borrower shall not be entitled to request, or to elect to convert or continue, any Borrowing
if the Interest Period requested with respect thereto would end after the Revolving Credit Maturity Date.


 


SECTION 2.03.
Requests for Borrowings. To request a Borrowing, the Borrower shall notify the Administrative Agent of such request
either in writing (delivered by hand or fax) in a form approved by the Administrative Agent and signed by the Borrower or by
telephone or through Electronic System, if arrangements for doing so have been approved by the Administrative Agent, (a) in
the case of a Eurodollar Borrowing, not later than 11:00 a.m., eastern time, three Business Days before the date of the
proposed Borrowing or (b) in the case of an ABR Borrowing, not later than noon, eastern time, on the date of the
proposed Borrowing; provided that any such notice of an ABR Revolving Borrowing to finance the reimbursement of an LC
Disbursement as contemplated by Section 2.04(e) may be given not later than 9:00 a.m., eastern time, on the date of the
proposed Borrowing. Each such telephonic Borrowing Request shall be irrevocable and shall be confirmed promptly by hand
delivery, fax or a communication through Electronic System to the Administrative Agent of a written Borrowing Request in a
form approved by the Administrative Agent and signed by the Borrower. Each such telephonic and written Borrowing Request
shall specify the following information in compliance with Section 2.01:


 


		(i)	the aggregate amount of the requested Borrowing, and a
breakdown of the separate wires comprising such Borrowing;



 



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		(ii)	the date of such Borrowing, which shall be a Business Day;



 


		(iii)	whether such Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing; and



 


		(iv)	in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by the definition of the term “Interest Period.”



 


If no election as to the Type of Borrowing
is specified, then the requested Borrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to any requested
Eurodollar Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration. Promptly
following receipt of a Borrowing Request in accordance with this Section, the Administrative Agent shall advise each Lender of
the details thereof and of the amount of such Lender’s Loan to be made as part of the requested Borrowing.


 


SECTION 2.04.
Letters of Credit.


 


(a) General. Subject
to the terms and conditions set forth herein, the Borrower may request the issuance of standby Letters of Credit denominated in
dollars as the applicant thereof for the support of its or its Subsidiaries’ obligations, in a form reasonably acceptable
to the Administrative Agent and the Issuing Bank, at any time and from time to time during the Availability Period. In the event
of any inconsistency between the terms and conditions of this Agreement and the terms and conditions of any Letter of Credit Agreement,
the terms and conditions of this Agreement shall control. Notwithstanding anything herein to the contrary, the Issuing Bank shall
have no obligation hereunder to issue, and shall not issue, any Letter of Credit (i) the proceeds of which would be made available
to any Person (A) to fund any activity or business of or with any Sanctioned Person, or in any country or territory that, at the
time of such funding, is the subject of any Sanctions or (B) in any manner that would result in a violation of any Sanctions by
any party to this Agreement, (ii) if any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms
purport to enjoin or restrain the Issuing Bank from issuing such Letter of Credit, or any Requirement of Law relating to the Issuing
Bank or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over
the Issuing Bank shall prohibit, or request that the Issuing Bank refrain from, the issuance of letters of credit generally or
such Letter of Credit in particular or shall impose upon the Issuing Bank with respect to such Letter of Credit any restriction,
reserve or capital requirement (for which the Issuing Bank is not otherwise compensated hereunder) not in effect on the Effective
Date, or shall impose upon the Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Effective Date
and which the Issuing Bank in good faith deems material to it, or (iii) if the issuance of such Letter of Credit would violate
one or more policies of the Issuing Bank applicable to letters of credit generally; provided that, notwithstanding anything
herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines,
requirements or directives thereunder or issued in connection therewith or in the implementation thereof, and (y) all requests,
rules, guidelines, requirements or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking
Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant
to Basel III, shall in each case be deemed not to be in effect on the Effective Date for purposes of clause (ii) above, regardless
of the date enacted, adopted, issued or implemented. Existing Letters of Credit are Letters of Credit deemed to be issued hereunder
for all intents and purposes. The Loan Parties and the Issuing Banks each agree that each Existing Letter of Credit will be terminated
and reissued pursuant to the terms of this Section on before the date that is six months after the Effective Date of this Agreement.


 



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(b) Notice of Issuance,
Amendment, Renewal, Extension; Certain Conditions. To request the issuance of a Letter of Credit (or the amendment, renewal
or extension of an outstanding Letter of Credit), the Borrower shall hand deliver or fax (or transmit through Electronic System,
if arrangements for doing so have been approved by the Issuing Bank) to the Issuing Bank and the Administrative Agent (reasonably
in advance of the requested date of issuance, amendment, renewal or extension, but in any event no less than three Business Days)
a notice requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be amended, renewed or extended,
and specifying the date of issuance, amendment, renewal or extension (which shall be a Business Day), the date on which such Letter
of Credit is to expire (which shall comply with paragraph (c) of this Section), the amount of such Letter of Credit, the name
and address of the beneficiary thereof, and such other information as shall be necessary to prepare, amend, renew or extend such
Letter of Credit. In addition, as a condition to any such Letter of Credit issuance, the Borrower shall have entered into a continuing
agreement (or other letter of credit agreement) for the issuance of letters of credit and/or shall submit a letter of credit application,
in each case, as required by the Issuing Bank and using such Issuing Bank’s standard form (each, a “Letter of Credit
Agreement”). A Letter of Credit shall be issued, amended, renewed or extended only if (and upon issuance, amendment,
renewal or extension of each Letter of Credit the Borrower shall be deemed to represent and warrant that), after giving effect
to such issuance, amendment, renewal or extension (i) the aggregate LC Exposure shall not exceed $15,000,000, (ii) no
Revolving Lender’s Revolving Exposure shall exceed its Revolving Commitment and (iii) the Aggregate Revolving Exposure shall
not exceed the aggregate Revolving Commitments of all Lenders. Notwithstanding the foregoing or anything to the contrary contained
herein, no Issuing Bank shall be obligated to issue or modify any Letter of Credit if, immediately after giving effect thereto,
the outstanding LC Exposure in respect of all Letters of Credit issued by such Person and its Affiliates would exceed such Issuing
Bank’s Issuing Bank Sublimit. Without limiting the foregoing and without affecting the limitations contained herein, it is
understood and agreed that the Borrower may from time to time request that an Issuing Bank issue Letters of Credit in excess of
its individual Issuing Bank Sublimit in effect at the time of such request, and each Issuing Bank agrees to consider any such request
in good faith. Any Letter of Credit so issued by an Issuing Bank in excess of its individual Issuing Bank Sublimit then in effect
shall nonetheless constitute a Letter of Credit for all purposes of the Credit Agreement, and shall not affect the Issuing Bank
Sublimit of any other Issuing Bank, subject to the limitations on the aggregate LC Exposure set forth in clause (i) of this Section
2.04(b).


 


(c) Expiration Date.
Each Letter of Credit shall expire (or be subject to termination or non-renewal by notice from the Issuing Bank to the beneficiary
thereof) at or prior to the close of business on the earlier of (i) the date one year after the date of the issuance of such
Letter of Credit (or, in the case of any renewal or extension thereof, including, without limitation, any automatic renewal provision,
one year after such renewal or extension) and (ii) the date that is five Business Days prior to the Revolving Credit Maturity
Date; provided, that notwithstanding clause (ii) above, a Letter of Credit with a one year maturity date issued under clause
(i) above may expire after the Revolving Credit Maturity Date (a “Cash Collateralized LC”) if the Borrower has
delivered cash collateral to the Issuing Bank no later than the date that is thirty (30) days prior to the Revolving Credit Maturity
Date (the “LC Expiration Date”) in an amount equal to 105% of the face amount of any such Letter of Credit (the
“LC Cash Collateral”).  To the extent the Borrower fails to provide the LC Cash Collateral on the LC Expiration
Date, the Borrower shall be deemed to have requested an ABR Revolving Borrowing in accordance with the terms of Section 2.03 hereof
in an amount equal to 105% of the face amount of the Cash Collateralized LC, the proceeds of which will be delivered to the Issuing
Bank as cash collateral.  In the event that any such ABR Revolving Borrowing cannot be made for any reason on the LC Expiration
Date, then each Lender hereby agrees that it shall promptly fund its participation interest acquired pursuant to Section 2.04(d)
in such Cash Collateralized LC (which shall be delivered to the Issuing Bank as cash collateral).  Upon the cash collateralization
of any Letter of Credit pursuant to this Section, such Cash Collateralized LC shall be deemed to be issued outside of this Agreement;
provided, that, the fees associated with such Letter of Credit under the terms hereof shall continue to accrue, but shall
thereafter be solely for the benefit of the Issuing Bank.


 



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(d) Participations.
By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further
action on the part of the Issuing Bank or the Revolving Lenders, the Issuing Bank hereby grants to each Revolving Lender, and each
Revolving Lender hereby acquires from the Issuing Bank, a participation in such Letter of Credit equal to such Lender’s Applicable
Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the
foregoing, each Revolving Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account
of the Issuing Bank, such Lender’s Applicable Percentage of each LC Disbursement made by the Issuing Bank and not reimbursed
by the Borrower on the date due as provided in paragraph (e) of this Section, or of any reimbursement payment required to be refunded
to the Borrower for any reason. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations pursuant
to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever,
including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or reduction
or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction
whatsoever.


 


(e) Reimbursement.
If the Issuing Bank shall make any LC Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such LC Disbursement
by paying to the Administrative Agent an amount equal to such LC Disbursement not later than 1:00 p.m., eastern time, on (i) the
Business Day that the Borrower receives notice of such LC Disbursement, if such notice is received prior to 9:00 a.m., eastern
time, on the day of receipt, or (ii) the Business Day immediately following the day that the Borrower receives such notice, if
such notice is received after 9:00 a.m., eastern time, on the day of receipt; provided that the Borrower may, subject to
the conditions to borrowing set forth herein, request in accordance with Section 2.03 that such payment be financed with an ABR
Revolving Borrowing in an equivalent amount and, to the extent so financed, the Borrower’s obligation to make such payment
shall be discharged and replaced by the resulting ABR Revolving Borrowing. If the Borrower fails to make such payment when due,
the Administrative Agent shall notify each Revolving Lender of the applicable LC Disbursement, the payment then due from the Borrower
in respect thereof, and such Lender’s Applicable Percentage thereof. Promptly following receipt of such notice, each Revolving
Lender shall pay to the Administrative Agent its Applicable Percentage of the payment then due from the Borrower, in the same manner
as provided in Section 2.05 with respect to Loans made by such Lender (and Section 2.05 shall apply, mutatis mutandis,
to the payment obligations of the Revolving Lenders), and the Administrative Agent shall promptly pay to the Issuing Bank the amounts
so received by it from the Revolving Lenders. Promptly following receipt by the Administrative Agent of any payment from the Borrower
pursuant to this paragraph, the Administrative Agent shall distribute such payment to the Issuing Bank or, to the extent that Revolving
Lenders have made payments pursuant to this paragraph to reimburse the Issuing Bank, then to such Lenders and the Issuing Bank,
as their interests may appear. Any payment made by a Revolving Lender pursuant to this paragraph to reimburse the Issuing Bank
for any LC Disbursement (other than the funding of ABR Revolving Loans as contemplated above) shall not constitute a Loan and shall
not relieve the Borrower of its obligation to reimburse such LC Disbursement.


 



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(f) Obligations Absolute.
The Borrower’s obligation to reimburse LC Disbursements as provided in paragraph (e) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit, any Letter of
Credit Agreement or this Agreement, or any term or provision therein or herein, (ii) any draft or other document presented under
a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate
in any respect, (iii) any payment by the Issuing Bank under a Letter of Credit against presentation of a draft or other document
that does not comply with the terms of such Letter of Credit, or (iv) any other event or circumstance whatsoever, whether or not
similar to any of the foregoing, that might, but for the provisions of this Section, constitute a legal or equitable discharge
of, or provide a right of setoff against, the Borrower’s obligations hereunder. None of the Administrative Agent, the Revolving
Lenders or the Issuing Bank, or any of their Related Parties, shall have any liability or responsibility by reason of or in connection
with the issuance or transfer of any Letter of Credit, or any payment or failure to make any payment thereunder (irrespective of
any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission
or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required
to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the
control of the Issuing Bank; provided that the foregoing shall not be construed to excuse the Issuing Bank from liability
to the Borrower to the extent of any direct damages (as opposed to special, indirect, consequential or punitive damages, claims
in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that
are caused by the Issuing Bank’s failure to exercise care when determining whether drafts and other documents presented under
a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or
willful misconduct on the part of the Issuing Bank (as finally determined by a court of competent jurisdiction), the Issuing Bank
shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality
thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance
with the terms of a Letter of Credit, the Issuing Bank may, in its sole discretion, either accept and make payment upon such documents
without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept
and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.


 


(g) Disbursement Procedures.
The Issuing Bank shall, promptly following its receipt thereof, examine all documents purporting to represent a demand for payment
under a Letter of Credit. The Issuing Bank shall promptly notify the Administrative Agent and the Borrower by telephone (confirmed
by fax) of such demand for payment and whether the Issuing Bank has made or will make an LC Disbursement thereunder; provided
that any failure to give or delay in giving such notice shall not relieve the Borrower of its obligation to reimburse the Issuing
Bank and the Revolving Lenders with respect to any such LC Disbursement.


 


(h) Interim Interest.
If the Issuing Bank shall make any LC Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in full on the
date such LC Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and including the date such
LC Disbursement is made to but excluding the date that the Borrower reimburses such LC Disbursement, at the rate per annum then
applicable to ABR Revolving Loans and such interest shall be due and payable on the date when such reimbursement is due; provided
that, if the Borrower fails to reimburse such LC Disbursement when due pursuant to paragraph (e) of this Section, then Section
2.11(c) shall apply. Interest accrued pursuant to this paragraph shall be for the account of the Issuing Bank, except that interest
accrued on and after the date of payment by any Revolving Lender pursuant to paragraph (e) of this Section to reimburse the Issuing
Bank shall be for the account of such Lender to the extent of such payment.


 



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(i) Replacement of
the Issuing Bank.(i) The Issuing Bank may be replaced at any time by written agreement among the Borrower, the Administrative
Agent, the replaced Issuing Bank and the successor Issuing Bank. The Administrative Agent shall notify the Revolving Lenders of
any such replacement of the Issuing Bank. At the time any such replacement shall become effective, the Borrower shall pay all unpaid
fees accrued for the account of the replaced Issuing Bank pursuant to Section 2.10(b). From and after the effective date of any
such replacement, (i) the successor Issuing Bank shall have all the rights and obligations of the Issuing Bank under this Agreement
with respect to Letters of Credit to be issued thereafter and (ii) references herein to the term “Issuing Bank” shall
be deemed to refer to such successor or to any previous Issuing Bank, or to such successor and all previous Issuing Banks, as the
context shall require. After the replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto
and shall continue to have all the rights and obligations of an Issuing Bank under this Agreement with respect to Letters of Credit
then outstanding and issued by it prior to such replacement, but shall not be required to issue additional Letters of Credit.


 


(ii) Subject
to the appointment and acceptance of a successor Issuing Bank, the Issuing Bank may resign as an Issuing Bank at any time upon
thirty days’ prior written notice to the Administrative Agent, the Borrower and the Lenders, in which case, such Issuing
Bank shall be replaced in accordance with Section 2.04(i) above.


 


(j) Cash Collateralization.
If any Event of Default shall occur and be continuing, on the Business Day that the Borrower receives notice from the Administrative
Agent or the Required Lenders (or, if the maturity of the Loans has been accelerated, Revolving Lenders with LC Exposure representing
greater than 50% of the aggregate LC Exposure) demanding the deposit of cash collateral pursuant to this paragraph, the Borrower
shall deposit in an account with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the Revolving
Lenders (the “LC Collateral Account”), an amount in cash equal to 105% of the amount of the LC Exposure as of
such date plus accrued and unpaid interest thereon; provided that the obligation to deposit such cash collateral shall become
effective immediately, and such deposit shall become immediately due and payable, without demand or other notice of any kind, upon
the occurrence of any Event of Default with respect to the Borrower described in clause (f) of Article VII. The Borrower
also shall deposit cash collateral in accordance with this paragraph as and to the extent required by Section 2.09(b) or 2.18.
Each such deposit shall be held by the Administrative Agent as collateral for the payment and performance of the Secured Obligations.
The Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over the LC Collateral
Account and the Borrower hereby grants the Administrative Agent a security interest in the LC Collateral Account and all moneys
or other assets on deposit therein or credited thereto. Other than any interest earned on the investment of such deposits, which
investments shall be made at the option and sole discretion of the Administrative Agent and at the Borrower’s risk and expense,
such deposits shall not bear interest. Interest or profits, if any, on such investments shall accumulate in such account. Moneys
in such account shall be applied by the Administrative Agent to reimburse the Issuing Bank for LC Disbursements for which it has
not been reimbursed and, to the extent not so applied, shall be held for the satisfaction of the reimbursement obligations of the
Borrower for the LC Exposure at such time or, if the maturity of the Loans has been accelerated (but subject to the consent of
Revolving Lenders with LC Exposure representing greater than 50% of the aggregate LC Exposure), be applied to satisfy other Secured
Obligations. If the Borrower is required to provide an amount of cash collateral hereunder as a result of the occurrence of an
Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrower within three (3) Business
Days after all such Events of Default have been cured or waived as confirmed in writing by the Administrative Agent.


 



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(k) Issuing Bank Reports
to the Administrative Agent. Unless otherwise agreed by the Administrative Agent, each Issuing Bank shall, in addition to its
notification obligations set forth elsewhere in this Section, report in writing to the Administrative Agent (i) periodic activity
(for such period or recurrent periods as shall be requested by the Administrative Agent) in respect of Letters of Credit issued
by such Issuing Bank, including all issuances, extensions, amendments and renewals, all expirations and cancelations and all disbursements
and reimbursements, (ii) reasonably prior to the time that such Issuing Bank issues, amends, renews or extends any Letter of Credit,
the date of such issuance, amendment, renewal or extension, and the stated amount of the Letters of Credit issued, amended, renewed
or extended by it and outstanding after giving effect to such issuance, amendment, renewal or extension (and whether the amounts
thereof shall have changed), (iii) on each Business Day on which such Issuing Bank makes any LC Disbursement, the date and amount
of such LC Disbursement, (iv) on any Business Day on which the Borrower fails to reimburse an LC Disbursement required to be reimbursed
to such Issuing Bank on such day, the date of such failure and the amount of such LC Disbursement, and (v) on any other Business
Day, such other information as the Administrative Agent shall reasonably request as to the Letters of Credit issued by such Issuing
Bank.


 


(l) LC Exposure Determination.
For all purposes of this Agreement, the amount of a Letter of Credit that, by its terms or the terms of any document related thereto,
provides for one or more automatic increases in the stated amount thereof shall be deemed to be the maximum stated amount of such
Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at the time
of determination.


 


(m) Letters of Credit
Issued for Account of Subsidiaries. Notwithstanding that a Letter of Credit issued or outstanding hereunder supports any obligations
of, or is for the account of, a Subsidiary, or states that a Subsidiary is the “account party,” “applicant,”
“customer,” “instructing party,” or the like of or for such Letter of Credit, and without derogating from
any rights of the applicable Issuing Bank (whether arising by contract, at law, in equity or otherwise) against such Subsidiary
in respect of such Letter of Credit, the Borrower (i) shall reimburse, indemnify and compensate the applicable Issuing Bank hereunder
for such Letter of Credit (including to reimburse any and all drawings thereunder) as if such Letter of Credit had been issued
solely for the account of the Borrower and (ii) irrevocably waives any and all defenses that might otherwise be available to it
as a guarantor or surety of any or all of the obligations of such Subsidiary in respect of such Letter of Credit. The Borrower
hereby acknowledges that the issuance of such Letters of Credit for its Subsidiaries inures to the benefit of the Borrower, and
that the Borrower’s business derives substantial benefits from the businesses of such Subsidiaries.


 


SECTION 2.05.
Funding of Borrowings.


 


(a) Each Lender shall
make each Loan to be made by such Lender hereunder on the proposed date thereof solely by wire transfer of immediately available
funds by 1:00 p.m., eastern time, to the account of the Administrative Agent most recently designated by it for such purpose by
notice to the Lenders in an amount equal to such Lender’s Applicable Percentage. The Administrative Agent will make such
Loans available to the Borrower by promptly crediting the funds so received in the aforesaid account of the Administrative Agent
to the Funding Account(s); provided that ABR Revolving Loans made to finance the reimbursement of an LC Disbursement as
provided in Section 2.04(e) shall be remitted by the Administrative Agent to the Issuing Bank.


 



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(b) Unless the Administrative
Agent shall have received notice from a Lender prior to the proposed date of any Borrowing that such Lender will not make available
to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has
made such share available on such date in accordance with paragraph (a) of this Section and may, in reliance upon such assumption,
make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable
Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount with interest thereon, for each day from and including the date such amount
is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case of such
Lender, the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation or (ii) in the case of the Borrower, the interest rate applicable to ABR Revolving Loans.
If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included
in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that
shall have failed to make such payment to the Administrative Agent.


 


SECTION 2.06. Interest
Elections.


 


(a) Each Borrowing initially
shall be of the Type specified in the applicable Borrowing Request and, in the case of a Eurodollar Borrowing, shall have an initial
Interest Period as specified in such Borrowing Request. Thereafter, the Borrower may elect to convert such Borrowing to a different
Type or to continue such Borrowing and, in the case of a Eurodollar Borrowing, may elect Interest Periods therefor, all as provided
in this Section. The Borrower may elect different options with respect to different portions of the affected Borrowing, in which
case each such portion shall be allocated ratably among the Lenders holding the Loans comprising such Borrowing, and the Loans
comprising each such portion shall be considered a separate Borrowing.


 


(b) To make an election
pursuant to this Section, the Borrower shall notify the Administrative Agent of such election by telephone or through Electronic
System, if arrangements for doing so have been approved by the Administrative Agent, by the time that a Borrowing Request would
be required under Section 2.03 if the Borrower were requesting a Borrowing of the Type resulting from such election to be made
on the effective date of such election. Each such telephonic Interest Election Request shall be irrevocable and shall be confirmed
promptly by hand delivery, Electronic System or fax to the Administrative Agent of a written Interest Election Request in a form
approved by the Administrative Agent and signed by the Borrower.


 


(c) Each telephonic and
written Interest Election Request (including requests submitted through Electronic System) shall specify the following information
in compliance with Section 2.02:


 


(i) the Borrowing
to which such Interest Election Request applies and, if different options are being elected with respect to different portions
thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant
to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);


 


(ii) the
effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day;


 


(iii) whether
the resulting Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing; and


 



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(iv) if the
resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be applicable thereto after giving effect to such election,
which shall be a period contemplated by the definition of the term “Interest Period”.


 


If any such Interest Election Request requests
a Eurodollar Borrowing but does not specify an Interest Period, then the Borrower shall be deemed to have selected an Interest
Period of one month’s duration.


 


(d) Promptly following
receipt of an Interest Election Request, the Administrative Agent shall advise each Lender of the details thereof and of such Lender’s
portion of each resulting Borrowing.


 


(e) If the Borrower fails
to deliver a timely Interest Election Request with respect to a Eurodollar Borrowing prior to the end of the Interest Period applicable
thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing shall be converted
to an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is continuing and the
Administrative Agent, at the request of the Required Lenders, so notifies the Borrower, then, so long as an Event of Default is
continuing (i) no outstanding Borrowing may be converted to or continued as a Eurodollar Borrowing and (ii) unless repaid, each
Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of the Interest Period applicable thereto.


 


SECTION 2.07.
Termination and Reduction of Commitments.


 


(a) Unless previously
terminated, all the Revolving Commitments shall terminate on the Revolving Credit Maturity Date.


 


(b) The Borrower may
at any time terminate the Revolving Commitments upon (i) the indefeasible payment in full in cash of all outstanding Loans
and LC Disbursements, together with accrued and unpaid interest thereon, (ii) the termination, expiration, or cancellation
and return of all outstanding Letters of Credit (or alternatively, with respect to each such Letter of Credit, the furnishing to
the Administrative Agent of a cash deposit, or at the discretion of the Administrative Agent a backup standby letter of credit
satisfactory to the Administrative Agent and the Issuing Bank, in an amount equal to 105% of the LC Exposure as of the date of
such payment), (iii) the indefeasible payment in full in cash of the accrued and unpaid fees, and (iv) the indefeasible
payment in full in cash of all reimbursable expenses and other Secured Obligations (other than Unliquidated Obligations for which
no claim has been made and other obligations expressly stated to survive such payment and termination of this Agreement), together
with accrued and unpaid interest thereon.


 


(c) Optional
Commitment Reductions. The Borrower may from time to time reduce the Revolving Commitments; provided that (i) each
reduction of the Revolving Commitments shall be in an amount that is an integral multiple of $1,000,000 and not less than
$5,000,000 and (ii) the Borrower shall not terminate or reduce the Revolving Commitments if, after giving effect to any
concurrent prepayment of the Revolving Loans in accordance with Section 2.09, the Aggregate Revolving Exposure would exceed
the aggregate Revolving Commitments of all Lenders.


 


(d) Mandatory
Commitment Reductions.


 


(i) Automatic.
Unless previously reduced to an amount not in excess of the amounts set forth below on each date set forth below, the aggregate
Revolving Commitments of all Lenders shall be automatically and permanently reduced without notice to the Borrower or any other
Loan Party to the amounts set forth below on such dates set forth below:


 



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(A) $105,000,000 on January
3, 2021, and


 


(B) $95,000,000 on April
4, 2021.


 


(ii) Prepayment Events.
The aggregate Revolving Commitments of all Lenders shall be automatically and permanently reduced without notice to the Borrower
or any other Loan Party by the amount of Net Proceeds from each Prepayment Event on the date of occurrence of each such Prepayment
Event.


 


Each mandatory reduction
described in this clause (d), a “Mandatory Commitment Reduction”. Each Mandatory Commitment Reduction shall
be made ratably among the Lenders in accordance with their respective Revolving Commitments. Each Mandatory Commitment Reduction
in this clause (d) will be in addition to, and will not be reduced by, any (x) other mandatory commitment reduction or
(y) optional commitment reduction.


 


(e) The Borrower shall
notify the Administrative Agent of (i) any election to terminate or reduce the Revolving Commitments under paragraph (b)
or (c) of this Section and (ii) any mandatory commitment reduction, in each case, at least three (3) Business Days prior to
the effective date of such termination or reduction, specifying such election and the effective date thereof. Promptly following
receipt of any notice, the Administrative Agent shall advise the Lenders of the contents thereof. Each notice delivered by the
Borrower pursuant to this Section shall be irrevocable; provided that a notice of termination of the Revolving Commitments
delivered by the Borrower may state that such notice is conditioned upon the effectiveness of other credit facilities, in which
case such notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified effective date)
if such condition is not satisfied. Any termination or reduction of the Revolving Commitments shall be permanent. Each reduction
of the Commitments shall be made ratably among the Lenders in accordance with their respective Revolving Commitments.


 


SECTION 2.08.
Repayment of Loans; Evidence of Debt.


 


(a) The Borrower hereby
unconditionally promises to pay to the Administrative Agent for the account of each Revolving Lender the then unpaid principal
amount of each Revolving Loan on the Revolving Credit Maturity Date.


 


(b) The Borrower hereby
unconditionally promises to pay to the Administrative Agent for the account of each Lender the then unpaid principal amount of
the Obligations on the Revolving Credit Maturity Date.


 


(c) Each Lender shall
maintain in accordance with its usual practice an account or accounts evidencing the Indebtedness of the Borrower to such Lender
resulting from each Loan made by such Lender, including the amounts of principal and interest payable and paid to such Lender from
time to time hereunder.


 


(d) The Administrative
Agent shall maintain accounts in which it shall record (i) the amount of each Loan made hereunder, the Type thereof and the Interest
Period applicable thereto, if any, (ii) the amount of any principal or interest due and payable or to become due and payable from
the Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder for the account
of the Lenders and each Lender’s share thereof.


 



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(e) The entries made
in the accounts maintained pursuant to paragraph (c) and (d) of this Section shall be prima facie evidence of the existence
and amounts of the obligations recorded therein; provided that the failure of any Lender or the Administrative Agent to
maintain such accounts or any error therein shall not in any manner affect the obligation of the Borrower to repay the Loans in
accordance with the terms of this Agreement.


 


(f) Any Lender may request
that Loans made by it be evidenced by a promissory note. In such event, the Borrower shall prepare, execute and deliver to such
Lender a promissory note payable to such Lender (or, if requested by such Lender, to such Lender and its registered assigns) and
in a form approved by the Administrative Agent. Thereafter, the Loans evidenced by such promissory note and interest thereon shall
at all times (including after assignment pursuant to Section 9.04) be represented by one or more promissory notes in such form.


 


SECTION 2.09. Prepayment
of Loans.


 


(a) The Borrower shall
have the right at any time and from time to time to prepay any Borrowing in whole or in part, subject to prior notice in accordance
with paragraph (f) of this Section and, if applicable, payment of any break funding expenses under Section 2.14.


 


(b) In the event and
on such occasion that the Aggregate Revolving Exposure exceeds the aggregate Revolving Commitments of all Lenders, the Borrower
shall prepay the Revolving Loans, and/or LC Exposure in the aggregate amount equal to such excess (or, if no such Borrowings are
outstanding, deposit cash collateral in the LC Collateral Account in an aggregate amount equal to such excess, in accordance with
Section 2.04(j)).


 


(c) In the event and
on each occasion that any Net Proceeds are received by or on behalf of any Loan Party or any Subsidiary in respect of any Prepayment
Event, the Borrower shall, no later than one (1) Business Day after such Net Proceeds are received by any Loan Party or Subsidiary,
prepay the Obligations and cash collateralize the LC Exposure as set forth in Section 2.09(d) below in an aggregate amount equal
to (x) in the case of a Prepayment Event occurring during the Amendment Period, 100% of such Net Proceeds and (y) in
the case of a Prepayment Event occurring after the termination of the Amendment Period that is (i) a Sale Leaseback permitted
by Section 6.12 or any prepayment event described in clause (c) of the definition of the term “Prepayment Event”, not
less than 50% of such Net Proceeds and (y) any other type of prepayment event, 100% of such Net Proceeds.


 


(d) All prepayments required
to be made pursuant to Section 2.09(c) shall be applied, first to prepay the Revolving Loans, and second to cash
collateralize outstanding LC Exposure, in each case of first and second, with a corresponding reduction in the aggregate
Revolving Commitment in accordance with the terms of Section 2.07.


 


(e) At any time after
the fifth Business Day following the Second Amendment Effective Date, if (x) the Aggregate Credit Exposure exceeds $75,000,000
and (y) the Loan Parties and their Subsidiaries have Excess Cash, in each case the Borrower shall prepay Revolving Borrowings
on the immediately following Business Day, which prepayment shall be in an amount equal to the amount of such Excess Cash as of
the end of such immediately preceding Business Day, until the Aggregate Revolving Exposure has been repaid in full on such day
or, if no Borrowings are outstanding, cash collateral has been deposited in the LC Collateral Account in an aggregate amount equal
to the amount of LC Exposure, in accordance with Section 2.04(j). Each prepayment of Borrowings pursuant to this Section 2.09(e)
shall be applied first, ratably to any ABR Loans then outstanding, and, second, to any Eurodollar Loans then outstanding, and if
more than one Eurodollar Loan is then outstanding, to each such Eurodollar Loan in order of priority beginning with the Eurodollar
Loan with the least number of days remaining in the Interest Period applicable thereto and ending with the Eurodollar Loan with
the most number of days remaining in the Interest Period applicable thereto. Prepayments pursuant to this Section 2.09(e)
shall be accompanied by accrued interest to the extent required by Section 2.11 and break funding payments to the extent required
by Section 2.14.


 



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(f) The Borrower shall
notify the Administrative Agent by telephone (confirmed by fax) or through Electronic System, if arrangements for doing so have
been approved by the Administrative Agent, of any prepayment under this Section: (i) in the case of prepayment of a Eurodollar
Borrowing, not later than 10:00 a.m., eastern time, three (3) Business Days before the date of prepayment, or (ii) in the case
of prepayment of an ABR Borrowing, not later than 10:00 a.m., eastern time, one (1) Business Day before the date of prepayment.
Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion
thereof to be prepaid and whether the prepayment is required to be accompanied by a corresponding reduction in the aggregate Revolving
Commitment; provided that if a notice of prepayment is given in connection with a conditional notice of termination of the
Revolving Commitments as contemplated by Section 2.07, then such notice of prepayment may be revoked if such notice of termination
is revoked in accordance with Section 2.07. Promptly following receipt of any such notice, the Administrative Agent shall
advise the Lenders of the contents thereof. Each partial prepayment of any Revolving Borrowing shall be in an amount that would
be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply
fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included
in the prepaid Borrowing. Prepayments shall be accompanied by (i) accrued interest to the extent required by Section 2.11
and (ii) break funding payments pursuant to Section 2.14.


 


SECTION 2.10. Fees.


 


(a) The Borrower agrees
to pay to the Administrative Agent a commitment fee for the account of each Revolving Lender, which shall accrue at the Applicable
Rate on the daily amount of the undrawn portion of the Revolving Commitment of such Lender during the period from and including
the Effective Date to but excluding the date on which the Lenders’ Revolving Commitments terminate; it being understood that
the LC Exposure of a Lender shall be included in the drawn portion of the Revolving Commitment of such Lender for purposes of calculating
the commitment fee. Accrued commitment fees shall be payable in arrears on the last day of March, June, September and December
of each year and on the date on which the Revolving Commitments terminate, commencing on the first such date to occur after the
date hereof. All commitment fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number
of days elapsed (including the first day but excluding the last day).


 


(b) The Borrower agrees
to pay (i) to the Administrative Agent for the account of each Revolving Lender a participation fee with respect to its participations
in Letters of Credit, which shall accrue at the same Applicable Rate used to determine the interest rate applicable to Eurodollar
Revolving Loans on the daily amount of such Lender’s LC Exposure (excluding any portion thereof attributable to unreimbursed
LC Disbursements) during the period from and including the Effective Date to but excluding the later of the date on which such
Lender’s Revolving Commitment terminates and the date on which such Lender ceases to have any LC Exposure, and (ii) to
the Issuing Bank a fronting fee, which shall accrue at the rate of 0.125% per annum on the daily amount of the LC Exposure attributable
to Letters of Credit issued by such Issuing Bank (excluding any portion thereof attributable to unreimbursed LC Disbursements)
during the period from and including the Effective Date to but excluding the later of the date of termination of the Commitments
and the date on which there ceases to be any LC Exposure, as well as the Issuing Bank’s standard fees and commissions with
respect to the issuance, amendment, cancellation, negotiation, transfer, presentment, renewal or extension of any Letter of Credit
or processing of drawings thereunder. Participation fees and fronting fees accrued through and including the last day of March,
June, September and December of each year shall be payable on the third Business Day following such last day, commencing on the
first such date to occur after the Effective Date; provided that all such fees shall be payable on the date on which the
Revolving Commitments terminate and any such fees accruing after the date on which the Revolving Commitments terminate shall be
payable on demand. Any other fees payable to the Issuing Bank pursuant to this paragraph shall be payable within ten (10)
days after demand. All participation fees and fronting fees shall be computed on the basis of a year of 360 days and shall be payable
for the actual number of days elapsed (including the first day but excluding the last day).


 



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(c) The Borrower agrees
to pay to the Administrative Agent or any other Lender, for its own account, fees payable in the amounts and at the times separately
agreed upon between the Borrower and the Administrative Agent or such other Lender.


 


(d) All fees payable
hereunder shall be paid on the dates due, in immediately available funds, to the Administrative Agent (or to the Issuing Bank,
in the case of fees payable to it) for distribution, in the case of commitment fees and participation fees, to the Lenders entitled
thereto. Fees paid shall not be refundable under any circumstances.


 


SECTION 2.11.
Interest.


 


(a) The Loans comprising
each ABR Borrowing shall bear interest at the sum of the Alternate Base Rate plus the Applicable Rate.


 


(b) The Loans comprising
each Eurodollar Borrowing shall bear interest at the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus
the Applicable Rate.


 


(c) Notwithstanding the
foregoing, during the occurrence and continuance of an Event of Default, the Administrative Agent or the Required Lenders may,
at their option, by notice to the Borrower (which notice may be revoked at the option of the Required Lenders notwithstanding any
provision of Section 9.02 requiring the consent of “each Lender affected thereby” for reductions in interest rates),
declare that (i) all Loans shall bear interest at 2% plus the rate otherwise applicable to such Loans as provided in the preceding
paragraphs of this Section or (ii) in the case of any other amount outstanding hereunder, such amount shall accrue at 2% plus the
rate applicable to such fee or other obligation as provided hereunder.


 


(d) Accrued interest
on each Loan (for ABR Loans, accrued through the last day of the prior calendar month) shall be payable in arrears on each Interest
Payment Date for such Loan and, in the case of Revolving Loans, upon termination of the Revolving Commitments; provided
that (i) interest accrued pursuant to paragraph (c) of this Section shall be payable on demand, (ii) in the event of any repayment
or prepayment of any Loan (other than a prepayment of an ABR Revolving Loan prior to the end of the Availability Period), accrued
interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii) in the
event of any conversion of any Eurodollar Loan prior to the end of the current Interest Period therefor, accrued interest on such
Loan shall be payable on the effective date of such conversion.


 


(e) All interest hereunder
shall be computed on the basis of a year of 360 days, except that interest computed by reference to the Alternate Base Rate at
times when the Alternate Base Rate is based on the Prime Rate shall be computed on the basis of a year of 365 days (or 366 days
in a leap year), and shall be payable for the actual number of days elapsed (including the first day but excluding the last day).
The applicable Alternate Base Rate, Adjusted LIBO Rate or LIBO Rate shall be determined by the Administrative Agent, and such determination
shall be conclusive absent manifest error.


 



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SECTION 2.12.
Alternate Rate of Interest; Illegality.


 


(a) If prior to the commencement
of any Interest Period for a Eurodollar Borrowing:


 


(i) the Administrative
Agent determines (which determination shall be conclusive and binding absent manifest error) that adequate and reasonable means
do not exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as applicable (including, without limitation, by means of
an Interpolated Rate or because the LIBO Screen Rate is not available or published on a current basis) for such Interest Period;
provided that no Benchmark Transition Event shall have occurred at such time; or


 


(ii) the
Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest
Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its
Loan) included in such Borrowing for such Interest Period;


 


then the Administrative Agent shall give
notice thereof to the Borrower and the Lenders through Electronic System as provided in Section 9.01 as promptly as practicable
thereafter and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such
notice no longer exist, (A) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of
any Borrowing as, a Eurodollar Borrowing shall be ineffective and any such Eurodollar Borrowing shall be repaid or converted into
an ABR Borrowing on the last day of the then current Interest Period applicable thereto, and (B) if any Borrowing Request requests
a Eurodollar Borrowing, such Borrowing shall be made as an ABR Borrowing.


 


(b) If any Lender determines
that any Requirement of Law has made it unlawful, or if any Governmental Authority has asserted that it is unlawful, for any Lender
or its applicable lending office to make, maintain, fund or continue any Eurodollar Borrowing, or any Governmental Authority has
imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, dollars in the London
interbank market, then, on notice thereof by such Lender to the Borrower through the Administrative Agent, any obligations of such
Lender to make, maintain, fund or continue Eurodollar Loans or to convert ABR Borrowings to Eurodollar Borrowings will be suspended
until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no
longer exist. Upon receipt of such notice, the Borrower will upon demand from such Lender (with a copy to the Administrative Agent),
either convert or prepay all Eurodollar Borrowings of such Lender to ABR Borrowings, either on the last day of the Interest Period
therefor, if such Lender may lawfully continue to maintain such Eurodollar Borrowings to such day, or immediately, if such Lender
may not lawfully continue to maintain such Loans. Upon any such conversion or prepayment, the Borrower will also pay accrued interest
on the amount so converted or prepaid.


 


(c) Notwithstanding anything
to the contrary herein or in any other Loan Document, upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election,
as applicable, the Administrative Agent and the Borrower may amend this Agreement to replace the LIBO Rate with a Benchmark Replacement.
Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. on the fifth (5th) Business
Day after the Administrative Agent has posted such proposed amendment to all Lenders and the Borrower, so long as the Administrative
Agent has not received, by such time, written notice of objection to such proposed amendment from Lenders comprising the Required
Lenders; provided that, with respect to any proposed amendment containing any SOFR-Based Rate, the Lenders shall be entitled to
object only to the Benchmark Replacement Adjustment contained therein. Any such amendment with respect to an Early Opt-in Election
will become effective on the date that Lenders comprising the Required Lenders have delivered to the Administrative Agent written
notice that such Required Lenders accept such amendment. No replacement of LIBO Rate with a Benchmark Replacement will occur prior
to the applicable Benchmark Transition Start Date.


 



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(d) In connection with
the implementation of a Benchmark Replacement, the Administrative Agent will have the right to make Benchmark Replacement Conforming
Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing
such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to
this Agreement.


 


(e) The Administrative
Agent will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event or an Early Opt-in
Election, as applicable, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement
Conforming Changes and (iv) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision
or election that may be made by the Administrative Agent or Lenders pursuant to this Section 2.12, including any determination
with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision
to take or refrain from taking any action, will be conclusive and binding absent manifest error and may be made in its or their
sole discretion and without consent from any other party hereto, except, in each case, as expressly required pursuant to this Section
2.12.


 


(f) Upon the Borrower’s
receipt of notice of the commencement of a Benchmark Unavailability Period, (i) any Interest Election Request that requests the
conversion of any Borrowing to, or continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective and any such Eurodollar
Borrowing shall be repaid or converted into an ABR Borrowing on the last day of the then current Interest Period applicable thereto,
and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such Borrowing shall be made as an ABR Borrowing.


 


SECTION 2.13. Increased
Costs. (a) If any Change in Law shall:


 


(i) impose,
modify or deem applicable any reserve, special deposit, liquidity or similar requirement (including any compulsory loan requirement,
insurance charge or other assessment) against assets of, deposits with or for the account of, or credit extended by, any Lender
(except any such reserve requirement reflected in the Adjusted LIBO Rate) or the Issuing Bank; or


 


(ii) impose
on any Lender or the Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) affecting
this Agreement or Loans made by such Lender or any Letter of Credit or participation therein; or


 


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


 


and the result of any of the foregoing
shall be to increase the cost to such Lender or such other Recipient of making, continuing, converting into or maintaining any
Loan (or of maintaining its obligation to make any such Loan) or to increase the cost to such Lender, the Issuing Bank or such
other Recipient of participating in, issuing or maintaining any Letter of Credit or to reduce the amount of any sum received or
receivable by such Lender, the Issuing Bank or such other Recipient hereunder (whether of principal, interest or otherwise), then
the Borrower will pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, such additional amount or amounts
as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, for such additional costs incurred
or reduction suffered.


 



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


 


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


 


(d) Failure or delay
on the part of any Lender or the Issuing Bank to demand compensation pursuant to this Section shall not constitute a waiver of
such Lender’s or the Issuing Bank’s right to demand such compensation; provided that the Borrower shall not
be required to compensate a Lender or the Issuing Bank pursuant to this Section for any increased costs or reductions incurred
more than 270 days prior to the date that such Lender or the Issuing Bank, as the case may be, notifies the Borrower of the Change
in Law giving rise to such increased costs or reductions and of such Lender’s or the Issuing Bank’s intention to claim
compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is
retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof.


 


SECTION 2.14. Break
Funding Payments. In the event of (a) the payment of any principal of any Eurodollar Loan other than on the last day of
an Interest Period applicable thereto (including as a result of an Event of Default or as a result of any prepayment pursuant
to Section 2.09), (b) the conversion of any Eurodollar Loan other than on the last day of the Interest Period applicable
thereto, (c) the failure to borrow, convert, continue or prepay any Eurodollar Loan on the date specified in any notice
delivered pursuant hereto (regardless of whether such notice may be revoked under Section 2.07(c) and is revoked in
accordance therewith), or (d) the assignment of any Eurodollar Loan other than on the last day of the Interest Period
applicable thereto as a result of a request by the Borrower pursuant to Section 2.17 or 9.02(d), then, in any such
event, the Borrower shall compensate each Lender for the loss, cost and expense attributable to such event. In the case of a
Eurodollar Loan, such loss, cost or expense to any Lender shall be deemed to include an amount determined by such Lender to
be the excess, if any, of (i) the amount of interest which would have accrued on the principal amount of such Eurodollar Loan
had such event not occurred, at the Adjusted LIBO Rate that would have been applicable to such Eurodollar Loan, for the
period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure
to borrow, convert or continue, for the period that would have been the Interest Period for such Eurodollar Loan), over (ii)
the amount of interest which would accrue on such principal amount for such period at the interest rate which such Lender
would bid were it to bid, at the commencement of such period, for dollar deposits of a comparable amount and period from
other banks in the eurodollar market. A certificate of any Lender setting forth any amount or amounts that such Lender is
entitled to receive pursuant to this Section shall be delivered to the Borrower and shall be conclusive absent manifest
error. The Borrower shall pay such Lender the amount shown as due on any such certificate within ten (10) days after receipt
thereof.


 



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SECTION 2.15.
Taxes.


 


(a) Withholding Taxes;
Gross-Up; Payments Free of Taxes. Any and all payments by or on account of any obligation of any Loan Party under any Loan
Document shall be made without deduction or withholding for any Taxes, except as required by applicable law. If any applicable
law (as determined in the good faith discretion of an applicable withholding agent) requires the deduction or withholding of any
Tax from any such payment by a withholding agent, then the applicable withholding agent shall be entitled to make such deduction
or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with
applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Loan Party shall be increased as
necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional
sums payable under this Section 2.15), the applicable Recipient receives an amount equal to the sum it would have received had
no such deduction or withholding been made.


 


(b) Payment of Other
Taxes by Loan Parties. The Loan Parties shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at
the option of the Administrative Agent timely reimburse it for, Other Taxes.


 


(c) Evidence of Payment.
As soon as practicable after any payment of Taxes any Loan Party to a Governmental Authority pursuant to this Section 2.15, such
Loan Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental
Authority evidencing such payment, a copy of the return reporting such payment, or other evidence of such payment reasonably satisfactory
to the Administrative Agent.


 


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


 


(e) Indemnification
by the Lenders. Each Lender shall severally indemnify the Administrative Agent, within ten (10) days after demand therefor,
for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that any Loan Party has not already indemnified
the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so), (ii) any
Taxes attributable to such Lender’s failure to comply with the provisions of Section 9.04(c) relating to the maintenance
of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the
Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto,
whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as
to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest
error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such
Lender under any Loan Document or otherwise payable by the Administrative Agent to such Lender from any other source against any
amount due to the Administrative Agent under this paragraph (e).


 



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(f) Status
of Lenders.


 


(i) Any Lender
that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall
deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative
Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will
permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably
requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably
requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether
or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary
in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set
forth in Section 2.15(f)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s reasonable judgment
such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially
prejudice the legal or commercial position of such Lender.


 


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


 


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


 


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


 


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


 


(2) in the
case of a Foreign Lender claiming that its extension of credit will generate U.S. effectively connected income, an executed copy
of IRS Form W-8ECI;


 



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


 


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


 


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


 


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


 



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


 


(g) Treatment of Certain
Refunds. If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes
as to which it has been indemnified pursuant to this Section 2.15 (including by the payment of additional amounts pursuant
to this Section 2.15), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity
payments made under this Section 2.15 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses
(including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority
with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified
party the amount paid over pursuant to this paragraph (g) (plus any penalties, interest or other charges imposed by the relevant
Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority.
Notwithstanding anything to the contrary in this paragraph (g), in no event will the indemnified party be required to pay any amount
to an indemnifying party pursuant to this paragraph (g) the payment of which would place the indemnified party in a less favorable
net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such
refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts giving rise
to such refund had never been paid. This paragraph (g) shall not be construed to require any indemnified party to make available
its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other
Person.


 


(h) Survival.
Each party’s obligations under this Section 2.15 shall survive the resignation or replacement of the Administrative
Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction
or discharge of all obligations under any Loan Document (including the Payment in Full of the Secured Obligations).


 


(i) Defined Terms.
For purposes of this Section 2.15, the term “Lender” includes any Issuing Bank and the term “applicable
law” includes FATCA.


 


SECTION 2.16.
Payments Generally; Allocation of Proceeds; Sharing of Set-offs.


 


(a) The Borrower shall
make each payment or prepayment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC
Disbursements, or of amounts payable under Sections 2.13, 2.14 or 2.15, or otherwise) prior to 2:00 p.m., eastern time, on the
date when due or the date fixed for any prepayment hereunder, in immediately available funds, without set-off, recoupment or counterclaim.
Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received
on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative
Agent pursuant to payment instructions provided by the Administrative Agent, except payments to be made directly to the Issuing
Bank as expressly provided herein and except that payments pursuant to Sections 2.13, 2.14, 2.15 and 9.03 shall be made directly
to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of
any other Person to the appropriate recipient promptly following receipt thereof. Unless otherwise provided for herein, if any
payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding
Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension.
All payments hereunder shall be made in dollars.


 



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(b) All payments and
any proceeds of Collateral received by the Administrative Agent (i) not constituting either (A) a specific payment of principal,
interest, fees or other sum payable under the Loan Documents (which shall be applied as specified by the Borrower), or (B) a mandatory
prepayment (which shall be applied in accordance with Section 2.09) or (ii) after an Event of Default has occurred and is continuing
and the Administrative Agent so elects or the Required Lenders so direct, shall be applied ratably first, to pay any fees,
indemnities, or expense reimbursements then due to the Administrative Agent and the Issuing Bank from the Borrower (other than
in connection with Banking Services Obligations or Swap Agreement Obligations), second, to pay any fees, indemnities, or
expense reimbursements then due to the Lenders from the Borrower (other than in connection with Banking Services Obligations or
Swap Agreement Obligations), third, to pay interest then due and payable on the Loans ratably, fourth, to prepay
principal on the Loans and unreimbursed LC Disbursements and to pay any amounts owing in respect of Swap Agreement Obligations
and Banking Services Obligations up to and including the amount most recently provided to the Administrative Agent pursuant to
Section 2.20, ratably, fifth, to pay an amount to the Administrative Agent equal to one hundred five percent (105%) of the
aggregate LC Exposure, to be held as cash collateral for such Obligations, and sixth, to the payment of any other Secured
Obligation due to the Administrative Agent or any Lender from the Borrower or any other Loan Party. Notwithstanding anything
to the contrary contained in this Agreement, unless so directed by the Borrower, or unless a Default is in existence, neither the
Administrative Agent nor any Lender shall apply any payment which it receives to any Eurodollar Loan, except (i) on the expiration
date of the Interest Period applicable thereto, or (ii) in the event, and only to the extent, that there are no outstanding ABR
Loans and, in any such event, the Borrower shall pay the break funding payment required in accordance with Section 2.14. The Administrative
Agent and the Lenders shall have the continuing and exclusive right to apply and reverse and reapply any and all such proceeds
and payments to any portion of the Secured Obligations.


 


Notwithstanding the
foregoing, Secured Obligations arising under Banking Services Obligations or Swap Agreement Obligations shall be excluded from
the application described above and paid in clause sixth if the Administrative Agent has not received written notice thereof,
together with such supporting documentation as the Administrative Agent may have reasonably requested from the applicable provider
of such Banking Services or Swap Agreements.


 


(c) At the election of
the Administrative Agent, all payments of principal, interest, LC Disbursements, fees, premiums, reimbursable expenses (including,
without limitation, all reimbursement for fees, costs and expenses pursuant to Section 9.03), and other sums payable under the
Loan Documents, may be paid from the proceeds of Borrowings made hereunder, whether made following a request by the Borrower pursuant
to Section 2.03 or a deemed request as provided in this Section or may be deducted from any deposit account of the Borrower maintained
with the Administrative Agent. The Borrower hereby irrevocably authorizes (i) the Administrative Agent to make a Borrowing for
the purpose of paying each payment of principal, interest and fees as it becomes due hereunder or any other amount due under the
Loan Documents and agrees that all such amounts charged shall constitute Loans, and that all such Borrowings shall be deemed to
have been requested pursuant to Sections 2.03, and (ii) the Administrative Agent to charge any deposit account of the Borrower
maintained with the Administrative Agent for each payment of principal, interest and fees as it becomes due hereunder or any other
amount due under the Loan Documents.


 



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(d) If, except as otherwise
expressly provided herein, any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in
respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving
payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest
thereon than the proportion received by any other similarly situated Lender, then the Lender receiving such greater proportion
shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to
the extent necessary so that the benefit of all such payments shall be shared by all such Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided
that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such
participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance
with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment or sale of a participation
in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary
or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees,
to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as
if such Lender were a direct creditor of the Borrower in the amount of such participation.


 


(e) Unless the Administrative
Agent shall have received, prior to any date on which any payment is due to the Administrative Agent for the account of the Lenders
or the Issuing Bank pursuant to the terms hereof or any other Loan Document (including any date that is fixed for prepayment by
notice from the Borrower to the Administrative Agent pursuant to Section 2.09), notice from the Borrower that the Borrower will
not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith
and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be, the amount due. In
such event, if the Borrower has not in fact made such payment, then each of the Lenders or the Issuing Bank, as the case may be,
severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank
with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment
to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation.


 


(f) The Administrative
Agent may from time to time provide the Borrower with account statements or invoices with respect to any of the Secured Obligations
(the “Statements”). The Administrative Agent is under no duty or obligation to provide Statements, which, if
provided, will be solely for the Borrower’s convenience. Statements may contain estimates of the amounts owed during the
relevant billing period, whether of principal, interest, fees or other Secured Obligations. If the Borrower pays the full amount
indicated on a Statement on or before the due date indicated on such Statement, the Borrower shall not be in default of payment
with respect to the billing period indicated on such Statement; provided, that acceptance by the Administrative Agent, on
behalf of the Lenders, of any payment that is less than the total amount actually due at that time (including but not limited to
any past due amounts) shall not constitute a waiver of the Administrative Agent’s or the Lenders’ right to receive
payment in full at another time.


 


SECTION 2.17.
Mitigation Obligations; Replacement of Lenders


 


(a) If any Lender requests
compensation under Section 2.13, or if the Borrower is required to pay any Indemnified Taxes or additional amounts to any
Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.15, then such Lender shall use commercially
reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or
assignment (i) would eliminate or reduce amounts payable pursuant to Sections 2.13 or 2.15, as the case may be, in the future and
(ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender.
The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation
or assignment.


 



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(b) If any Lender requests
compensation under Section 2.13, or if the Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender
or any Governmental Authority for the account of any Lender pursuant to Section 2.15, or if any Lender becomes a Defaulting Lender,
then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender
to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 9.04), all
its interests, rights (other than its existing rights to payments pursuant to Sections 2.13 or 2.15) and obligations under this
Agreement and other Loan Documents to an assignee that shall assume such obligations (which assignee may be another Lender, if
a Lender accepts such assignment); provided that (i) the Borrower shall have received the prior written consent of the Administrative
Agent (and in circumstances where its consent would be required under Section 9.04, the Issuing Bank), which consent shall not
unreasonably be withheld, (ii) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans
and funded participations in LC Disbursements, accrued interest thereon, accrued fees and all other amounts payable to it hereunder,
from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all
other amounts) and (iii) in the case of any such assignment resulting from a claim for compensation under Section 2.13
or payments required to be made pursuant to Section 2.15, such assignment will result in a reduction in such compensation
or payments. A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver
by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.


 


SECTION
2.18. Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes
a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:


 


(a)
fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section
2.10(a);


 


(b)
such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent
expressly provided in Section 9.02(b)) and the Commitment and Revolving Exposure of such Defaulting Lender shall not be included
in determining whether the Required Lenders have taken or may take any action hereunder or under any other Loan Document; provided
that, except as otherwise provided in Section 9.02, this clause (b) shall not apply to the vote of a Defaulting Lender in the case
of an amendment, waiver or other modification requiring the consent of such Lender or each Lender directly affected thereby;


 


(c)
if any LC Exposure exists at the time such Lender becomes a Defaulting Lender then:


 


(i)
all or any part of the LC Exposure of such Defaulting Lender shall be reallocated among the Non-Defaulting Lenders in accordance
with their respective Applicable Percentages but only (x) to the extent that the conditions set forth in Section 4.02 are satisfied
at the time of such reallocation (and, unless the Borrower shall have otherwise notified the Administrative Agent at such time,
the Borrower shall be deemed to have represented and warranted that such conditions are satisfied at such time) and (y) to the
extent that such reallocation does not, as to any Non-Defaulting Lender, cause such Non-Defaulting Lender’s
Revolving Exposure to exceed its Revolving Commitment;


 




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(ii) if the
reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one (1) Business
Day following notice by the Administrative Agent cash collateralize, for the benefit of the Issuing Bank, the Borrower’s
obligations corresponding to such Defaulting Lender’s LC Exposure (after giving
effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(j)
for so long as such LC Exposure is outstanding;


 


(iii) if
the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure
pursuant to clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section
2.10(b) with respect to such Defaulting Lender’s LC Exposure during the period such
Defaulting Lender’s LC Exposure is cash collateralized;


 


(iv) if the
LC Exposure of the Non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant
to Sections 2.10(a) and 2.10(b) shall be adjusted in accordance with such Non-Defaulting Lenders’
Applicable Percentages; and


 


(v) if all
or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor
cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Issuing Bank
or any other Lender hereunder, all letter of credit fees payable under Section 2.10(b) with respect to such Defaulting Lender’s
LC Exposure shall be payable to the Issuing Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized;
and


 


(d)
so long as such Lender is a Defaulting Lender, the Issuing Bank shall not be required to issue, amend, renew, extend or
increase any Letter of Credit, unless it is satisfied that the related exposure and such Defaulting Lender’s
then outstanding LC Exposure will be 100% covered by the Commitments of the Non-Defaulting Lenders and/or cash collateral will
be provided by the Borrower in accordance with Section 2.18(c), and the LC Exposure related to any newly issued or increased Letter
of Credit shall be allocated among Non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i) (and such Defaulting Lender
shall not participate therein).


 


If (i) a Bankruptcy
Event or a Bail-In Action with respect to the Parent of any Lender shall occur following the date hereof and for so long as such
event shall continue or (ii) the Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations
under one or more other agreements in which such Lender commits to extend credit, the Issuing Bank shall not be required to issue,
amend or increase any Letter of Credit, unless the Issuing Bank shall have entered into arrangements with the Borrower or such
Lender, satisfactory to the Issuing Bank, to defease any risk to it in respect of such Lender hereunder.


 


In the event that each
of the Administrative Agent, the Borrower and the Issuing Bank agrees that a Defaulting Lender has adequately remedied all matters
that caused such Lender to be a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion
of such Lender’s Revolving Commitment and on the date of such readjustment such
Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary
in order for such Lender to hold such Loans in accordance with its Applicable Percentage.


 




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SECTION 2.19. Returned
Payments. If, after receipt of any payment which is applied to the payment of all or any part of the Obligations (including
a payment effected through exercise of a right of setoff), the Administrative Agent or any Lender is for any reason compelled to
surrender such payment or proceeds to any Person because such payment or application of proceeds is invalidated, declared fraudulent,
set aside, determined to be void or voidable as a preference, impermissible setoff, or a diversion of trust funds, or for any other
reason (including pursuant to any settlement entered into by the Administrative Agent or such Lender in its discretion), then the
Obligations or part thereof intended to be satisfied shall be revived and continued and this Agreement shall continue in full force
as if such payment or proceeds had not been received by the Administrative Agent or such Lender. The provisions of this Section
2.19 shall be and remain effective notwithstanding any contrary action which may have been taken by the Administrative Agent or
any Lender in reliance upon such payment or application of proceeds. The provisions of this Section 2.19 shall survive the termination
of this Agreement.


 


SECTION 2.20. Banking
Services and Swap Agreements. Each Lender or Affiliate thereof providing Banking Services for, or having Swap Agreements with,
any Loan Party or any Subsidiary or Affiliate of a Loan Party shall deliver to the Administrative Agent, promptly after entering
into such Banking Services or Swap Agreements, written notice setting forth the aggregate amount of all Banking Services Obligations
and Swap Agreement Obligations of such Loan Party or Subsidiary or Affiliate thereof to such Lender or Affiliate (whether matured
or unmatured, absolute or contingent). In furtherance of that requirement, each such Lender or Affiliate thereof shall furnish
the Administrative Agent, from time to time after a significant change therein or upon a request therefor, a summary of the amounts
due or to become due in respect of such Banking Services Obligations and Swap Agreement Obligations. The most recent information
provided to the Administrative Agent shall be used in determining which tier of the waterfall, contained in Section 2.16(b), such
Banking Services Obligations and/or Swap Agreement Obligations will be placed.


 


ARTICLE III


 


Representations and
Warranties


 


Each Loan Party represents
and warrants to the Lenders that (and where applicable, agrees):


 


SECTION 3.01. Financial
Condition.


 


(a) (i) The audited Consolidated
and consolidating financial statements of the Borrower and its Subsidiaries for the fiscal years ended 2017, 2018 and 2019 as set
forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended December 29, 2019 filed with the SEC and (ii)
a pro forma balance sheet of the Borrower and its Subsidiaries as of December 29, 2019:


 


(A) with respect
to clause (a)(i) above, were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except
as otherwise expressly noted therein; and


 


(B) with respect
to clause (a)(i) above, fairly present, in all material respects, the financial condition of the Borrower and its Subsidiaries
as of the date thereof (subject, in the case of the unaudited financial statements, to normal year-end adjustments) and results
of operations for the period covered thereby.


 


(b) The five-year projections
of the Loan Parties and their Subsidiaries (prepared annually for the term of this Agreement) delivered to the Lenders on or prior
to the Effective Date have been prepared in good faith based upon reasonable assumptions (i) in light of then existing conditions
and (ii) of future results of operations which may or may not in fact occur and no assurance can be given that such results will
be achieved.


 




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SECTION 3.02. No
Material Adverse Effect. Since December 30, 2019 (and, in addition, after (x) any subsequent public disclosure by the
Borrower made after December 30, 2019 and prior to the Second Amendment Effective Date and (y) delivery of annual audited
financial statements in accordance with Section 5.01(a), from the date of the most recently delivered annual audited financial
statements), there has been no development or event which has had or could reasonably be expected to have a Material Adverse Effect.


 


SECTION 3.03. Corporate
Existence; Compliance with Law; Patriot Act Information. Each of the Loan Parties (a) is duly organized, validly existing and
in good standing under the laws of the jurisdiction of its incorporation, organization or formation, (b) has the requisite
corporate, limited liability company or partnership power and authority and the legal right to own and operate all its property,
to lease the property it operates as lessee and to conduct the business in which it is currently engaged and has taken all actions
necessary to maintain all rights, privileges, licenses and franchises necessary or required in the normal conduct of its business
except where the failure to take any such action could not reasonably be expected to have a Material Adverse Effect, (c) is
duly qualified to conduct business and in good standing under the laws of (i) the jurisdiction of its organization or formation,
(ii) the jurisdiction where its chief executive office is located and (iii) each other jurisdiction where its ownership,
lease or operation of property or the conduct of its business requires such qualification except to the extent that the failure
to so qualify or be in good standing in any such other jurisdiction could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect and (d) is in compliance with all applicable Requirements of Law, organizational
documents, government permits and government licenses except to the extent such non-compliance could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. Set forth on Schedule 3.03 as of the Second Amendment
Effective Date, or as of the last date such Schedule was required to be updated in accordance with Section 5.02, is the following
information for each Loan Party: the exact legal name and any former legal names of such Loan Party in the four (4) months prior
to the Second Amendment Effective Date, the state of incorporation or organization, the type of organization, the jurisdictions
in which such Loan Party is qualified to do business, the chief executive office, the principal place of business, the business
phone number, the organization identification number, the federal tax identification number and ownership information (e.g. publicly
held, if private or partnership, the owners and partners of each of the Loan Parties).


 


SECTION 3.04. Corporate
Power; Authorization; Enforceable Obligations. Each of the Loan Parties has full corporate, partnership or limited liability
company power and authority and the legal right to make, deliver and perform the Loan Documents to which it is party and has taken
all necessary limited liability company, partnership or corporate action to authorize the execution, delivery and performance by
it of the Loan Documents to which it is party. Each Loan Document to which it is a party has been duly executed and delivered on
behalf of each Loan Party. Each Loan Document to which it is a party constitutes a legal, valid and binding obligation of each
Loan Party, enforceable against such Loan Party in accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally
and by general equitable principles (whether enforcement is sought by proceedings in equity or at law).


 


SECTION 3.05. No
Legal Bar; No Default. The execution, delivery and performance by each Loan Party of the Loan Documents to which such Loan
Party is a party, the borrowings thereunder and the use of the proceeds of the Revolving Loans (a) will not violate any applicable
Requirement of Law of any Loan Party (except those as to which waivers or consents have been obtained), (b) will not conflict with,
result in a breach of or constitute a default under the articles of incorporation, bylaws, articles of organization, operating
agreement or other organization documents of the Loan Parties or any Material Contract to which such Person is a party or by which
any of its properties may be bound or any material approval or material consent from any Governmental Authority relating to such
Person, and (c) will not result in, or require, the creation or imposition of any Lien on any Loan Party’s properties or
revenues pursuant to any Requirement of Law or Contractual Obligation other than the Liens arising under or contemplated in connection
with the Loan Documents or Permitted Liens. No Loan Party is in default under or with respect to any of its Contractual Obligations
except where such default could not reasonably be expected to have a Material Adverse Effect.


 






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SECTION 3.06. No
Material Litigation. No litigation, investigation, claim, criminal prosecution, civil investigative demand, imposition of criminal
or civil fines and penalties, or any other proceeding of or before any arbitrator or Governmental Authority is pending or, to the
best knowledge of the Loan Parties, threatened by or against any Loan Party or any of its Subsidiaries or against any of its or
their respective properties or revenues (a) with respect to the Loan Documents, any Extension of Credit or any of the Transactions,
or (b) which, if adversely determined, could reasonably be expected to have a Material Adverse Effect. No permanent injunction,
temporary restraining order or similar decree has been issued against any Loan Party or any of its Subsidiaries which could reasonably
be expected to have a Material Adverse Effect.


 


SECTION 3.07. Investment
Company Act; etc. No Loan Party is an “investment company”, or a company “controlled” by an “investment
company”, within the meaning of the Investment Company Act of 1940, as amended. No Loan Party is subject to regulation limiting
its ability to incur Secured Obligations.


 


SECTION 3.08. Margin
Regulations. No part of the proceeds of any Extension of Credit hereunder will be used directly or indirectly for any purpose
that violates, or that would require any Lender to make any filings in accordance with, the provisions of Regulation T, U or X
of the Board of Governors of the Federal Reserve System as now and from time to time hereafter in effect. The Loan Parties and
their Subsidiaries (a) are not engaged, principally or as one of their important activities, in the business of extending credit
for the purpose of “purchasing” or “carrying” “margin stock” within the respective meanings
of each of such terms under Regulation U and (b) taken as a group do not own “margin stock” except as identified in
the financial statements referred to in Section 3.01 or delivered pursuant to Section 5.01 and the aggregate value of all
“margin stock” owned by the Loan Parties and their Subsidiaries taken as a group does not exceed 25% of the value of
their assets.


 


SECTION 3.09. ERISA.
No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events for which
liability is reasonably expected to occur, could reasonably be expected to result in a Material Adverse Effect. The present value
of all accumulated benefit obligations under each Plan (based on the assumptions used for purposes of Statement of Financial Accounting
Standards No. 87) did not, as of the date of the most recent financial statements reflecting such amounts, exceed the fair
market value of the assets of such Plan.


 


SECTION 3.10. Environmental
Matters. Except as could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect:


 


(a) The facilities and
properties owned, leased or operated by the Loan Parties or any of their Subsidiaries (the “Properties”) do
not contain any Materials of Environmental Concern in amounts or concentrations which (i) constitute a violation of, or (ii) could
give rise to liability on behalf of any Loan Party under, any Environmental Law.


 


(b) The Properties and
all operations of the Loan Parties and/or their Subsidiaries at the Properties are in compliance, and have in the last five years
been in compliance, with all applicable Environmental Laws, and there is no contamination at, under or about the Properties or
violation of any Environmental Law with respect to the Properties or the business operated by the Loan Parties or any of their
Subsidiaries (the “Business”).


 






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(c) Neither the Loan
Parties nor their Subsidiaries have received any written or actual notice of violation, alleged violation, non-compliance, liability
or potential liability on behalf of any Loan Party with respect to environmental matters or Environmental Laws regarding any of
the Properties or the Business, nor do the Loan Parties or their Subsidiaries have knowledge or reason to believe that any such
notice will be received or is being threatened.


 


(d) Materials of Environmental
Concern have not been transported or disposed of from the Properties in violation of, or in a manner or to a location that could
give rise to liability on behalf of any Loan Party under any Environmental Law, and no Materials of Environmental Concern have
been generated, treated, stored or disposed of at, on or under any of the Properties in violation of, or in a manner that could
give rise to liability on behalf of any Loan Party under, any applicable Environmental Law.


 


(e) No judicial proceeding
or governmental or administrative action is pending or, to the knowledge of the Loan Parties and their Subsidiaries, threatened,
under any Environmental Law to which any Loan Party or any Subsidiary is or will be named as a party with respect to the Properties
or the Business, nor are there any consent decrees or other decrees, consent orders, administrative orders or other orders, or
other administrative or judicial requirements outstanding under any Environmental Law with respect to the Properties or the Business.


 


(f) There has been no
release or threat of release of Materials of Environmental Concern at or from the Properties, or arising from or related to the
operations of any Loan Party or any Subsidiary in connection with the Properties or otherwise in connection with the Business,
in violation of or in amounts or in a manner that could give rise to liability on behalf of any Loan Party under Environmental
Laws.


 


SECTION 3.11. Use
of Proceeds. The proceeds of the Loans have been used and will be used, whether directly or indirectly as set forth in Section
5.08.


 


SECTION 3.12. Subsidiaries;
Joint Ventures; Partnerships. Set forth on Schedule 3.12 is a complete and accurate list of all Subsidiaries, joint
ventures and partnerships of the Loan Parties. Each direct and indirect Subsidiary, other than the Excluded Subsidiary, of the
Company is a Loan Party, Loan Guarantor and grantor under the Security Agreement. Information on the attached Schedule includes
the following: (a) the number of shares of each class of Equity Interests of each Subsidiary outstanding and (b) the number and
percentage of outstanding shares of each class of Equity Interests owned by the Loan Parties and their Subsidiaries. The outstanding
Equity Interests of all such Subsidiaries are validly issued, fully paid and non-assessable and are owned free and clear of all
Liens (other than those arising under or contemplated in connection with the Loan Documents). There are no outstanding subscriptions,
options, warrants, calls, rights or other agreements or commitments (other than stock options or restricted stock granted to employees
or directors and directors’ qualifying shares) of any nature relating to any Equity Interests of any Loan Party or any Subsidiary
thereof, except as contemplated in connection with the Loan Documents.


 


SECTION 3.13. Ownership.
Each of the Loan Parties and its Subsidiaries is the owner of, and has good and marketable title to or a valid leasehold interest
in, all of its respective assets, which, together with assets leased or licensed by the Loan Parties and their Subsidiaries, represents
all assets in the aggregate material to the conduct of the business of the Loan Parties and their Subsidiaries. Each Loan Party
and its Subsidiaries enjoys peaceful and undisturbed possession under all of its leases and all such leases are valid and subsisting
and in full force and effect except as could not reasonably be expected to have a Material Adverse Effect.


 






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SECTION 3.14. Consent;
Governmental Authorizations. No approval, consent or authorization of, filing with, notice to or other act by or in respect
of, any Governmental Authority or any other Person is required in connection with acceptance of Extensions of Credit by the Borrower
or the making of the Loan Guaranty hereunder or with the execution, delivery or performance of any Loan Document by the Loan Parties
(other than those which have been obtained) or with the validity or enforceability of any Loan Document against the Loan Parties
(except such filings as are necessary in connection with the perfection of the Liens created by such Loan Documents).


 


SECTION 3.15. Taxes.
Each of the Loan Parties and its Subsidiaries has filed, or caused to be filed, all federal income tax returns and all other material
tax returns (federal, state, local and foreign) required to be filed and paid (a) all amounts of taxes shown thereon to be due
(including interest and penalties) and (b) all other material taxes, fees, assessments and other governmental charges (including
mortgage recording taxes, documentary stamp taxes and intangibles taxes) owing by it, except for such taxes (i) that are not yet
delinquent or (ii) that are being contested in good faith and by proper proceedings, and against which adequate reserves are being
maintained in accordance with GAAP. None of the Loan Parties or their Subsidiaries has received written notice as of the Second
Amendment Effective Date of any material tax assessments against it or any of its Subsidiaries.


 


SECTION 3.16. Collateral
Representations.


 


(a) Intellectual Property.
Set forth on Schedule 3.16(a), as of the Second Amendment Effective Date and as of the last date such Schedule was required
to be updated in accordance with Section 5.02, is a list of all registered or issued Intellectual Property (including all applications
for registration and issuance) owned by each of the Loan Parties or that each of the Loan Parties has the right to (including the
name/title, current owner, registration or application number, and registration or application date and such other information
as reasonably requested by the Administrative Agent).


 


(b) Documents, Instrument,
and Tangible Chattel Paper. Set forth on Schedule 3.16(b), as of the Second Amendment Effective Date and as of the last
date such Schedule was required to be updated in accordance with Section 5.02, is a description of all Documents (as defined in
the UCC), Instruments (as defined in the UCC), and Tangible Chattel Paper (as defined in the UCC) of the Loan Parties (including
the Loan Party owning such Document, Instrument and Tangible Chattel Paper and such other information as reasonably requested by
the Administrative Agent), in each case to the extent with a value in excess of $100,000.


 


(c) Commercial Tort
Claims. Set forth on Schedule 3.16(c), as of the Second Amendment Effective Date and as of the last date such Schedule
was required to be updated in accordance with Section 5.02, is a description of all Commercial Tort Claims (as defined in the UCC)
of the Loan Parties (detailing such Commercial Tort Claim in such detail as reasonably requested by the Administrative Agent).


 


(d) Pledged Equity
Interests. Set forth on Schedule 3.16(d), as of the Second Amendment Effective Date and as of the last date such Schedule
was required to be updated in accordance with Section 5.02, is a list of (i) 100% (or, if less, the full amount owned by such Loan
Party) of the issued and outstanding Equity Interests owned by such Loan Party of each Domestic Subsidiary (other than the Excluded
Subsidiary), (ii) 66% (or, if less, the full amount owned by such Loan Party) of each class of the issued and outstanding Equity
Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% (or, if less, the full amount owned
by such pledgor) of each class of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas.
Reg. Section 1.956-2(c)(2)) owned by such Loan Party of each first-tier Foreign Subsidiary and (iii) all other Equity Interests
required to be pledged to the Administrative Agent pursuant to the Collateral Documents.


 






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(e) Properties.
Set forth on Schedule 3.16(e) is a list of (i) each headquarter location of the Loan Parties (and an indication if such
location is leased or owned) and (ii) each other location where any significant administrative functions are performed (and an
indication if such location is leased or owned).


 


SECTION 3.17. Solvency.
The Loan Parties taken as a whole are solvent and are able to pay their debts and other liabilities, contingent obligations and
other commitments as they mature in the normal course of business, and the fair saleable value of the Loan Parties assets, taken
as a whole and measured on a going concern basis, exceeds all probable liabilities, including those to be incurred pursuant to
this Agreement. The Loan Parties taken as a whole do not have unreasonably small capital in relation to the business in which they
are or propose to be engaged. The Loan Parties taken as a whole have not incurred, or believe that they will incur debts beyond
its ability to pay such debts as they become due. In executing the Loan Documents and consummating the Transactions, none of the
Loan Parties intends to hinder, delay or defraud either present or future creditors or other Persons to which one or more of the
Loan Parties is or will become indebted. On the Second Amendment Effective Date, the foregoing representations and warranties shall
be made both before and after giving effect to the Transactions.


 


SECTION 3.18. Brokers’
Fees. None of the Loan Parties or their Subsidiaries has any obligation to any Person in respect of any finder’s, broker’s,
investment banking or other similar fee in connection with any of the Transactions, the closing and other fees payable pursuant
to this Agreement and as set forth in any fee letter.


 


SECTION 3.19. Labor
Matters. Except as could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, (a)
there are no collective bargaining agreements or Multiemployer Plans covering the employees of the Loan Parties or any of their
Subsidiaries as of the Second Amendment Effective Date and none of the Loan Parties or their Subsidiaries (i) has suffered any
strikes, walkouts, work stoppages or other material labor difficulty within the last five years or (ii) has knowledge of any potential
or pending strike, walkout or work stoppage, (b) no unfair labor practice complaint is pending against any Loan Party or any of
its Subsidiaries and (c) there are no strikes, walkouts, work stoppages or other material labor difficulty pending or threatened
against any Loan Party.


 


SECTION 3.20. Accuracy
and Completeness of Information.


 


(a) No representation
or warranty made by the Borrower or any other Loan Party in any Loan Document or in any document, instrument or other writing furnished
to the Lenders by or on behalf of any Loan Party in connection with the transactions contemplated in any Loan Document does or
will contain any untrue material statement of fact or will omit to state any such fact (of which any executive officer of any Loan
Party has knowledge) necessary to make the representations, warranties and other statements contained herein or in such other document,
instrument or writing not misleading in any material respect.


 


(b) As of the Second
Amendment Effective Date, to the best knowledge of the Borrower, the information included in the Beneficial Ownership Certification
provided on or prior to the Effective Date to any Lender in connection with this Agreement is true and correct in all respects.


 






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SECTION 3.21. Anti-Corruption
Laws and Sanctions. Each Loan Party has implemented and maintains in effect policies and procedures designed to ensure compliance
by such Loan Party, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws,
including, but not limited to with the Foreign Corrupt Practices Act, 15 U.S.C. §§ 78dd-1, et seq., and any
foreign counterpart thereto, and applicable Sanctions, and such Loan Party, its Subsidiaries and their respective officers and
directors and, to the knowledge of such Loan Party, its employees and agents, are in compliance with Anti-Corruption Laws and applicable
Sanctions in all material respects and are not knowingly engaged in any activity that would reasonably be expected to result in
any Loan Party being designated as a Sanctioned Person. None of (a) any Loan Party, any Subsidiary or any of their respective directors,
officers or employees, or (b) to the knowledge of any such Loan Party or Subsidiary, any agent of such Loan Party or any Subsidiary
that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person.
No Borrowing or Letter of Credit, use of proceeds, Transaction or other transaction contemplated by this Agreement or the other
Loan Documents will violate Anti-Corruption Laws or applicable Sanctions. None of the Loan Parties or their Subsidiaries has made
a payment, offering, or promise to pay, or authorized the payment of, money or anything of value (a) in order to assist in obtaining
or retaining business for or with, or directing business to, any foreign official, foreign political party, party official or candidate
for foreign political office, (b) to a foreign official, foreign political party or party official or any candidate for foreign
political office, and (c) with the intent to induce the recipient to misuse his or her official position to direct business wrongfully
to such Loan Party or its Subsidiary or to any other Person, in violation of the Foreign Corrupt Practices Act, 15 U.S.C. §§
78dd-1, et seq.


 


SECTION 3.22. Material
Contracts. Schedule 3.22 sets forth a complete and accurate list of all Material Contracts of the Loan Parties and their
Subsidiaries in effect as of the Second Amendment Effective Date and as of the last date such Schedule was required to be updated
in accordance with Section 5.02. Each Material Contract is, and after giving effect to the Transactions will be, in full force
and effect in accordance with the terms thereof.


 


SECTION 3.23. Insurance.
The insurance coverage of the Loan Parties and their Subsidiaries is outlined as to carrier, policy number, expiration date, type
and amount on Schedule 3.23 as of the Second Amendment Effective Date and as of the last date such Schedule was required
to be updated in accordance with Section 5.02 and such insurance coverage complies in all material respects with the requirements
set forth in Section 5.05(b).


 


SECTION 3.24. Collateral
Documents. The Collateral Documents create valid and enforceable security interests in, and Liens on, the Collateral purported
to be covered thereby. Except as set forth in the Collateral Documents, such security interests and Liens are currently (or will
be, upon (a) the filing of appropriate financing statements with the Secretary of State of the state of incorporation or organization
for each Loan Party and the filing of appropriate assignments or notices with the United States Patent and Trademark Office and
the United States Copyright Office, in each case in favor of the Administrative Agent, on behalf of the Lenders, and (b) the Administrative
Agent obtaining control or possession over those items of Collateral in which a security interest is perfected through control
or possession) perfected security interests and Liens in favor of the Administrative Agent, for the benefit of the Secured Parties,
prior to all other Liens other than Permitted Liens other than with respect to any of the Loan Parties’ deposit accounts,
commodities accounts and securities accounts as to which no deposit account control agreement, commodities account control agreement
and securities account control agreement, respectively, are required to be executed and delivered.


 


SECTION 3.25. Classification
of Senior Indebtedness. The Secured Obligations constitute “Senior Indebtedness”, “Designated Senior Indebtedness”
or any similar designation under and as defined in any agreement governing any other Indebtedness and all subordination provisions
set forth in any such agreement (if any) are legally valid and enforceable against the parties thereto.


 






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SECTION 3.26. Anti-Terrorism
Laws. Neither any Loan Party nor any of its Subsidiaries is an “enemy” or an “ally of the enemy” within
the meaning of Section 2 of the Trading with the Enemy Act of the United States of America (50 U.S.C. App. §§ 1 et
seq.) (the “Trading with the Enemy Act”), as amended. Neither any Loan Party nor any of its Subsidiaries
is in violation of (a) the Trading with the Enemy Act, as amended, (b) any of the foreign assets control regulations of the United
States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating
thereto or (c) the Patriot Act. None of the Loan Parties (i) is a blocked person described in Section 1 of the Anti-Terrorism Order
or (ii) to the best of its knowledge, engages in any dealings or transactions, or is otherwise associated, with any such blocked
person.


 


SECTION 3.27. Authorized
Officer. Set forth on Schedule 3.27 are Responsible Officers that are permitted to sign Loan Documents on behalf of
the Loan Parties, holding the offices indicated next to their respective names, as of the Second Amendment Effective Date and as
of the last date such Schedule was required to be updated in accordance with Section 5.02. Such Authorized Officers are the duly
elected and qualified officers of such Loan Party and are duly authorized to execute and deliver, on behalf of the respective Loan
Party, the Credit Agreement, the Revolving Loan Notes and the other Loan Documents.


 


SECTION 3.28. EEA
Financial Institutions. No Loan Party is an EEA Financial Institution.


 


SECTION 3.29. Existing
Indebtedness, Liens and Investments. Set forth on Schedule 3.29 is a list (in detail acceptable to the Administrative
Agent) of:


 


(a) (i) all Indebtedness
of the Loan Parties and their Subsidiaries existing as of the Second Amendment Effective Date and (ii) any updates to the
list of Indebtedness referred to in the preceding clause (i) since (x) the Second Amendment Effective Date or (y) the
last date such Schedule was required to be updated in accordance with Section 5.02, except for any of the Secured Obligations;


 


(b) (i) all Liens
existing as of the Second Amendment Effective Date and any changes since the Second Amendment Effective Date and (ii) any
updates to the list of Liens referred to in the preceding clause (i) since (x) the Second Amendment Effective Date or (y) the
last date such Schedule was required to be updated in accordance with Section 5.02, except for Permitted Liens (including Liens
described on Schedule 1.01(b)) and Liens created by or otherwise existing under or in connection with this Agreement or the other
Loan Documents in favor of the Administrative Agent on behalf of the Secured Parties; and


 


(c) (i) all Investments
existing as of the Second Amendment Effective Date and (ii) any updates to the list of Investments referred to in the preceding
clause (i) since (x) the Second Amendment Effective Date or (y) the last date such Schedule was required to be updated
in accordance with Section 5.02.


 


SECTION 3.30. Plan
Assets; Prohibited Transactions. None of the Loan Parties or any of their Subsidiaries is an entity deemed to hold “plan
assets” (within the meaning of the Plan Asset Regulations), and neither the execution, delivery nor performance of the transactions
contemplated under this Agreement, including the making of any Loan and the issuance of any Letter of Credit hereunder, will give
rise to a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code.


 






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ARTICLE IV


 


Conditions


 


SECTION 4.01. Effective
Date. The obligations of the Lenders to make Loans and of the Issuing Bank to issue Letters of Credit hereunder shall not become
effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.02):


 


(a) Credit Agreement
and Loan Documents. The Administrative Agent (or its counsel, Winstead PC) shall have received (i) from each party hereto either
(A) a counterpart of this Agreement signed on behalf of such party or (B) written evidence satisfactory to the Administrative
Agent (which may include fax or other electronic transmission of a signed signature page of this Agreement) that such party has
signed a counterpart of this Agreement and (ii) duly executed copies of the Loan Documents and such other certificates, documents,
instruments and agreements as the Administrative Agent shall reasonably request in connection with the transactions contemplated
by this Agreement and the other Loan Documents, including any promissory notes requested by a Lender pursuant to Section 2.08 payable
to the order of each such requesting Lender and a written opinion of the Loan Parties’ counsel (including the opinion of
the Loan Parties’ Associate Counsel), addressed to the Administrative Agent, the Issuing Bank and the Lenders in substantially
the form of Exhibit B or any other form approved by the Administrative Agent (which shall include, without limitation, opinions
with respect to the due organization and valid existence of each Loan Party, opinions as to perfection of certain of the Liens
granted to the Administrative Agent pursuant to the Collateral Documents and opinions as to the non-contravention of the Loan Parties’
organizational documents and Material Contracts), each of which shall be in form and substance satisfactory to the Administrative
Agent.


 


(b) Financial Statements.
The Administrative Agent and the Lenders shall have received copies of the financial statements referred to in Section 3.01, each
in form and substance reasonably satisfactory to each of them.


 


(c) Closing Certificates;
Certified Certificate of Incorporation or Formation; Good Standing Certificates. The Administrative Agent shall have received
(i) a certificate, in form and substance satisfactory to the Administrative Agent, of each Loan Party, dated the Effective
Date and executed by its Secretary or Assistant Secretary or, in the case of any Subsidiary that is a partnership or limited liability
company, its general partner, manager or member, which shall (A) certify the resolutions of its Board of Directors, members
or other body authorizing the execution, delivery and performance of the Loan Documents to which it is a party, (B) identify
by name and title and bear the signatures of the officers of such Loan Party or its manager or member, as applicable, authorized
to sign the Loan Documents to which it is a party and, in the case of the Borrower, its Financial Officers, and (C) contain
appropriate attachments, including the charter, articles or certificate of organization or incorporation of each Loan Party certified
by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating,
management or partnership agreement, or other organizational or governing documents, and (ii) a long form good standing certificate
for each Loan Party from its jurisdiction of organization and each other state in which the failure to so qualify and be in good
standing could reasonably be expected to have a Material Adverse Effect.


 






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(d) Financial Condition
Certificate. The Administrative Agent shall have received a certificate or certificates executed by an Authorized Officer of
the Borrower as of the Effective Date, in form and substance reasonably acceptable to the Administrative Agent stating that (i)
there does not exist any pending or ongoing, action, suit, investigation, litigation or proceeding in any court or before any other
Governmental Authority (A) affecting this Agreement or the other Loan Documents, that has not been settled, dismissed, vacated,
discharged or terminated prior to the Effective Date or (B) that purports to affect any Loan Party or any of its Subsidiaries,
or any Transaction, which action, suit, investigation, litigation or proceeding which, if adversely determined, could reasonably
be expected to have a Material Adverse Effect, that has not been settled, dismissed, vacated, discharged or terminated prior to
the Effective Date, (ii) immediately after giving effect to this Agreement, the other Loan Documents, and all the Transactions
contemplated to occur on such date, (A) no Default or Event of Default exists and (B) all representations and warranties contained
herein and in the other Loan Documents are true and correct in all material respects, and (iii) each of the other conditions precedent
in this Section 4.01 have been satisfied, except to the extent the satisfaction of any such condition is subject to the judgment
or discretion of the Administrative Agent or any Lender.


 


(e) Fees. The
Lenders and the Administrative Agent shall have received all fees required to be paid, and all expenses required to be reimbursed
for which invoices have been presented (including the reasonable fees and expenses of legal counsel), on or before the Effective
Date. All such amounts will be paid with proceeds of Loans made on the Effective Date and will be reflected in the funding instructions
given by the Borrower to the Administrative Agent on or before the Effective Date.


 


(f) Personal Property
Collateral. The Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative
Agent:


 


(i) (A) searches
of UCC filings in the jurisdiction of incorporation or formation, as applicable, of each Loan Party and each jurisdiction where
any Collateral is located or where a filing would need to be made in order to perfect the Administrative Agent’s security
interest in the Collateral, copies of the financing statements on file in such jurisdictions and evidence that no Liens exist other
than Permitted Liens and (B) tax lien and judgment searches;


 


(ii) searches
of ownership of Intellectual Property in the appropriate governmental offices and such patent/trademark/copyright filings as requested
by the Administrative Agent in order to perfect the Administrative Agent’s security interest in the Intellectual Property;


 


(iii) completed
UCC financing statements for each appropriate jurisdiction as is necessary, in the Administrative Agent’s sole discretion,
to perfect the Administrative Agent’s security interest in the Collateral;


 


(iv) stock
or membership certificates, if any, evidencing the Equity Interests pledged to the Administrative Agent pursuant to the Security
Agreement and undated stock or transfer powers duly executed in blank;


 


(v) each
promissory note (if any) pledged to the Administrative Agent pursuant to the Security Agreement endorsed (without recourse) in
blank (or accompanied by an executed transfer form in blank) by the pledgor thereof


 


(vi) duly
executed consents as are necessary, in the Administrative Agent’s sole discretion, to perfect the Lenders’ security
interest in the Collateral;


 


(vii) to
the extent required to be delivered pursuant to the terms of the Collateral Documents, all instruments, documents and chattel paper
in the possession of any of the Loan Parties, together with allonges or assignments as may be necessary or appropriate to perfect
the Administrative Agent’s and the Lenders’ security interest in the Collateral;


 






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(g) Pay-Off Letter.
The Administrative Agent shall have received satisfactory pay-off letters for all existing Indebtedness (other than Indebtedness
permitted to exist pursuant to Section 6.01) required to be repaid (including, but not limited to the Indebtedness evidenced by
the Existing Credit Agreement) and which confirms that all Liens upon any of the property of the Loan Parties constituting Collateral
will be terminated concurrently with such payment and all letters of credit issued or guaranteed as part of such Indebtedness shall
have been cash collateralized or supported by a Letter of Credit, except for Existing Letters of Credit.


 


(h) Funding Account.
The Administrative Agent shall have received a notice setting forth the deposit account of the Borrower (the “Funding
Account”) to which the Administrative Agent is authorized by the Borrower to transfer the proceeds of any Borrowings
requested or authorized pursuant to this Agreement.


 


(i) Collateral Access.
The Administrative Agent shall have received a Collateral Access Agreement for the Borrower’s headquarters buildings.


 


(j) Solvency Certificate.
The Administrative Agent shall have received an officer’s certificate prepared by a Financial Officer of the Borrower as
to the financial condition, solvency and related matters of the Loan Parties and their Subsidiaries, after giving effect to the
Transactions and the initial borrowings under the Loan Documents, in form and substance acceptable to the Administrative Agent.


 


(k) [Intentionally Omitted]


 


(l) Letter of Credit
Application. The Administrative Agent shall have received a properly completed letter of credit application (whether standalone
or pursuant to a master agreement, as applicable) if the issuance of a Letter of Credit will be required on the Effective Date.


 


(m) Legal and Regulatory
Due Diligence. The Administrative Agent and its counsel, Winstead PC, shall have completed all legal due diligence, the results
of which shall be satisfactory to Administrative Agent in its sole discretion. All legal (including tax implications) and regulatory
matters shall be satisfactory to the Administrative Agent and Lenders, including but not limited to compliance with all applicable
requirements of Regulations U, T and X of the Board of Governors of the Federal Reserve System.


 


(n) PATRIOT Act, Etc.
The Administrative Agent and Lenders shall have received all documentation and other information required by bank regulatory authorities
under applicable “know your customer” and anti-money laundering rules and regulations, including PATRIOT Act, and a
properly completed and signed IRS Form W-8 or W-9, as applicable, for each Loan Party.


 


(o) Consents.
The Administrative Agent shall have received evidence that all boards of directors, governmental, shareholder and material third
party consents and approvals necessary in connection with the Transactions have been obtained and all applicable waiting periods
have expired without any action being taken by any authority that could restrain, prevent or impose any material adverse conditions
on such transactions or that could seek or threaten any of the foregoing.


 


(p) Structure.
The pro forma capital, ownership and management structure and shareholding arrangement of the Borrower and its Subsidiaries (and
all agreements relating thereto) shall be reasonably satisfactory to the Administrative Agent.


 


(q) Other Documents.
The Administrative Agent shall have received such other documents as the Administrative Agent, the Issuing Bank or their respective
counsel may have reasonably requested.


 






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For purposes of determining compliance
with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented
to, approved and accepted, or to be satisfied with, each document or other matter required hereunder to be consented to or approved
or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior
to the Effective Date specifying its objections thereto. The Administrative Agent shall notify the Borrower, the Lenders and the
Issuing Bank of the Effective Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations
of the Lenders to make Loans and of the Issuing Bank to issue Letters of Credit hereunder shall not become effective unless each
of the foregoing conditions is satisfied (or waived pursuant to Section 9.02) at or prior to 2:00 p.m., eastern time, on December
31, 2017 (and, in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time).


 


SECTION 4.02. Each
Credit Event. The obligation of each Lender to make a Loan on the occasion of any Borrowing, and of the Issuing Bank to issue,
amend, renew or extend any Letter of Credit, is subject to the satisfaction of the following conditions:


 


(a) The representations
and warranties of the Loan Parties set forth in the Loan Documents shall be true and correct in all material respects with the
same effect as though made on and as of the date of such Borrowing or the date of issuance, amendment, renewal or extension of
such Letter of Credit, as applicable (it being understood and agreed that any representation or warranty which by its terms is
made as of a specified date shall be required to be true and correct in all material respects only as of such specified date, and
that any representation or warranty which is subject to any materiality qualifier shall be required to be true and correct in all
respects).


 


(b) At the time of and
immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as
applicable, no Default shall have occurred and be continuing.


 


(c) After giving effect
to any Borrowing or the issuance, amendment, renewal or extension of any Letter of Credit, Availability shall not be less than
zero.


 


Each Borrowing and each issuance, amendment,
renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower on the date
thereof as to the matters specified in paragraphs (a) and (b) and (c) of this Section.


 


ARTICLE V


 


Affirmative Covenants


 


Until all of the Secured
Obligations shall have been Paid in Full, each Loan Party executing this Agreement covenants and agrees, jointly and severally
with all of the other Loan Parties, with the Lenders that it shall:


 


SECTION 5.01. Financial
Statement. Furnish to the Administrative Agent and each of the Lenders:


 


(a) Annual Financial
Statements. As soon as available and in any event no later than ninety (90) days after the end of each fiscal year of the Borrower
(beginning with fiscal year 2017), a copy of the Consolidated balance sheet of the Borrower and its Subsidiaries as of the end
of such fiscal year and the related Consolidated statements of income and retained earnings and of cash flows of the Borrower and
its Subsidiaries for such year, which shall be audited by a firm of independent certified public accountants of nationally recognized
standing reasonably acceptable to the Administrative Agent (and the Administrative Agent hereby acknowledges that Deloitte LLP
is acceptable to it), setting forth in each case in comparative form the figures for the previous year, reported on without a “going
concern” or like qualification or exception, or qualification indicating that the scope of the audit was inadequate to permit
such independent certified public accountants to certify such financial statements without such qualification;


 






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(b) Quarterly Financial
Statements. As soon as available and in any event no later than forty-five (45) days after the end of each of the first three
fiscal quarters of each fiscal year of the Borrower, a copy of the Consolidated balance sheet of the Borrower and its Subsidiaries
as of the end of such period and related Consolidated statements of income and retained earnings and of cash flows for the Borrower
and its Subsidiaries for such quarterly period and for the portion of the fiscal year ending with such period, in each case setting
forth in comparative form Consolidated figures for the corresponding period or periods of the preceding fiscal year (subject to
normal recurring year-end audit adjustments);


 


(c) Monthly Financial
Statements. As soon as available and in any event no later than thirty (30) days after the end of each fiscal month of the
Borrower, a copy of the Consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such period and related
Consolidated statements of income and retained earnings and of cash flows for the Borrower and its Subsidiaries for such monthly
period and for the portion of the fiscal year ending with such period, in each case setting forth in comparative form Consolidated
figures for the corresponding period or periods of the preceding fiscal year in draft form (subject to normal recurring quarter-end
adjustments and except that such statements are condensed and exclude detailed footnote disclosures);


 


(d) Annual Operating
Budget and Cash Flow. As soon as available, but in any event no later than sixty (60) days after the beginning of each fiscal
year (including fiscal year 2018), a copy of the detailed annual operating budget or plan including cash flow projections of the
Borrower and its Subsidiaries for such fiscal year prepared on a quarterly basis, in form and detail reasonably acceptable to the
Administrative Agent and the Lenders, together with a summary of the material assumptions made in the preparation of such annual
budget or plan;


 


(e) 16-Week Sales
Reporting, Cash Flow Projections and Flash Report. Weekly, as soon as available, and in any event by no later than the Friday
following the end of each preceding calendar week of the Borrower (or such later date agreed to in writing by the Administrative
Agent) commencing with the week ending July 10, 2020, each in form and detail acceptable to the Administrative Agent, (i) a
copy of the sales reporting and cash flow projections of the Borrower and its Subsidiaries for the succeeding 16-week period, (ii) a
summary of the material assumptions made in the preparation of such reports and projections, (iii) a forecast-to-actual comparison
for the calendar week just ended and (iv) a flash report with a store by store comparison; and


 


(f) Forecasts.
As soon as available and in any event no later than thirty (30) days after the end of each fiscal month of the Borrower (or such
later date agreed to in writing by the Administrative Agent) commencing with the first such forecast required to be delivered to
the Lenders no later than July 20, 2020 (or such later date agreed to in writing by the Administrative Agent), forecasts based
on actual year to date results for the fiscal years 2020 and 2021, including (i) monthly income statements (consolidated and
by brand) throughout the Amendment Period and quarterly thereafter, (ii) monthly cash flow statements (consolidated) throughout
the Amendment Period and quarterly thereafter and (iii) comparable same store sales (monthly throughout the Amendment Period
and quarterly thereafter); provided, that, notwithstanding the foregoing, for the fiscal month ended June 28, 2020 only,
forecasts shall include (A) monthly income statements (consolidated and by brand) through the fiscal year ending January 3,
2021 and quarterly thereafter, (B) quarterly cash flow statements (consolidated) through the fiscal year ending January 3,
2021 and quarterly thereafter and (C) comparable same store sales (monthly through the fiscal year ending January 3, 2021
and quarterly thereafter), with a conference call to discuss the July 2020 forecast to be attended by the Borrower, its chief financial
officer, its chief executive officer, the Administrative Agent, the Lenders and any of their representatives and advisors, at each
Lender’s election at 2:00pm central time on July 21, 2020 and at 2:00pm central time on the first Tuesday following required
latest date of delivery thereafter (or such other day or time agreed to in writing by the Administrative Agent);


 






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all such financial statements
furnished pursuant to subsections (a), (b) and (c) above shall be complete and correct in all material respects (subject, in the
case of quarterly statements, to normal recurring year-end audit adjustments and except that such statements are condensed and
exclude detailed footnote disclosures, and subject, in the case of monthly statements, to normal recurring quarter-end adjustments
and except that such statements are condensed and exclude detailed footnote disclosures) and to be prepared in reasonable detail
and, in the case of the annual, quarterly and monthly financial statements provided in accordance with subsections (a), (b) and
(c) above, in accordance in all material respects with GAAP applied consistently throughout the periods reflected therein and further
accompanied by a description of, and an estimation of the effect on the financial statements on account of, a change, if any, in
GAAP as provided in Section 1.04.


 


Notwithstanding the foregoing, financial
statements and reports required to be delivered pursuant to the foregoing provisions of this Section may be delivered electronically
and if so, shall be deemed to have been delivered on the date on which the Administrative Agent receives such reports from the
Borrower through electronic mail; provided that, upon the Administrative Agent’s request, the Borrower shall provide
paper copies of any documents required hereby to the Administrative Agent.


 


SECTION 5.02. Certificates;
Other Information. Furnish to the Administrative Agent and each of the Lenders:


 


(a) Officer’s
Certificate. Concurrently with the delivery of the financial statements referred to in Sections 5.01(a), 5.01(b) and 5.01(c)
above, an executed and completed copy of the applicable form of Compliance Certificate, (i) certifying as presenting fairly
in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on
a Consolidated basis in accordance with GAAP consistently applied, and in the case of the financial statements delivered under
Section 5.01(b) above, subject to normal year-end audit adjustments and the absence of footnotes, and in the case of financial
statements delivered under Section 5.01(c) above, subject to normal quarter-end adjustments and the absence of footnotes, (ii) certifying
as to whether a Default has occurred and, if a Default has occurred, specifying the details thereof and any action taken or proposed
to be taken with respect thereto, (iii) setting forth reasonably detailed calculations demonstrating compliance with each
applicable provision of Section 5.10 and Section 6.14, (iv) stating whether any change in GAAP or in the application
thereof has occurred since the date of the audited financial statements referred to in Section 3.01 and, if any such change
has occurred, specifying the effect of such change on the financial statements accompanying such certificate (which specification
may be a cross-reference to any publically filed financial statements), (v) on the monthly Compliance Certificate, stating
whether any sale, transfer, lease or other disposition of property, including, but not limited to any Sale Leaseback, has occurred
since the date of the last officer’s certificate delivered to the Administrative Agent and specifying the details thereof,
including calculations detailing the determination of Net Proceeds received in connection with such event and confirming that all
required mandatory prepayments have been made in accordance with the terms and conditions of each component of Section 2.09, (vi) on
the monthly Compliance Certificate, stating whether any issuances of new common Equity Interests of the Borrower (with a notation
for all issuances made pursuant to the terms and conditions of the Incentive Plan), have occurred since the date of the last officer’s
certificate delivered to the Administrative Agent and specifying the details thereof, including, the amount of Net Proceeds in
cash received and whether such proceeds were received in connection with a Cure and confirming that all required mandatory prepayments
have been made in accordance with the terms and conditions of each component of Section 2.09, and (vii) certifying as to such
other matters set forth therein or as otherwise requested in writing by the Administrative Agent.


 






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(b) Updated Schedules.
Concurrently with or prior to the delivery of the financial statements referred to in Section 5.01(c) above, (i) an updated copy
of Schedule 3.03 and Schedule 3.12 if the Loan Parties or any of their Subsidiaries has formed or acquired a new
Subsidiary since the Second Amendment Effective Date or since such Schedule was last updated, as applicable, (ii) an updated copy
of Schedule 3.16(a) if the Loan Parties have registered, applied for registration of, acquired or otherwise obtained ownership
of any new Intellectual Property since the Second Amendment Effective Date or since such Schedule was last updated, as applicable,
(iii) an updated copy of Schedule 3.16(b) if the Loan Parties have obtained any Documents (as defined in the UCC), Instruments
(as defined in the UCC) or Tangible Chattel Paper (as defined in the UCC) since the Second Amendment Effective Date or since such
Schedule was last updated, as applicable, (iv) an updated copy of Schedule 3.16(c) if the Loan Parties have any Commercial
Tort Claims (as defined in the UCC) not otherwise set forth on such Schedule as of the Second Amendment Effective Date or since
such Schedule was last updated, as applicable, (v) an updated copy of Schedule 3.16(d) to the extent required to be updated
to make the representation in Section 3.16(d) true and correct, (vi) an updated copy of Schedule 3.16(e) to the extent any
Loan Party has a (1) headquarter location and (2) location where any significant administrative functions are performed (and an
indication whether such location is leased or owned), to the extent not otherwise set forth on such Schedule as of the Second Amendment
Effective Date or since such Schedule was last updated, as applicable, (vii) an updated copy of Schedule 3.22 if any new
Material Contract has been entered into or any Material Contract has been terminated since the Second Amendment Effective Date
or since such Schedule was last updated, as applicable, together with a copy of each new Material Contract, (viii) an updated copy
of Schedule 3.23 if the Loan Parties or any of their Subsidiaries has altered or acquired any insurance policies since the
Second Amendment Effective Date or since such Schedule was last updated, (ix) an updated copy of Schedule 3.29 if the
Loan Parties or any of the Subsidiaries have (A) incurred any Indebtedness since the since the Second Amendment Effective
Date or since such Schedule was last updated, (B) granted any Liens since the Second Amendment Effective Date or since such
Schedule was last updated or (C) made any Investments since the Second Amendment Effective Date or since such Schedule was
last updated and (x) an updated copy of Schedule 5.15 if any Borrower or any Subsidiary has acquired, leased or constructed
(or entered into a binding commitment to construct) any new Restaurant since the Second Amendment Effective Date or since such
Schedule was last updated, as applicable.


 


(c) Reports; SEC Filings;
Regulatory Reports; Press Releases; Etc. Promptly upon their becoming available, (i) copies of all reports (other than those
provided pursuant to Section 5.01 and those which are of a promotional nature) and other financial information which any Loan Party
sends to its shareholders, (ii) copies of all reports and all registration statements and prospectuses, if any, which any Loan
Party may make to, or file with, the SEC (or any successor or analogous Governmental Authority) or any securities exchange or other
private regulatory authority, (iii) all material regulatory reports and (iv) all press releases and other statements made available
by any of the Loan Parties to the public concerning material developments in the business of any of the Loan Parties.


 


(d) Calculations.
Within ninety (90) days after the end of each fiscal year of the Borrower, a certificate containing information including the amount
of all Restricted Payments and Investments, that were made during the prior fiscal year.


 






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(e) Changes in Corporate
Structure. Within ten days prior to any merger, consolidation, dissolution or other change in corporate structure of any Loan
Party or any of its subsidiaries permitted pursuant to the terms hereof, provide notice of such change in corporate structure to
the Administrative Agent.


 


(f) General Information.
Promptly following any request therefor, (x) such other information regarding the operations, changes in ownership of Equity
Interests, business affairs and financial condition of any Loan Party or any Subsidiary, or compliance with the terms of this Agreement,
as the Administrative Agent or any Lender (through Administrative Agent) may reasonably request, (y) information and documentation
reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer”
and anti-money laundering rules and regulations, including the USA PATRIOT Act and the Beneficial Ownership Regulation and (z) evidence
in detail satisfactory to the Administrative Agent of compliance with Section 5.10(c) as of any date requested by the Administrative
Agent or any Lender.


 


SECTION 5.03. Payment
of Taxes and Other Obligations. Pay, discharge or otherwise satisfy at or before maturity or before they become delinquent,
as the case may be, subject, where applicable, to specified grace periods, (a) all of its material taxes (Federal, state,
local and any other taxes), (b) all of its other obligations and liabilities of whatever nature in accordance with industry
practice to the extent failure to pay could reasonably be expected to have a Material Adverse Effect and (c) any additional
costs that are imposed as a result of any failure to so pay, discharge or otherwise satisfy such taxes, obligations and liabilities,
except when the amount or validity of any such taxes, obligations and liabilities is currently being contested in good faith by
appropriate proceedings and reserves, if applicable, in conformity with GAAP with respect thereto have been provided on the books
of the Loan Parties.


 


SECTION 5.04. Conduct
of Business and Maintenance of Existence. Except as expressly permitted under Section 6.04, continue to engage in business
of the same general type as now conducted by it on the Effective Date and preserve, renew and keep in full force and effect its
corporate or other formative existence and good standing, take all reasonable action to maintain all rights, privileges and franchises
necessary or desirable in the normal conduct of its business and to maintain its goodwill and comply in all material respects with
Requirements of Law.


 


SECTION 5.05. Maintenance
of Property; Insurance. Maintain with financially sound and reputable insurance companies liability, casualty, property and
business interruption insurance (including, without limitation, insurance with respect to its tangible Collateral) in at least
such amounts and against at least such risks as are usually insured against in the same general area by companies engaged in the
same or a similar business; and furnish to the Administrative Agent, upon the request of the Administrative Agent, full information
as to the insurance carried. To the extent permitted under applicable laws, the Administrative Agent shall be named (i) as lenders’
loss payee, as its interest may appear with respect to any property insurance, and (ii) as additional insured, as its interest
may appear, with respect to any such liability insurance, and each provider of any such insurance shall agree, by endorsement upon
the policy or policies issued by it or by independent instruments to be furnished to the Administrative Agent, that it will give
the Administrative Agent thirty (30) days prior written notice before any such policy or policies shall be altered or canceled,
and such policies shall provide that no act or default of the Loan Parties or any of their Subsidiaries or any other Person shall
affect the rights of the Administrative Agent or the Lenders under such policy or policies.


 


SECTION 5.06. Maintenance
of Books and Records. Keep proper books, records and accounts which permit financial statements to be prepared in accordance
with GAAP.


 






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SECTION 5.07. Notices.
Give notice in writing to the Administrative Agent (which shall promptly transmit such notice to each Lender):


 


(a) promptly, but in
any event within two (2) Business Days after any Loan Party knows thereof, the occurrence of any Default or Event of Default;


 


(b) promptly after becoming
aware of any default or event of default under any Contractual Obligation of any Loan Party or any of its Subsidiaries which, individually
or in the aggregate, could reasonably be expected to have a Material Adverse Effect or involve a monetary claim in excess of $2,500,000;


 


(c) promptly after becoming
aware of any litigation, or any investigation or proceeding known or threatened to any Loan Party (i) affecting any Loan Party
or any of its Subsidiaries which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect
or involve a monetary claim in excess of $5,000,000 or involving injunctions or requesting injunctive relief by or against any
Loan Party or any Subsidiary of any Loan Party, (ii) affecting or with respect to this Agreement, any other Loan Document or any
security interest or Lien created thereunder, (iii) involving an environmental claim or potential liability under Environmental
Laws which could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, or (iv) by any
Governmental Authority relating to any Loan Party or any Subsidiary thereof and alleging fraud, deception or willful misconduct
by such Person;


 


(d) of any labor controversy
that has resulted in, or threatens to result in, a strike or other work action against any Loan Party which could reasonably be
expected to have a Material Adverse Effect;


 


(e) of any attachment,
judgment, lien, levy or order exceeding $5,000,000 that may be assessed against or threatened against any Loan Party other than
Permitted Liens;


 


(f) as soon as possible
and in any event within thirty (30) days after any Loan Party knows or has reason to know thereof, the occurrence of any ERISA
Event that, alone or together with any other ERISA Events that have occurred, in each case which could reasonably be expected to
have a Material Adverse Effect;


 


(g) promptly, any notice
of any violation received by any Loan Party from any Governmental Authority including, without limitation, any notice of violation
of Environmental Laws which could reasonably be expected to have a Material Adverse Effect;


 


(h) promptly, copies
of all written notices, compliance certificates, other certificates and reports delivered to any holder of Indebtedness, whether
in accordance with the terms of the documentation evidencing such Indebtedness or otherwise,


 


(i) promptly, any other
development or event which could reasonably be expected to have a Material Adverse Effect; and


 


(j) promptly, any change
in the information provided in the Beneficial Ownership Certification delivered to such Lender that would result in a change to
the list of beneficial owners identified in such certification.


 


Each notice pursuant to this Section shall
be accompanied by a statement of an Authorized Officer setting forth details of the occurrence referred to therein and stating
what action the Loan Parties propose to take with respect thereto. In the case of any notice of a Default or Event of Default,
the Borrower shall specify that such notice is a Default or Event of Default notice on the face thereof.


 






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SECTION 5.08. Use
of Proceeds.


 


(a) The proceeds of the
Loans will be used only to refinance in full the Indebtedness existing under the Existing Credit Agreement, to finance the working
capital needs of the Borrower and its Subsidiaries in the ordinary course of business and for general corporate purposes in the
ordinary course of business. No part of the proceeds of any Loan and no Letter of Credit will be used, whether directly or indirectly,
(i) for any purpose that entails a violation of any of the Regulations of the Board, including Regulations T, U and X or (ii)
to make any acquisition. Letters of Credit will be issued only to support working capital needs of the Borrower and its Subsidiaries
in the ordinary course of business and for general corporate purposes in the ordinary course of business.


 


(b) The Borrower will
not request any Borrowing or Letter of Credit, and the Borrower shall not use, and shall procure that its Subsidiaries and its
or their respective directors, officers, employees and agents shall not use, the proceeds of any Borrowing or Letter of Credit
(a) 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 Anti-Corruption Laws, (b) for the purpose of funding, financing or facilitating any activities,
business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, except to the extent permitted for a Person
required to comply with Sanctions, or (c) in any manner that would result in the violation of any Sanctions applicable to
any party hereto.


 


SECTION 5.09. Environmental
Laws.


 


(a) Except as could not
reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, comply with all applicable
Environmental Laws and obtain and comply with and maintain any and all licenses, approvals, notifications, registrations or permits
required by applicable Environmental Laws;


 


(b) Except as could not
reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, conduct and complete all investigations,
studies, sampling and testing, and all remedial, removal and other actions required under Environmental Laws and promptly comply
with all lawful orders and directives of all Governmental Authorities regarding Environmental Laws except to the extent that the
same are being contested in good faith by appropriate proceedings; and


 


(c) Defend, indemnify
and hold harmless the Administrative Agent and the Lenders, and their respective employees, agents, officers and directors and
affiliates, from and against any and all claims, demands, penalties, fines, liabilities, settlements, damages, costs and expenses
of whatever kind or nature, known or unknown, contingent or otherwise, arising out of, or in any way relating to the violation
of, noncompliance with or liability under, any Environmental Law applicable to the operations of the Loan Parties or any of their
Subsidiaries or the Properties, or any orders, requirements or demands of Governmental Authorities related thereto, including,
without limitation, reasonable attorney’s and consultant’s fees, investigation and laboratory fees, response costs,
court costs and litigation expenses, except to the extent that any of the foregoing arise out of the gross negligence or willful
misconduct of the party seeking indemnification therefor. The agreements in this paragraph shall survive repayment of the Secured
Obligations and all other amounts payable hereunder and termination of the Commitments and the Loan Documents.


 






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SECTION 5.10. Financial
Covenants. Comply with the following financial covenants:


 


(a) Adjusted Leverage
Ratio. The Adjusted Leverage Ratio, calculated as of the last day of any fiscal quarter ending during any period or on any
date set forth below, shall be less than or equal to the ratio set forth below opposite such period or date; provided that
the Borrower shall not be required to maintain an Adjusted Leverage Ratio pursuant to this Section 5.10(a) during the Amendment
Period:


 


	Period or Date	 	Ratio
	Effective Date through April 3, 2021	 	4.75 to 1.00
	Fiscal quarter ending April 4, 2021	 	6.75 to 1.00
	Fiscal quarter ending July 4, 2021	 	5.25 to 1.00
	Fiscal quarter ending October 3, 2021	 	5.00 to 1.00
	Fiscal quarters ending January 2, 2022 and April 3, 2022	 	5.75 to 1.00
	Fiscal quarter ending July 3, 2022	 	5.00 to 1.00
	Fiscal quarter ending October 2, 2022	 	4.75 to 1.00




 


(b) Fixed Charge Coverage
Ratio. The Fixed Charge Coverage Ratio, calculated as of the last day of any fiscal quarter ending during any period or on
any date set forth below, shall be greater than or equal to the ratio set forth below opposite such period or date; provided
that the Borrower shall not be required to maintain a Fixed Charge Coverage Ratio pursuant to this Section 5.10(b) during the
Amendment Period:


 


	Period or Date	 	Ratio
	Effective Date through April 3, 2021	 	1.50 to 1.00
	Fiscal quarter ending April 4, 2021	 	1.15 to 1.00
	Fiscal quarters ending July 4 2021 and October 3, 2021	 	1.50 to 1.00
	Fiscal quarters ending January 2, 2022 and April 3, 2022	 	1.25 to 1.00
	Fiscal quarter ending July 3, 2022 and thereafter	 	1.50 to 1.00



 


(c) Minimum Liquidity.
At all times during the periods set forth below, Liquidity shall be greater than or equal to the amount set forth below opposite
such period:


 


	Period	 	Amount	 
	Second Amendment Effective Date through September 27, 2020	 	$	40,000,000	 
	September 28, 2020 through January 3, 2021	 	$	30,000,000	 
	January 4, 2021 and thereafter	 	$	25,000,000	 



 






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SECTION 5.11. Additional
Guarantors. If any Loan Party or any of the Subsidiaries (in breach of the prohibitions contained herein regarding the formation,
creation or acquisition of Subsidiaries) forms, creates or acquires any Subsidiary, then the Loan Parties will cause each of their
Domestic Subsidiaries, whether newly formed, after acquired or otherwise existing to promptly (and in any event within five (5)
days after such Subsidiary is formed or acquired or after the request of the Administrative Agent (or such longer period of time
as agreed to in writing by the Administrative Agent in its reasonable discretion)) become a Guarantor hereunder by way of execution
of a Joinder Agreement. In connection therewith, the Administrative Agent shall have received all documentation and other information
regarding such newly formed or acquired Subsidiaries as may be required to comply with the applicable “know your customer”
rules and regulations, including the USA Patriot Act. The Secured Obligations shall be secured by, among other things, a first
priority perfected security interest in the Collateral of such new Guarantor and a pledge of 100% of the Equity Interests of such
new Guarantor and its Domestic Subsidiaries (other than any Domestic Subsidiary that is owned by a Foreign Subsidiary) and 66%
of the voting Equity Interests and 100% of the non-voting Equity Interests of its first-tier Foreign Subsidiaries. In connection
with the foregoing, the Loan Parties shall deliver to the Administrative Agent, with respect to each new Guarantor to the extent
applicable, substantially the same documentation required pursuant to Sections 4.01(a), 4.01(c), 4.01(d), 4.01(f), 4.01(j), 4.01(k),
4.01(n), 4.01(o), 4.01(q) and 5.13 and such other documents or agreements as the Administrative Agent may reasonably request.


 


SECTION 5.12. Compliance
with Law. Comply with all Requirements of Law and orders (including Environmental Laws), and all applicable restrictions imposed
by all Governmental Authorities, applicable to it and the Collateral if noncompliance with any such Requirements of Law, order
or restriction could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.


 


SECTION 5.13. Pledged
Assets.


 


(a) Equity Interests.
Each Loan Party will, and will cause each of its Subsidiaries to, (i) cause 100% of the Equity Interests in each of its direct
or indirect Domestic Subsidiaries (other than the Excluded Subsidiary and any Domestic Subsidiary that is owned by a Foreign Subsidiary)
and 66% of the voting Equity Interests and 100% of the non-voting Equity Interests of its first-tier Foreign Subsidiaries, in each
case to the extent owned by such Loan Party, to be subject at all times to a first priority, perfected Lien in favor of the Administrative
Agent pursuant to the terms and conditions of the Collateral Documents or such other security documents as the Administrative Agent
shall reasonably request, (ii) to the extent not previously delivered, deliver to the Administrative Agent certificates evidencing
such Equity Interests (if such Equity Interests are a security or if such Subsidiary issues certificates with respect to its Equity
Interests), which certificates shall (A) not contain any restriction or legend not acceptable to the Administrative Agent
in its discretion except as otherwise may be required by law, and (B) contain on the face of such certificate an English translation
of the entire text on the face of such certificate; (iii) deliver to the Administrative Agent undated stock and similar powers
executed in blank; (iv) if applicable, deliver to the Administrative Agent an English translation of all organizational and
governance documents, which translation shall be certified as to accuracy in a manner acceptable to the Administrative Agent in
its discretion; (v) waive all restrictions of the grant, maintenance, and enforcement of the pledge of all Equity Interests
included in collateral, including the right of the Administrative Agent or its assignee to exercise all rights of the applicable
grantor with respect to such Equity Interests free and clear of all restrictions other than any such restrictions required by law
and otherwise not waiveable; (vi) pay all taxes and other amounts assessed by any Governmental Authority related to such pledge;
(vii) deliver to the Administrative Agent such legal opinions prepared by local counsel relating to the matters described
in this clause and clause (d) below and to all matters as the Administrative Agent may reasonably request; (viii) deliver
to the Administrative Agent confirmations of pledge in form acceptable to the Administrative Agent; and (ix) take any and all other
actions as the Administrative Agent may request, including taking any and all actions necessary, required or requested in any non-United
States jurisdiction, to cause such pledge to be granted, perfected and first priority under the laws of all applicable jurisdictions
(subject to such exceptions as may be acceptable to the Administrative Agent in its discretion).


 






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(b) Personal Property
and Real Property. Subject to any exclusions set forth in the Security Agreement, each Loan Party will, and will cause each
of its Subsidiaries (other than the Excluded Subsidiary) to, cause all or substantially all of its tangible and intangible personal
property and assets and, at the request of the Administrative Agent, all real property, in each case now owned or hereafter acquired
by it to be subject at all times to a first priority, perfected Lien (subject in each case to Permitted Liens) in favor of the
Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations pursuant to the terms and conditions
of the Collateral Documents or such other security documents as the Administrative Agent shall reasonably request. Each Loan Party
shall, and shall cause each of its Subsidiaries to, adhere to the covenants set forth in the Collateral Documents.


 


(c) Leases and other
Agreements. Each Loan Party shall timely and fully pay and perform its obligations under all leases and other agreements with
respect to each leased location or public warehouse where any Collateral is or may be located except where the failure to pay or
perform could not reasonably be expected to have a Material Adverse Effect.


 


(d) Additional Matters.
At the request of the Administrative Agent or the Lenders, each Loan Party will, and will cause each Subsidiary (other than the
Excluded Subsidiary, except to the extent provided herein) to (i) provide such documentation and take such other actions as
such Loan Party or Subsidiary would have provided and taken if such Loan Party or Subsidiary had been a Loan Party on the Effective
Date (including, opinions, delivery of possessory collateral and other documents and deliverables), (ii) execute such Collateral
Documents as the Administrative Agent may reasonably request, in each case to secure the Secured Obligations, and (iii) take
all other actions necessary or desirable in the determination of the Administrative Agent to effectuate each Loan Party or Subsidiary
granting and maintaining a first priority perfected security interest in all or substantially all personal property and assets
and real property, in each case, including, but not limited to, any of the actions described in this Section 5.13.


 


SECTION 5.14. Further
Assurances and Other Covenants.


 


(a) Public/Private
Designation. The Loan Parties will cooperate with the Administrative Agent in connection with the publication of certain materials
and/or information provided by or on behalf of the Loan Parties to the Administrative Agent and Lenders (collectively, “Information
Materials”) and will designate Information Materials (i) that are either available to the public or not material
with respect to the Loan Parties and their Subsidiaries or any of their respective securities for purposes of United States federal
and state securities laws, as “Public Information” and (ii) that are not Public Information as “Private
Information”.


 


(b) Additional Information.
The Loan Parties shall provide such information regarding the operations, business affairs and financial condition of the Loan
Parties and their Subsidiaries as the Administrative Agent or any Lender may reasonably request.


 


(c) Visits and Inspections.
The Loan Parties shall permit representatives of the Administrative Agent or any Lender, from time to time upon prior reasonable
notice and at such times during normal business hours, to visit and inspect its properties (including the Collateral); inspect,
audit and make extracts from its books, records and files; and discuss with its principal officers, and its independent accountants,
its business, assets, liabilities, financial condition, results of operations and business prospects. Upon the occurrence and during
the continuance of an Event of Default, the Administrative Agent or any Lender may do any of the foregoing at any time without
advance notice.


 






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(d) Further Assurances.
Upon the reasonable request of the Administrative Agent, promptly perform or cause to be performed any and all acts and execute
or cause to be executed any and all documents for filing under the provisions of the UCC or any other Requirement of Law which
are necessary or advisable to maintain in favor of the Administrative Agent, for the benefit of the Secured Parties, Liens on the
Collateral that are duly perfected in accordance with the requirements of, or the obligations of the Loan Parties under, the Loan
Documents and all applicable Requirements of Law.


 


SECTION 5.15. New
Restaurants. Provide the Administrative Agent, as of the end of each fiscal month (beginning with the fiscal month of July
2020), notice of the acquisition, lease or construction (or binding commitment to construct) of any new Restaurant by the Borrower
or any Subsidiary.


 


SECTION 5.16. Subordination
of Intercompany Debt. Each Loan Party agrees that all intercompany Indebtedness among Loan Parties (the “Intercompany
Debt”) is subordinated in right of payment, to the prior payment in full of all Secured Obligations. Notwithstanding
any provision of this Agreement to the contrary, provided that no Event of Default has occurred and is continuing, Loan
Parties may make and receive payments with respect to the Intercompany Debt to the extent otherwise permitted by this Agreement;
provided that in the event of and during the continuation of any Event of Default, no payment shall be made by or on behalf
of any Loan Party on account of any Intercompany Debt. In the event that any Loan Party receives any payment of any Intercompany
Debt at a time when such payment is prohibited by this Section, such payment shall be held by such Loan Party, in trust for the
benefit of, and shall be paid forthwith over and delivered, upon written request, to, the Administrative Agent.


 


SECTION 5.17. Post-Closing
Matters


 


(a) Deliver to the Administrative
Agent, in form and substance, and pursuant to documentation, in each acceptable to the Administrative Agent, each Collateral Access
Agreement required to be provided pursuant to the Security Agreement on or prior to the date that is thirty days after the Second
Amendment Effective Date (or such later date agreed to in writing by the Administrative Agent).


 


(b) Deliver to the Administrative
Agent, in form and substance, and pursuant to documentation, in each case acceptable to the Administrative Agent, deposit account
control agreements, securities account control agreements and commodities control agreements, as applicable, on all deposit accounts,
securities accounts and commodities accounts of the Borrower and its Subsidiaries (except certain trust or fiduciary accounts that
are excluded in accordance with the terms of the Security Agreement) on or prior to the date that is thirty days after the Second
Amendment Effective Date (or such later date agreed to in writing by the Administrative Agent).


 


(c) Deliver to the Administrative
Agent, in form and substance, and pursuant to documentation, in each case acceptable to the Administrative Agent, on or prior to
the date that is thirty days after the Administrative Agent’s written request therefore (or such later date agreed to in
writing by the Administrative Agent) all items of the Loan Parties constituting possessory collateral, and all other instruments,
assets, property, documentation and agreements, in each case in accordance with the requirements of Section 5.13, to cause all
such assets and properties of the Loan Parties to secure the Secured Obligations.


 


SECTION 5.18. Depository
Banks. Each Loan Party and each Subsidiary (only to the extent a Loan Party or Subsidiary maintains any deposit account) will
maintain one or more of the Lenders as its sole depository banks, including for the maintenance of operating, administrative, cash
management, collection activity, and other deposit accounts for the conduct of its business.


 






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SECTION 5.19. Conference
Calls. Commencing on July 13, 2020 (or such later date agreed to in writing by the Administrative Agent) and continuing
bi-weekly (every other week) thereafter throughout the term of the Agreement, the chief financial officer of the Borrower, any
advisors engaged by the Borrower and at the request of the Administrative Agent other members of the management of the Loans Parties
shall make themselves available to participate on a conference call with the Lenders and their representatives and advisors (at
each Lender’s election) regarding the Borrower’s operations, results, Dispositions, issuances of Equity Interests,
any budgets, forecasts and projections, status and reports of ContinuServe and other matters requested by any Lender, such conference
calls to be held at 10:00am central time bi-weekly on every other Wednesday following the initial call on July 13, 2020 (or such
other dates and times agreed to in writing by the Administrative Agent).


 


SECTION 5.20. Retention
of Financial Advisor. In the event that any Milestone is not satisfied in full at any time, at the expense of the Borrower,
the Borrower shall retain a financial advisory consulting firm or a chief restructuring officer (a “Financial Advisor”)
acceptable to the Administrative Agent within ten days after the failure to meet any such Milestone (or such later date agreed
to in writing by the Administrative Agent), such retention and engagement to be on terms and conditions satisfactory to the Administrative
Agent. The Borrower shall deliver a copy of the engagement letter (which shall not be amended without the consent of the Administrative
Agent) to the Administrative Agent and the Lenders concurrently with due execution thereof. Among other things, the Financial Advisor
shall report directly to the management of the Borrower and the other Loan Parties and shall have a right to provide non-binding
recommendations with respect to (a) the oversight of cash management and daily operations, (b) the preparation and/or
review of the Loan Parties’ financial statements, (c) Dispositions and Sale Leasebacks, (d) equity issuances by
the Borrower, (e) liquidity of the Loan Parties and (f) such other matters as the Administrative Agent and the Borrower
shall agree, and upon the written approval of the Borrower and the Administrative Agent such Financial Advisor shall be authorized
to retain financial and other advisors to assist with the foregoing. The Borrower shall not terminate the Financial Advisor unless
concurrently therewith the Borrower retains another Person acceptable to the Administrative Agent as the successor Financial Advisor
on terms and conditions satisfactory to the Administrative Agent. The Borrower and each other Loan Party hereby acknowledge and
agree that the Financial Advisor is authorized to cooperate fully with the Lenders and their advisors in connection with their
ongoing examination of the Loan Parties’ financial affairs, finances, financial condition, business and operations. As reasonably
requested by the Administrative Agent, the Financial Advisor and other representatives of management shall meet in person (which
may be by video conference), or shall participate in the telephone conference calls (required by this Agreement or otherwise),
with the Administrative Agent and the Lenders to discuss, among other things, the financial affairs and operations of the Loan
Parties. The Borrower agrees that the Administrative Agent and the Lenders shall be permitted to have direct communications with
the Financial Advisor and the Borrower shall deliver to Administrative Agent copies of all non-privileged reports prepared by the
Financial Advisor for the Loan Parties promptly upon receipt. For the purposes of this Section, “Milestone”
means, individually and collectively:


 


(a) At all times after
the Second Amendment Effective Date, the Borrower shall use commercially reasonable efforts to refinance in full all of the Obligations,
or repay in full the outstanding borrowings hereunder and all other Obligations, and reduce the aggregate Commitment of the Lenders
to zero, and to take such actions and make such effort to otherwise achieve a Payment in Full of all Secured Obligations;


 


(b) Commencing on the
Friday following the end the calendar week ending July 11, 2020 (or such later date agreed to in writing by the Administrative
Agent) and continuing bi-weekly on the Friday following the end of every other calendar week thereafter (or such later date agreed
to in writing by the Administrative Agent), the Borrower shall furnish to the Administrative Agent and each of the Lenders, reports,
in form, substance and detail acceptable to the Administrative Agent, addressing (i) any and all material or substantive actions
taken in order to refinance the Obligations, consummate Dispositions and issue Equity Interests of the Borrower, (ii) any
and all material or substantive actions taken in order to consummate prepayments of the Obligations and related reductions of the
aggregate Commitments of the Lenders, including, information regarding the identity of each proposed financial institution, purchaser
and/or equity provider directly solicited by the Borrower or any of its Subsidiaries for all or any portion of the refinance and
specifics regarding the amount, tenor and other details of such proposed refinancing facility and the state of negotiations thereof
and (iii) such other information as requested by the Lenders;


 






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(c) (i) on or before
July 15, 2020 (or such later date agreed to in writing by the Administrative Agent), the Borrower shall furnish to the Administrative
Agent and each of the Lenders with a written market assessment and reasonable action plan from Marcus and Millichap for the Disposition
of owned real property with a targeted gross sales value of not less than $30,000,000, which assessment and action plan shall be
in form, substance and detail acceptable to the Administrative Agent (the “Action Plan”) and (ii) the Borrower
shall meet all elements, conditions, timing and other requirements set forth in the Action Plan;


 


(d) on or before September
30, 2020 (or such later date agreed to in writing by the Administrative Agent), the Borrower shall furnish to the Administrative
Agent and each of the Lenders with a written plan from ContinuServe for executing certain actions intended to improve service levels,
reduce costs and increase efficiency, which plan shall be in form, substance and detail acceptable to the Administrative Agent
(the “Efficiency Plan”);


 


(e) on or prior to August
14, 2020 (or such later date agreed to in writing by the Administrative Agent), the Borrower shall provide the Administrative Agent
with a proposed timeline for completion of a shelf registration with the SEC for the issuance of common Equity Interests of the
Borrower; such timeline shall be in form, substance and detail acceptable to the Administrative Agent and will include a targeted
filing date of a shelf registration statement with the SEC and a description of the key steps needed to achieve the targeted filing
date;


 


(f) (i) the Borrower
shall have Liquidity in an amount greater than or equal to $30,000,000 on October 1, 2020 and (ii) on or before October 1,
2020, the Borrower shall furnish to the Administrative Agent and each of the Lenders projections demonstrating compliance with
each of the financial covenants set forth in Section 5.10 and Section 6.14 through the term of the Agreement;


 


(g) no Default shall
have occurred; and


 


(h) the Loan Parties
shall be in compliance at all times with the financial covenants set forth in Section 5.10 and Section 6.14 in accordance
with the terms of this Agreement.


 


SECTION 5.21. Efficiency
Plan. ContinuServe shall remain actively engaged in the execution of the Efficiency Plan and the Borrower shall not terminate
ContinuServe unless concurrently therewith the Borrower retains another Person acceptable to the Administrative Agent as the successor
efficiency expert on terms and conditions satisfactory to the Administrative Agent. As reasonably requested by the Administrative
Agent, ContinuServe (or any successor efficiency expert) and other representatives of management shall meet in person, or shall
participate in the telephone conference calls (required by this Agreement or otherwise), with the Administrative Agent and the
Lenders to discuss, among other things, any actions taken under the Efficiency Plan, the Loan Parties progress under the Efficiency
Plan, results under the Efficiency Plan and general operations of the Loan Parties addressed in the Efficiency Plan (the “Efficiency
Matters”). The Borrower and any consulting firms retained to assist the Borrower in the implementation of the Efficiency
Plan, including ContinuServe, shall furnish to the Administrative Agent and each of the Lenders, as soon as available, and in any
event by no later than the Friday following the end of each calendar week of the Borrower commencing with the week beginning September
28, 2020 (or such later date agreed to in writing by the Administrative Agent) and continuing bi-weekly on the Friday following
the end of every other calendar week thereafter through the date of the completion of the Efficiency Plan (or up to three (3) Business
Days thereafter if agreed to in writing by the Administrative Agent), written progress reports, in detail acceptable to the Administrative
Agent, regarding the Efficiency Matters, including results in a comparison format with all prior periods.


 






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ARTICLE VI



Negative Covenants


 


Until all of the Secured
Obligations shall have been Paid in Full, each Loan Party executing this Agreement covenants and agrees, jointly and severally
with all of the other Loan Parties, with the Lenders that:


 


SECTION 6.01. Indebtedness.
No Loan Party will, nor will it permit any Subsidiary to, contract, create, incur, assume or permit to exist any Indebtedness,
except:


 


(a) Indebtedness arising
or existing under this Agreement and the other Loan Documents and all other Secured Obligations;


 


(b) Indebtedness of the
Loan Parties and their Subsidiaries existing as of the Second Amendment Effective Date and set forth on Schedule 6.01(b)
hereto and any renewals, refinancings or extensions thereof in a principal amount not in excess of that outstanding as of the date
of such renewal, refinancing or extension and the terms of any such renewal, refinancing or extension are not less favorable in
any material respect to the obligor thereunder;


 


(c) Indebtedness of the
Loan Parties and their Subsidiaries incurred after the Effective Date but prior to the Second Amendment Effective Date consisting
of real or personal property leases entered into prior to the Second Amendment Effective Date which are recharacterized as Capital
Leases or financing leases in accordance with GAAP;


 


(d) Unsecured intercompany
Indebtedness among the Loan Parties;


 


(e) Indebtedness and
obligations owing under Banking Services;


 


(f) [Reserved]


 


(g) Indebtedness in connection
with Sale Leaseback transactions that are permitted by Section 6.12; and


 


(h) Guarantees in respect
of Indebtedness of a Loan Party incurred after the Second Amendment Effective Date, but only to the extent such Indebtedness is
permitted to be incurred pursuant to this Section.


 






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SECTION 6.02. Liens.
The Loan Parties will not, nor will they permit any Subsidiary to, contract, create, incur, assume or permit to exist any Lien
with respect to any of their respective property or assets of any kind (whether real or personal, tangible or intangible), whether
now owned or hereafter acquired, except for the following (the “Permitted Liens”):


 


(a) Liens created by
or otherwise existing under or in connection with this Agreement or the other Loan Documents in favor of the Administrative Agent
on behalf of the Secured Parties;


 


(b) Liens in favor of
a provider of Banking Services in connection with Banking Services; provided that such Liens shall secure the Secured Obligations
on a pari passu basis;


 


(c) [Reserved]


 


(d) Liens for taxes,
assessments, charges or other governmental levies not yet due or as to which the period of grace, if any, related thereto has not
expired or which are being contested in good faith by appropriate proceedings; provided that adequate reserves with respect
to such contested amounts are maintained on the books of any Loan Party or its Subsidiaries, as the case may be, in conformity
with GAAP;


 


(e) statutory Liens such
as carriers’, warehousemen’s, mechanics’, materialmen’s, landlords’, repairmen’s or other like
Liens arising in the ordinary course of business which are not overdue for a period of more than thirty (30) days or which are
being contested in good faith by appropriate proceedings;


 


(f) pledges or deposits
in connection with workers’ compensation, unemployment insurance and other social security legislation (other than any Lien
imposed by ERISA) and deposits securing liability to insurance carriers under insurance or self-insurance arrangements in an aggregate
amount not to exceed $500,000;


 


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


 


(h) easements, rights
of way, restrictions and other similar encumbrances affecting real property which, in the aggregate, are not substantial in amount,
and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the
ordinary conduct of the business of the applicable Person;


 


(i) (i) Liens existing
on the Second Amendment Effective Date and set forth on Schedule 1.01(b); provided that (i) no such Lien shall at
any time be extended to cover property or assets other than the property or assets subject thereto on the Effective Date and improvements
thereon and (ii) the principal amount of the Indebtedness secured by such Lien shall not be extended, renewed, refunded or refinanced;


 


(j) any extension, renewal
or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this definition
(other than Liens in existence on the Second Amendment Effective Date and set forth on Schedule 1.01(b)); provided
that such extension, renewal or replacement Lien shall be limited to all or a part of the property which secured the Lien so extended,
renewed or replaced (plus improvements on such property) and shall not secure additional amounts of Indebtedness;


 






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(k) Liens arising in
the ordinary course of business by virtue of any contractual, statutory or common law provision relating to banker’s Liens,
rights of set-off or similar rights and remedies covering deposit or securities accounts (including funds or other assets credited
thereto) or other funds maintained with a depository institution or securities intermediary;


 


(l) any zoning, building
or similar laws or rights reserved to or vested in any Governmental Authority;


 


(m) restrictions on transfers
of securities imposed by applicable Securities Laws;


 


(n) Liens arising out
of judgments or awards not resulting in an Event of Default;


 


(o) [Reserved]


 


(p) any interest or title
of a lessor, licensor or sublessor under any lease, license or sublease entered into by any Loan Party or any Subsidiary thereof
in the ordinary course of its business and covering only the assets so leased, licensed or subleased but only to the extent such
lease, license or sublease was entered into (i) prior to the Second Amendment Effective Date, (ii) in connection with
the new Restaurants in accordance with the terms of Section 6.05(h) and the other terms of this Agreement and (iii) in connection
with a Sale Leaseback pursuant to Section 6.12;


 


(q) Liens in favor of
the Administrative Agent and/or Issuing Bank to cash collateralize or otherwise secure the obligations of a Defaulting Lender to
fund risk participations hereunder; and


 


(r) assignments of insurance
or condemnation proceeds provided to landlords (or their mortgagees) pursuant to the terms of any lease and Liens or rights reserved
in any lease for rent or for compliance with the terms of such lease.


 


Notwithstanding the foregoing,
if a Loan Party shall grant a Lien on any of its assets in violation of this Section, then it shall be deemed to have simultaneously
granted an equal and ratable Lien on any such assets in favor of the Administrative Agent for the ratable benefit of the Secured
Parties, to the extent such Lien has not already been granted to the Administrative Agent.


 


SECTION 6.03. Nature
of Business. No Loan Party will, nor will it permit any Subsidiary (other than the Excluded Subsidiary) to, alter the character
of its business in any material respect from that conducted as of the Effective Date.


 


SECTION 6.04. Consolidation,
Merger, Sale or Purchase of Assets, etc. The Loan Parties will not, nor will they permit any Subsidiary to,


 


(a) dissolve, liquidate
or wind up its affairs, or sell, transfer, lease or otherwise Dispose of its property or assets or agree to do so at a future time,
except the following, without duplication, shall be expressly permitted:


 


(i) (A) the
sale, transfer, lease or other Disposition of inventory and materials in the ordinary course of business and (B) the conversion
of cash into Cash Equivalents and Cash Equivalents into cash;


 


(ii) the
sale, transfer or other Disposition of property or assets to an unrelated party not in the ordinary course of business where and
to the extent that such sale, transfer or other Disposition is the result of theft, loss, physical destruction or damage, taking
or similar event with respect to any of the Loan Parties or any of their Subsidiaries’ respective property or assets;


 






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(iii) the
sale, lease, transfer or other Disposition of machinery, parts and equipment no longer used or useful in the conduct of the business
of the Loan Parties or any of their Subsidiaries;


 


(iv) the
sale, lease or transfer of property or assets from one Loan Party to another Loan Party or dissolution of any Loan Party (other
than the Borrower) to the extent any and all assets of such Loan Party are distributed to another Loan Party;


 


(v) the termination
of any Swap Agreement;


 


(vi) the
sale, lease, transfer, closure or other Disposition (including, without limitation, refranchising) of Restaurants and real property
related thereto, the termination or non-renewal of leases or the subletting of Restaurants, in each case as determined to be prudent
in the reasonable judgment of the senior officers of the Borrower;


 


(vii) Dispositions
constituting Sale Leaseback transactions that are permitted by Section 6.12; and


 


(viii) any
other sale, lease or other transfer of property or assets to a third party that is not an Affiliate of a Loan Party or any Subsidiary
of a Loan Party;


 


provided that (A) with respect to
clauses (i)(A), (iii), (vi), (vii) and (viii) above, 100% of the consideration received therefor by the Loan Parties or any such
Subsidiary shall be in the form of cash, (B) after giving effect to any Disposition pursuant to clause (vii) above, the Loan Parties
shall be in compliance on a Pro Forma Basis with the financial covenants set forth in Section 5.10 hereof, recalculated for the
most recently ended fiscal quarter for which information is available and (C) with respect to clauses (vii) and (viii) above, no
Default or Event of Default (determined prior to giving effect to any Cure) shall exist or shall result therefrom; provided,
further, that with respect to sales of assets permitted hereunder only, the Administrative Agent shall, without the consent
of any Lender, release its Liens relating to the particular assets sold; or


 


(b) (i) purchase, lease
or otherwise acquire (in a single transaction or a series of related transactions) the property or assets of any Person, other
than (A) the lease or acquisition of real property in connection with Permitted Construction Transactions; (B) except as otherwise
limited or prohibited herein, purchases or other acquisitions of inventory, materials, property and equipment in the ordinary course
of business and (C) Investments permitted by Sections 6.05(f) and 6.05(h) or (ii) enter into any transaction of merger or consolidation.
For the avoidance of doubt, the Loan Parties will not, nor will they permit any Subsidiary to, acquire any Subsidiaries.


 


SECTION 6.05. Advances,
Investments and Loans. The Loan Parties will not, nor will they permit any Subsidiary to, make any Investment or contract to
make any Investment, except for the following (the “Permitted Investments”):


 


(a) cash and Cash Equivalents;


 


(b) Investments existing
as of the Effective Date as set forth on Schedule 1.01(a) (which shall include new Restaurant development);


 






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(c) receivables owing
to the Loan Parties or any of their Subsidiaries or any receivables and advances to suppliers, in each case if created, acquired
or made in the ordinary course of business and payable or dischargeable in accordance with customary trade terms;


 


(d) Investments in and
loans to any Loan Party that is a Loan Party as of the Second Amendment Effective Date and listed on Schedule 3.12;


 


(e) loans and advances
to officers, directors and employees in an aggregate amount not to exceed $200,000 at any time outstanding; provided that
such loans and advances shall comply with all applicable Requirements of Law (including Sarbanes-Oxley);


 


(f) Investments (including
debt obligations) received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of
delinquent obligations of, and other disputes with, customers and suppliers arising in the ordinary course of business;


 


(g) [Reserved]


 


(h) the construction
or development of a new Pollo Tropical Restaurant by any Loan Party; provided, however, that in each such case, (i) at the
time such Loan Party enters into a contract obligating a Loan Party or any of its Subsidiaries to commence construction or develop
a new Pollo Tropical Restaurant (A) no Default shall have occurred and be continuing or would exist after giving effect to
the construction or development of the new Pollo Tropical Restaurant, (B) after giving effect to the construction or development
of such new Pollo Tropical Restaurant on a Pro Forma Basis the Loan Parties are in compliance with each of the financial covenants
set forth in Sections 5.10 and 6.14, (C) the aggregate Revolving Commitments of all Lenders shall be less than or equal to
$95,000,000 and (D) after giving effect to the construction or development of such new Pollo Tropical Restaurant on a Pro
Forma Basis, Liquidity shall be greater than or equal to the sum of $5,000,000 plus the amount of minimum Liquidity required
on such date pursuant to the terms and conditions of Section 5.10(c) (each such construction or development of a new Pollo Tropical
Restaurant permitted pursuant to this clause (h) shall be referred to in this Agreement as a “Permitted Construction Transaction”),
and (ii) (A) no more than one new Pollo Tropical Restaurant prototype may be constructed or developed in fiscal year
2021 and (A) no more than three new Pollo Tropical Restaurant prototypes may be constructed or developed in fiscal year 2022.
For the avoidance of doubt, a Permitted Construction Transaction may only be consummated to the extent the Loan Parties are in
compliance with the maximum Capital Expenditure requirements set forth in Section 6.14; and


 


(i) Banking Services
to the extent permitted hereunder.


 


SECTION 6.06. Transactions
with Affiliates. The Loan Parties will not, nor will they permit any Subsidiary to, enter into any transaction or series of
transactions, whether or not in the ordinary course of business, with any officer, director, shareholder or Affiliate other than
on terms and conditions substantially as favorable as would be obtainable in a comparable arm’s-length transaction with a
Person other than an officer, director, shareholder or Affiliate, other than (a) transactions solely between or among Loan Parties
and (b) any Restricted Payment permitted by Section 6.10.


 


SECTION 6.07. Ownership
of Subsidiaries; Restrictions. The Loan Parties will not, nor will they permit any Subsidiary to, create, form or acquire any
Subsidiaries. The Loan Parties will not sell, transfer, pledge or otherwise dispose of any Equity Interests in any of their Subsidiaries,
nor will they permit any of their Subsidiaries to issue, sell, transfer, pledge or otherwise dispose of any of their Equity Interests.


 






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SECTION 6.08. Corporate
Changes; Material Contracts. No Loan Party will, nor will it permit any of its Subsidiaries to,


 


(a) change its fiscal
quarters or fiscal year,


 


(b) amend, modify or
change its articles of incorporation, certificate of designation (or corporate charter or other similar organizational document)
operating agreement or bylaws (or other similar document), except for any amendments, modifications or other changes (x) made with
the prior written consent of the Administrative Agent (which consent may be withheld, conditioned or delayed in its sole discretion)
and (y) that are not materially adverse to the interests of the Lenders,


 


(c) except as permitted
under Section 6.4, alter its legal existence or, in one transaction or a series of transactions, merge into or consolidate with
any other entity, or Dispose of all or substantially all of its assets or all or substantially all of the Equity Interests of any
of its Subsidiaries (in each case, whether now owned or hereafter acquired),


 


(d) change its state
of incorporation or organization, without (i) (x) the prior written consent of the Administrative Agent (which consent
may be withheld, conditioned or delayed in its sole discretion) and (y) providing thirty (30) days prior written notice to
the Administrative Agent and (ii) filing (or confirming that the Administrative Agent has filed) such financing statements
and amendments to any previously filed financing statements as the Administrative Agent may require,


 


(e) change its registered
legal name, without (i) (x) the prior written consent of the Administrative Agent (which consent may be withheld, conditioned
or delayed in its sole discretion) and (y) providing thirty (30) days prior written notice to the Administrative Agent and
(ii) filing (or confirming that the Administrative Agent has filed) such financing statements and amendments to any previously
filed financing statements as the Administrative Agent may require,


 


(f) amend, modify, cancel
or terminate or fail to renew or extend or permit the amendment, modification, cancellation or termination of any of its Material
Contracts, except for any such actions taken with the prior written consent of the Administrative Agent (which consent may be withheld,
conditioned or delayed in its sole discretion) that are not in any respect materially adverse to the interests of the Lenders,


 


(g) have more than one
state of incorporation, organization or formation,


 


(h) change its accounting
method (except in accordance with GAAP) in any manner that (x) has not been consented to by the Administrative Agent in writing
(which consent may be withheld, conditioned or delayed in its sole discretion) and (y) is adverse to the interests of the
Lenders,


 


(i) amend or modify any
agreement, instrument or other document evidencing any Indebtedness without the prior written consent of the Administrative Agent
(which consent may be withheld, conditioned or delayed in its sole discretion), or


 


(j) consummate a Division
as the Dividing Person, without the prior written consent of Administrative Agent (which consent may be withheld, conditioned or
delayed in its sole discretion). Without limiting the foregoing, if any Loan Party that is a limited liability company consummates
a Division (with or without the prior consent of Administrative Agent as required above), each Division Successor shall be required
to comply with the obligations set forth in Sections 5.11 and 5.13 and the other further assurances obligations set forth in the
Loan Documents and become a Loan Party under this Agreement and the other Loan Documents.


 






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SECTION 6.09. Limitation
on Restricted Actions. The Loan Parties will not, nor will they permit any Subsidiary to, directly or indirectly, create or
otherwise cause or suffer to exist or become effective any encumbrance or restriction on the ability of any such Person to (a) pay
dividends or make any other distributions to any Loan Party on its Equity Interests or with respect to any other interest or participation
in, or measured by, its profits, (b) pay any Indebtedness or other obligation owed to any Loan Party, (c) make loans
or advances to any Loan Party, (d) sell, lease or transfer any of its properties or assets to any Loan Party, or (e) act
as a Guarantor and pledge its assets pursuant to the Loan Documents or any renewals, refinancings, exchanges, refundings or extension
thereof or amend or otherwise modify the Loan Documents, except (in respect of any of the matters referred to in clauses (a)-(d)
above) for such encumbrances or restrictions existing under or by reason of (i) this Agreement and the other Loan Documents,
(ii) applicable law, (iii) any document or instrument governing Indebtedness incurred pursuant to Section 6.01(c) prior
to the Second Amendment Effective Date; provided that any such restriction contained therein relates only to the asset or
assets constructed or acquired in connection therewith, (iv) any Permitted Lien or any document or instrument governing any
Permitted Lien; provided that any such restriction contained therein relates only to the asset or assets subject to such
Permitted Lien.


 


SECTION 6.10. Restricted
Payments. The Loan Parties will not, nor will they permit any Subsidiary to, directly or indirectly, declare, order, make or
set apart any sum for or pay any Restricted Payment, except to make dividends or other distributions payable to the Loan Parties
(directly or indirectly through its Subsidiaries).


 


SECTION 6.11. Reserved.


 


SECTION 6.12. Sale
Leasebacks. The Loan Parties will not, nor will they permit any Subsidiary to, directly or indirectly, become or remain liable
as lessee or as guarantor or other surety with respect to any lease, whether an Operating Lease or a Capital Lease, of any property
(whether real, personal or mixed), whether now owned or hereafter acquired, (a) which any Loan Party or any Subsidiary has
sold or transferred or is to sell or transfer to a Person which is not a Loan Party or a Subsidiary of a Loan Party or (b) which
any Loan Party or any Subsidiary of a Loan Party intends to use for substantially the same purpose as any other property which
has been sold or is to be sold or transferred by a Loan Party or a Subsidiary of a Loan Party to another Person which is not a
Loan Party or a Subsidiary of a Loan Party in connection with such lease (each a “Sale Leaseback”); provided,
that the Loan Parties may enter into Sale Leasebacks for properties listed on Schedule 1.01(e), so long as, (i) no Default
or Event of Default (determined prior to giving effect to any Cure) shall exist or shall result therefrom, (ii) each sale,
transfer or other disposition of any property in connection with a Sale Leaseback is for 100% cash proceeds paid immediately and
concurrently with the receipt of such proceeds, (iii) on each occasion when any proceeds are received by or on behalf of any
Loan Party or any Subsidiary in respect of any sale, transfer or other disposition of any property in connection with a Sale Leaseback,
the Borrower, immediately after such proceeds are received by any Loan Party or Subsidiary, prepays the Obligations and cash collateralizes
the LC Exposure as set forth in Section 2.09 in an aggregate amount equal to (x) during the Amendment Period, 100% of all
Net Proceeds from such sale, transfer or other Disposition made in connection with a Sale Leaseback transaction and (y) after
the termination of the Amendment Period, not less than 50% of all Net Proceeds from such sale, transfer or other Disposition made
in connection with a Sale Leaseback transaction, (iv) the Net Proceeds received in connection with such sale, transfer or
other Disposition made in connection with a Sale Leaseback transaction shall equal or exceed 25% over the product of eight (8)
multiplied by the average straight-line rent during the rental period, (v) not (x) less than ten (10) days, or (y) more
than 30 days, prior to the consummation of such Sale Leaseback (or such greater or lesser period of time agreed to by the Administrative
Agent in writing), the Borrower provides the Administrative Agent prior written notice of such Sale Leaseback, and (vi) as
soon as available, but not more than five (5) Business Days after the consummation of such Sale Leaseback (or such longer period
of time agreed to by the Administrative Agent in writing), the Borrower provides the Administrative Agent (A) evidence demonstrating
compliance with clause (iv) of this proviso, in form, substance and detail satisfactory to the Administrative Agent and (B) copies
of all purchase and sale agreements and leases (including all schedules, exhibits, annexes and supplements) and all other documentation
executed in connection with the applicable Sale Leaseback, and all other business and financial information or other items reasonably
requested by the Administrative Agent.


 






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SECTION 6.13. No
Further Negative Pledges. The Loan Parties will not, nor will they permit any Subsidiary to, enter into, assume or become subject
to any agreement prohibiting or otherwise restricting the creation or assumption of any Lien upon any of their properties or assets,
whether now owned or hereafter acquired, or requiring the grant of any security for such obligation if security is given for some
other obligation, except pursuant to this Agreement and the other Loan Documents. For the avoidance of doubt, any negative pledge
in existence on the Second Amendment Effective Date (but not granted in anticipation thereof) is permitted to exist.


 


SECTION 6.14. Maximum
Capital Expenditures. The Borrower will not, nor will it permit any Subsidiary to, incur or make Capital Expenditures during
any fiscal year set forth below in an aggregate amount for the Borrower and its Subsidiaries that exceeds the amount set forth
opposite such fiscal year:


 


	Period	 	Maximum 
Capital Expenditures	 
	Fiscal year 2020	 	$	22,000,000	 
	Fiscal year 2021	 	$	22,000,000	 
	Fiscal year 2022	 	$	25,000,000	 



 


ARTICLE VII



Events of Default


 


SECTION 7.01. Events
of Default. If any of the following events (“Events of Default”) shall occur:


 


(a) Payment. (i)
The Borrower shall fail to pay any principal on any Revolving Loan or Revolving Loan Note when due (whether at maturity, by reason
of acceleration or otherwise) in accordance with the terms hereof or thereof; or (ii) the Borrower shall fail to reimburse the
Issuing Bank for any LC Exposure when due (whether at maturity, by reason of acceleration or otherwise) in accordance with the
terms hereof; (iii) the Borrower shall fail to provide cash collateral when required pursuant to Section 2.04(j); or (iv) the Borrower
shall fail to pay any interest on any Revolving Loan or any fee or other amount payable hereunder when due (whether at maturity,
by reason of acceleration or otherwise) in accordance with the terms hereof and such failure shall continue unremedied for five
(5) days; or (v) or any Guarantor shall fail to pay on the Loan Guaranty or the Obligation Guaranty in respect of any of the foregoing
or in respect of any other Guarantees hereunder (after giving effect to the grace period in clause (iii)); or


 


(b) Misrepresentation.
Any representation or warranty made or deemed made herein, in the Collateral Documents or in any of the other Loan Documents or
which is contained in any certificate, document or financial or other statement furnished at any time under or in connection with
this Agreement shall prove to have been incorrect, false or misleading in any material respect on or as of the date made or deemed
made; or


 






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(c) Covenant Default.


 


(i) Any Loan
Party shall fail to perform, comply with or observe any term, covenant or agreement applicable to it contained in Sections 5.01,
5.02(a), 5.02(b), 5.04 (to the extent such covenant requires that the Loan Parties and their Subsidiaries preserve, renew and keep
in full force and effect their corporate or other formative existence), 5.07, 5.08, 5.10, 5.14, 5.17, 5.19, 5.20, 5.21 or Article
VI hereof; or


 


(ii) Any
Loan Party shall fail to comply with any other covenant contained in this Agreement or the other Loan Documents or any other agreement,
document or instrument among any Loan Party, the Administrative Agent and the Lenders or executed by any Loan Party in favor of
the Administrative Agent or the Lenders (other than as described in Sections 7.01(a) or 7.01(c)(i) above) and, with respect to
this clause (ii) only, such breach or failure to comply is not cured within thirty (30) days of its occurrence; or


 


(d) Indebtedness Cross-Default.
(i) Any Loan Party or any of its Subsidiaries shall default in any payment of principal of or interest on any Indebtedness (other
than the Loans, the reimbursement obligations of the Borrower for the LC Exposure, the Loan Guaranty, ASC 840-40 lease financing
obligations and Swap Agreements entered into in the ordinary course of business in order to manage existing or anticipated commodity
price risks) in a principal amount outstanding of at least $5,000,000 for the Loan Parties and any of their Subsidiaries in the
aggregate beyond any applicable grace period (not to exceed thirty (30) days), if any, provided in the instrument or agreement
under which such Indebtedness was created; or (ii) any Loan Party or any of its Subsidiaries shall default in the observance or
performance of any other agreement or condition relating to any Indebtedness (other than the Loans, the reimbursement obligations
of the Borrower for the LC Exposure, the Loan Guaranty, ASC 840-40 lease financing obligations and Swap Agreements entered into
in the ordinary course of business in order to manage existing or anticipated commodity price risks) in a principal amount outstanding
of at least $5,000,000 in the aggregate for the Loan Parties and their Subsidiaries or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other
event or condition is to cause, or to permit the holder or holders of such Indebtedness or beneficiary or beneficiaries of such
Indebtedness (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving
of notice if required, such Indebtedness to become due prior to its stated maturity or to be repurchased, prepaid, deferred or
redeemed (automatically or otherwise); or (iii) any Loan Party or any of its Subsidiaries shall breach or default any Swap Agreement
that is a Swap Agreement Obligation; or


 


(e) Other Cross-Defaults.
The Loan Parties or any of their Subsidiaries shall default in (i) the payment when due under any Material Contract or (ii) the
performance or observance, of any obligation or condition of any Material Contract and, in the case of this clause (ii) only, such
failure to perform or observe such other obligation or condition continues unremedied for a period of thirty (30) days after notice
of the occurrence of such default unless, but only as long as, the existence of any such default is being contested by the Loan
Parties in good faith by appropriate proceedings and adequate reserves in respect thereof have been established on the books of
the Loan Parties to the extent required by GAAP except where such default could not be reasonably expected to have a Material adverse
Effect; or


 






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(f) Bankruptcy Default.
(i) A Loan Party or any of its Subsidiaries shall commence any case, proceeding or other action (A) under any existing or future
law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking
to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or
(B) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial
part of its assets, or a Loan Party or any of its Subsidiaries shall make a general assignment for the benefit of its creditors;
or (ii) there shall be commenced against a Loan Party or any of its Subsidiaries any case, proceeding or other action of a nature
referred to in clause (i) above which (A) results in the entry of an order for relief or any such adjudication or appointment or
(B) remains undismissed, undischarged or unbonded for a period of sixty (60) days; or (iii) there shall be commenced against a
Loan Party or any of its Subsidiaries any case, proceeding or other action seeking issuance of a warrant of attachment, execution,
distraint or similar process against all or any substantial part of their assets which results in the entry of an order for any
such relief which shall not have been vacated, discharged, or stayed or bonded pending appeal within sixty (60) days from the entry
thereof; or (iv) a Loan Party or any of its Subsidiaries shall take any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v) a Loan Party or any of its
Subsidiaries shall generally not, or shall be unable to, or shall admit in writing their inability to, pay its debts as they become
due; or


 


(g) Judgment Default.
(i) One or more judgments or decrees shall be entered against a Loan Party or any of its Subsidiaries involving in the aggregate
a liability (to the extent not covered by insurance) of $5,000,000 or more and all such judgments or decrees shall not have been
paid and satisfied, vacated, discharged, stayed or bonded pending appeal within the earlier of (A) thirty (30) days from the entry
thereof or (B) the expiration of the period during which an appeal of such judgment or decree is permitted or (ii) any injunction,
temporary restraining order or similar decree shall be issued against a Loan Party or any of its Subsidiaries that, individually
or in the aggregate, could result in a Material Adverse Effect; or


 


(h) ERISA Default.
An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events
that have occurred, could reasonably be expected to result in a Material Adverse Effect; or


 


(i) Change in Control.
There shall occur a Change in Control; or


 


(j) Invalidity of
Guaranty. At any time after the execution and delivery thereof, the Loan Guaranty or any Obligation Guaranty, for any reason
other than the satisfaction in full of all Secured Obligations, shall cease to be in full force and effect (other than in accordance
with its terms) or shall be declared to be null and void, or any Loan Party shall contest the validity, enforceability, perfection
or priority of the Loan Guaranty, any Loan Document, or any Lien granted thereunder in writing or deny in writing that it has any
further liability, including with respect to future advances by the Lenders, under any Loan Document to which it is a party; or


 


(k) Invalidity of
Loan Documents. Any Loan Document shall fail to be in full force and effect or to give the Administrative Agent and/or the
Lenders the security interests, liens, rights, powers, priority and privileges purported to be created thereby (except as such
documents may be terminated or no longer in force and effect in accordance with the terms thereof, other than those indemnities
and provisions which by their terms shall survive) or any Lien shall fail to be a first priority, perfected Lien on a material
portion of the Collateral; or


 


(l) Reserved;
or


 






    CREDIT AGREEMENT – Page 90


     


    

 


(m) Classification
as Senior Debt. The Secured Obligations shall cease to be classified as “Senior Indebtedness,” “Designated
Senior Indebtedness” or any similar designation under any Indebtedness instrument; or


 


(n) Uninsured Loss.
Any uninsured damage to or loss, theft or destruction of any assets of the Loan Parties or any of their Subsidiaries shall occur
that is in excess of $5,000,000 (excluding customary deductible thresholds established in accordance with historical past practices);


 


then, and in every such event (other than
an event with respect to the Borrower described in clause (f) of this Article), and at any time thereafter during the continuance
of such event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Borrower, take
either or both of the following actions, at the same or different times: (i) terminate the Commitments whereupon the Commitments
shall terminate immediately, (ii) declare the Loans then outstanding to be due and payable in whole (or in part, in which
case any principal not so declared to be due and payable may thereafter be declared to be due and payable), whereupon the principal
of the Loans so declared to be due and payable, together with accrued interest thereon and all fees (including for the avoidance
of doubt, any break funding payments) and other obligations of the Borrower accrued hereunder, shall become due and payable immediately,
in each case without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower,
and (iii) require cash collateral for the LC Exposure in accordance with Section 2.04(j) hereof; and in the case of any event with
respect to the Borrower described in clause (f) of this Article, the Commitments shall automatically terminate and the principal
of the Loans then outstanding, and cash collateral for the LC Exposure, together with accrued interest thereon and all fees (including,
for the avoidance of doubt, any break funding payments) and other obligations of the Borrower accrued hereunder and under any other
Loan Document, shall automatically become due and payable, in each case without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrower. Upon the occurrence and during the continuance of an Event of Default,
the Administrative Agent may, and at the request of the Required Lenders shall, increase the rate of interest applicable to the
Loans and other Obligations as set forth in this Agreement and exercise any rights and remedies provided to the Administrative
Agent under the Loan Documents or at law or equity, including all remedies provided under the UCC.


 


SECTION 7.02. Right
to Cure. Notwithstanding anything to the contrary contained in Section 7.01, after the expiration of the Amendment Period,
in the event of any Event of Default under a covenant set forth in Sections 5.10(a) or 5.10(b) (the “Specified Covenants”)
for any fiscal quarter end of the Borrower ended after the expiration of the Amendment Period (the “Specified Quarter
End”), then from the date that the Compliance Certificate for calculating compliance with Sections 5.10(a) and 5.10(b)
is required to be delivered pursuant to Section 5.02(a) for such Specified Quarter End until the expiration of the tenth Business
Day thereafter (the “Cure Period”), and only so long as there exists no other Event of Default that is continuing,
the Borrower shall be permitted to cure such failure to comply (each such action taken in accordance with the terms of this Section 7.02,
a “Cure”) by increasing Consolidated EBITDAR (in accordance with the definition thereof) for the fiscal quarter
ending on the Specified Quarter End (the “Specified Fiscal Quarter”) by an amount equal to the Cure Amount (as
defined below) that was received in cash by the Borrower from a Specified Equity Issuance during the Cure Period; provided that,
in each case, each of the following conditions and terms has been satisfied:


 


(a) not less than 50%
of the Net Proceeds from a Specified Equity Issuance shall have been immediately used to prepay the Obligations and cash collateralize
the LC Exposure in accordance with the terms of Section 2.09, with an automatic and concurrent reduction of the aggregate
Commitments of all Lenders by not less than such amount (the amount of such Net Proceeds that satisfy each of the preceding, the
“Cure Amount”);


 






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(b) no Cure may be effected
by any amount greater than the amount of Net Proceeds of a Specified Equity Issuance received by the Borrower during a Cure Period
that were used to prepay the Obligations and cash collateralize the LC Exposure in accordance with the terms of Section 2.09;


 


(c) no Cure may be effected
by any amount greater than the amount of Net Proceeds of a Specified Equity Issuance received by the Borrower during a Cure Period
that were used to automatically and permanently reduce the aggregate Commitments of the Lenders;


 


(d) no Cure Amount may
be greater than $5,000,000 in any fiscal quarter;


 


(e) when aggregated with
all other Cure Amounts for all Cures made during the term of this Agreement, no Cure Amount shall cause such sum to be greater
than $15,000,000;


 


(f) at the time of such
Cure, no Event of Default (other than any Event of Default under the Specified Covenants) may exist and be continuing;


 


(g) no Specified Equity
Issuance may result in or cause a Change in Control;


 


(h) each increase to
Consolidated EBITDAR from a Cure shall be calculated in accordance with the definition of Consolidated EBITDAR; and


 


(i) no Cure is permitted
under this Agreement if the Compliance Certificate for the Specified Fiscal Quarter is not timely delivered to the Administrative
Agent and Lenders in accordance with the terms of Section 5.02(a).


 


The Borrower will give written notice to
the Administrative Agent and Lenders of the Borrower’s intent to effectuate a Cure prior to its delivery to the Administrative
Agent and Lenders of the Compliance Certificate as required by Section 5.02(a) for the Specified Quarter End. Such notice
shall be irrevocable and will identify the Specified Covenant or Specified Covenants requiring Cure, and the Specified Quarter
End, the amount of the Cure and such other information requested by the Administrative Agent in reasonable detail.


 


Any and each increase
to Consolidated EBITDAR as a result of the provisions of this Section 7.02 for any Specified Fiscal Quarter will remain included
in Consolidated EBITDAR for each determination of Consolidated EBITDAR under this Agreement that includes such Specified Fiscal
Quarter in accordance with the definition of Consolidated EBITDAR. If, after giving effect to a recalculation of the Specified
Covenants giving effect to the Cure, the Borrower shall then be in compliance with the requirements of the Specified Covenants,
as applicable, the Borrower shall, prior to the end of the Cure Period, deliver to the Administrative Agent and Lenders a recalculated
Compliance Certificate for the periods ending on the Specified Quarter End demonstrating compliance with the Specified Covenants
and certifying that there exists no other Event of Default. Upon such delivery, the Borrower shall be deemed to have satisfied
the requirements of Sections 5.10(a) and 5.10(b), as of the Specified Quarter End with the same effect as though there had
been no failure to comply therewith on such date, and the applicable breach or default of any such covenant that had occurred shall
be deemed cured for purposes of this Agreement and the other Loan Documents.


 






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ARTICLE VIII



The Administrative Agent


 


SECTION 8.01. Appointment.
Each of the Lenders, on behalf of itself and any of its Affiliates that are Secured Parties and the Issuing Bank hereby irrevocably
appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf, including
execution of the other Loan Documents, and to exercise such powers as are delegated to the Administrative Agent by the terms of
the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required
under the laws of any jurisdiction other than the U.S., each of the Lenders and the Issuing Bank hereby grants to the Administrative
Agent any required powers of attorney to execute any Collateral Document governed by the laws of such jurisdiction on such Lender’s
or Issuing Bank’s behalf. The provisions of this Article are solely for the benefit of the Administrative Agent and the Lenders
(including the Issuing Bank), and the Loan Parties shall not have rights as a third party beneficiary of any of such provisions.
It is understood and agreed that the use of the term “agent” as used herein or in any other Loan Documents (or any
similar term) with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express)
obligations arising under agency doctrine of any applicable law. Instead, such term is used as a matter of market custom, and is
intended to create or reflect only an administrative relationship between independent contracting parties.


 


SECTION 8.02. Rights
as a Lender. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as
a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates
may accept deposits from, lend money to and generally engage in any kind of business with any Loan Party or any Subsidiary or any
Affiliate thereof as if it were not the Administrative Agent hereunder.


 


SECTION 8.03. Duties
and Obligations. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the
Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any
fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative
Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights
and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise as directed in writing
by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided
in Section 9.02), and, (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty
to disclose, and shall not be liable for the failure to disclose, any information relating to any Loan Party or any Subsidiary
that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative
Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or
such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02)
or in the absence of its own gross negligence or willful misconduct as determined by a final nonappealable judgment of a court
of competent jurisdiction. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written
notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible
for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with
any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with
any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set
forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other
agreement, instrument or document, (v) the creation, perfection or priority of Liens on the Collateral or the existence of
the Collateral, or (vi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document,
other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.


 






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SECTION 8.04. Reliance.
The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or
sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed
by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult
with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not
be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.


 


SECTION 8.05. Actions
through Sub-Agents. The Administrative Agent may perform any and all of its duties and exercise its rights and powers by or
through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform
any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions
of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such
sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided
for herein as well as activities as the Administrative Agent.


 


SECTION 8.06. Resignation.
Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative
Agent may resign at any time by notifying the Lenders, the Issuing Bank and the Borrower. Upon any such resignation, the Required
Lenders shall have the right, in consultation with the Borrower, to appoint a successor. If no successor shall have been so appointed
by the Required Lenders and shall have accepted such appointment within thirty (30) days after the retiring Administrative
Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Bank,
appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such
bank. Upon the acceptance of its appointment as Administrative Agent hereunder by its successor, such successor shall succeed to
and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the
Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor, unless otherwise agreed by
the Borrower and such successor. Notwithstanding the foregoing, in the event no successor Administrative Agent shall have been
so appointed and shall have accepted such appointment within thirty (30) days after the retiring Administrative Agent gives notice
of its intent to resign, the retiring Administrative Agent may give notice of the effectiveness of its resignation to the Lenders,
the Issuing Banks and the Borrower, whereupon, on the date of effectiveness of such resignation stated in such notice, (a) the
retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents,
provided that, solely for purposes of maintaining any security interest granted to the Administrative Agent under any Collateral
Document for the benefit of the Secured Parties, the retiring Administrative Agent shall continue to be vested with such security
interest as collateral agent for the benefit of the Secured Parties and, in the case of any Collateral in the possession of the
Administrative Agent, shall continue to hold such Collateral, in each case until such time as a successor Administrative Agent
is appointed and accepts such appointment in accordance with this paragraph (it being understood and agreed that the retiring Administrative
Agent shall have no duty or obligation to take any further action under any Collateral Document, including any action required
to maintain the perfection of any such security interest), and (b) the Required Lenders shall succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative Agent, provided that (i) all payments required
to be made hereunder or under any other Loan Document to the Administrative Agent for the account of any Person other than the
Administrative Agent shall be made directly to such Person and (ii) all notices and other communications required or contemplated
to be given or made to the Administrative Agent shall also directly be given or made to each Lender and each Issuing Bank. Following
the effectiveness of the Administrative Agent’s resignation from its capacity as such, the provisions of this Article, Section
2.15(d) and Section 9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other
Loan Document, shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective
Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent
and in respect of the matters referred to in the proviso under clause (a) above.


 






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SECTION 8.07. Non-Reliance.


 


(a) Each Lender acknowledges
and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not investments in a business
enterprise or securities. Each Lender further represents that it is engaged in making, acquiring or holding commercial loans in
the ordinary course of its business and has, independently and without reliance upon the Administrative Agent, any arranger of
this credit facility or any amendment thereto or any other Lender and their respective Related Parties and based on such documents
and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement as a Lender,
and to make, acquire or hold Loans hereunder. Each Lender shall, independently and without reliance upon the Administrative Agent,
any arranger of this credit facility or any amendment thereto or any other Lender and their respective Related Parties and based
on such documents and information (which may contain material, non-public information within the meaning of the U.S. securities
laws concerning the Borrower and its Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions
in taking or not taking action under or based upon this Agreement, any other Loan Document, any related agreement or any document
furnished hereunder or thereunder and in deciding whether or to the extent to which it will continue as a Lender or assign or otherwise
transfer its rights, interests and obligations hereunder.


 


(b) Each Lender hereby
agrees that (i) it has requested a copy of each Report prepared by or on behalf of the Administrative Agent; (ii) the Administrative
Agent (A) makes no representation or warranty, express or implied, as to the completeness or accuracy of any Report or any of the
information contained therein or any inaccuracy or omission contained in or relating to a Report and (B) shall not be liable for
any information contained in any Report; (iii) the Reports are not comprehensive audits or examinations, and that any Person performing
any field examination will inspect only specific information regarding the Loan Parties and will rely significantly upon the Loan
Parties’ books and records, as well as on representations of the Loan Parties’ personnel and that the Administrative
Agent undertakes no obligation to update, correct or supplement the Reports; (iv) it will keep all Reports confidential and strictly
for its internal use, not share the Report with any Loan Party or any other Person except as otherwise permitted pursuant to this
Agreement; and (v) without limiting the generality of any other indemnification provision contained in this Agreement, (A)
it will hold the Administrative Agent and any such other Person preparing a Report harmless from any action the indemnifying Lender
may take or conclusion the indemnifying Lender may reach or draw from any Report in connection with any extension of credit that
the indemnifying Lender has made or may make to the Borrower, or the indemnifying Lender’s participation in, or the indemnifying
Lender’s purchase of, a Loan or Loans; and (B) it will pay and protect, and indemnify, defend, and hold the Administrative
Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs,
expenses, and other amounts (including reasonable attorneys’ fees) incurred by the Administrative Agent or any such other
Person 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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SECTION 8.08. Other
Agency Titles. The Joint Lead Arrangers shall not have any right, power, obligation, liability, responsibility or duty under
this Agreement other than those applicable to all Lenders as such. Without limiting the foregoing, none of such Lenders shall have
or be deemed to have a fiduciary relationship with any Lender. Each Lender hereby makes the same acknowledgments with respect to
the relevant Lenders in their respective capacities as Joint Lead Arrangers, as applicable, as it makes with respect to the Administrative
Agent in the preceding paragraph.


 


SECTION 8.09. Not
Partners or Co-Venturers; Administrative Agent as Representative of the Secured Parties. (a)The Lenders are not partners or
co-venturers, and no Lender shall be liable for the acts or omissions of, or (except as otherwise set forth herein in case of the
Administrative Agent) authorized to act for, any other Lender. The Administrative Agent shall have the exclusive right on behalf
of the Lenders to enforce the payment of the principal of and interest on any Loan after the date such principal or interest has
become due and payable pursuant to the terms of this Agreement.


 


(b) In its capacity,
the Administrative Agent is a “representative” of the Secured Parties within the meaning of the term “secured
party” as defined in the UCC. Each Lender authorizes the Administrative Agent to enter into each of the Collateral Documents
to which it is a party and to take all action contemplated by such documents. Each Lender agrees that no Secured Party (other than
the Administrative Agent) shall have the right individually to seek to realize upon the security granted by any Collateral Document,
it being understood and agreed that such rights and remedies may be exercised solely by the Administrative Agent for the benefit
of the Secured Parties upon the terms of the Collateral Documents. In the event that any Collateral is hereafter pledged by any
Person as collateral security for the Secured Obligations, the Administrative Agent is hereby authorized, and hereby granted a
power of attorney, to execute and deliver on behalf of the Secured Parties any Loan Documents necessary or appropriate to grant
and perfect a Lien on such Collateral in favor of the Administrative Agent on behalf of the Secured Parties.


 


SECTION 8.10. Credit
Bidding. The Secured Parties hereby irrevocably authorize the Administrative Agent, at the direction of the Required Lenders,
to credit bid all or any portion of the Obligations (including by accepting some or all of the Collateral in satisfaction of some
or all of the Obligations pursuant to a deed in lieu of foreclosure or otherwise) and in such manner purchase (either directly
or through one or more acquisition vehicles) all or any portion of the Collateral (a) at any sale thereof conducted under the provisions
of the Bankruptcy Code, including under Sections 363, 1123 or 1129 of the Bankruptcy Code, or any similar laws in any other jurisdictions
to which a Credit Party is subject, or (b) at any other sale, foreclosure or acceptance of collateral in lieu of debt conducted
by (or with the consent or at the direction of) the Administrative Agent (whether by judicial action or otherwise) in accordance
with any applicable law. In connection with any such credit bid and purchase, the Obligations owed to the Secured Parties shall
be entitled to be, and shall be, credit bid by the Administrative Agent at the direction of the Required Lenders on a ratable basis
(with Obligations with respect to contingent or unliquidated claims receiving contingent interests in the acquired assets on a
ratable basis that shall vest upon the liquidation of such claims in an amount proportional to the liquidated portion of the contingent
claim amount used in allocating the contingent interests) for the asset or assets so purchased (or for the equity interests or
debt instruments of the acquisition vehicle or vehicles that are issued in connection with such purchase). In connection with any
such bid (i) the Administrative Agent shall be authorized to form one or more acquisition vehicles and to assign any successful
credit bid to such acquisition vehicle or vehicles (ii) each of the Secured Parties’ ratable interests in the Obligations
which were credit bid shall be deemed without any further action under this Agreement to be assigned to such vehicle or vehicles
for the purpose of closing such sale, (iii) the Administrative Agent shall be authorized to adopt documents providing for the governance
of the acquisition vehicle or vehicles (provided that any actions by the Administrative Agent with respect to such acquisition
vehicle or vehicles, including any disposition of the assets or equity interests thereof, shall be governed, directly or indirectly,
by, and the governing documents shall provide for, control by the vote of the Required Lenders or their permitted assignees under
the terms of this Agreement or the governing documents of the applicable acquisition vehicle or vehicles, as the case may be, irrespective
of the termination of this Agreement and without giving effect to the limitations on actions by the Required Lenders contained
in Section 9.02 of this Agreement), (iv) the Administrative Agent on behalf of such acquisition vehicle or vehicles shall be authorized
to issue to each of the Secured Parties, ratably on account of the relevant Obligations which were credit bid, interests, whether
as equity, partnership, limited partnership interests or membership interests, in any such acquisition vehicle and/or debt instruments
issued by such acquisition vehicle, all without the need for any Secured Party or acquisition vehicle to take any further action,
and (v) to the extent that Obligations that are assigned to an acquisition vehicle are not used to acquire Collateral for any reason
(as a result of another bid being higher or better, because the amount of Obligations assigned to the acquisition vehicle exceeds
the amount of Obligations credit bid by the acquisition vehicle or otherwise), such Obligations shall automatically be reassigned
to the Secured Parties pro rata and the equity interests and/or debt instruments issued by any acquisition vehicle on account of
such Obligations shall automatically be cancelled, without the need for any Secured Party or any acquisition vehicle to take any
further action. Notwithstanding that the ratable portion of the Obligations of each Secured Party are deemed assigned to the acquisition
vehicle or vehicles as set forth in clause (ii) above, each Secured Party shall execute such documents and provide such information
regarding the Secured Party (and/or any designee of the Secured Party which will receive interests in or debt instruments issued
by such acquisition vehicle) as the Administrative Agent may reasonably request in connection with the formation of any acquisition
vehicle, the formulation or submission of any credit bid or the consummation of the transactions contemplated by such credit bid.


 






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ARTICLE IX



Miscellaneous


 


SECTION 9.01. Notices.


 


(a) Except in the case
of notices and other communications expressly permitted to be given by telephone or Electronic Systems (and subject in each case
to paragraph (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by
hand or overnight courier service, mailed by certified or registered mail or sent by fax, as follows:


 


(i) if to
any Loan Party, to it in care of the Borrower at:


 


Fiesta Restaurant Group, Inc.

14800 Landmark Boulevard, Suite 500

Dallas, Texas 75254

Attention: Chief Financial Officer

Telephone: (972) 702-9300

Fax: (972) 702-9305

Email: dimontgomery@frgi.com


 


(ii) if to
the Administrative Agent or Chase in its capacity as an Issuing Bank, to JPMorgan Chase Bank, N. A. at:


 


JPMorgan Chase Bank, N. A.


Middle Market Servicing


10 South Dearborn, Floor L2


Suite IL1-0480


Chicago, IL, 60603-2300


Attention: Stacy Slaton


jpm.agency.cri@jpmorgan.com


 






    CREDIT AGREEMENT – Page 97


     


    

 


With a copy to:


stacy.l.slaton@jpmorgan.com


 


With a copy to:


 


JPMorgan Chase Bank, N. A.


2200 Ross Avenue, 8th Floor


Dallas, Texas 75201


Attention: Logan Lanier


Email: logan.lanier@chase.com


 


JPMorgan Chase Bank, N. A.


10 South Dearborn Street


Chicago, Illinois 60603


Attention: Gerri King


Email: gerri.king@chase.com


 


(iii) if
to any other Lender or Issuing Bank, to it at its address or fax number set forth in its Administrative Questionnaire.


 


All such notices and other communications
(i) sent by hand or overnight courier service, or mailed by certified or registered mail shall be deemed to have been given when
received, (ii) sent by fax shall be deemed to have been given when sent, provided that if not given during normal business
hours for the recipient, such notice or communication shall be deemed to have been given at the opening of business on the next
Business Day of the recipient, or (iii) delivered through Electronic Systems to the extent provided in paragraph (b) below shall
be effective as provided in such paragraph.


 


(b) Notices and other
communications to the Lenders hereunder may be delivered or furnished by Electronic Systems pursuant to procedures approved by
the Administrative Agent; provided that the foregoing shall not apply to notices pursuant to Article II or to compliance
and no Default certificates delivered pursuant to Sections 5.01 and 5.02 unless otherwise agreed by the Administrative Agent and
the applicable Lender. Each of the Administrative Agent and the Borrower (on behalf of the Loan Parties) may, in its discretion,
agree to accept notices and other communications to it hereunder by Electronic Systems pursuant to procedures approved by it; provided
that approval of such procedures may be limited to particular notices or communications. Unless the Administrative Agent otherwise
proscribes, all such notices and other communications (i) sent to an e-mail address shall be deemed received upon the sender’s
receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available,
return e-mail or other written acknowledgement), provided that if not given during the normal business hours of the recipient,
such notice or communication shall be deemed to have been given at the opening of business on the next Business Day for the recipient,
and (ii) posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient,
at its e-mail address as described in the foregoing clause (i), of notification that such notice or communication is available
and identifying the website address therefor; provided that, for both clauses (i) and (ii) above, if such notice, e-mail
or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed
to have been sent at the opening of business on the next Business Day of the recipient.


 






    CREDIT AGREEMENT – Page 98


     


    

 


(c) Any party hereto
may change its address, facsimile number or e-mail address for notices and other communications hereunder by notice to the other
parties hereto.


 


(d) Electronic Systems.


 


(i) Each
Loan Party agrees that the Administrative Agent may, but shall not be obligated to, make Communications (as defined below) available
to the Issuing Bank and the other Lenders by posting the Communications on Debt Domain, Intralinks, Syndtrak, ClearPar or a substantially
similar Electronic System.


 


(ii) Any
Electronic System used by the Administrative Agent is provided “as is” and “as available.” The Agent Parties
(as defined below) do not warrant the adequacy of such Electronic Systems and expressly disclaim liability for errors or omissions
in the Communications. No warranty of any kind, express, implied or statutory, including any warranty of merchantability, fitness
for a particular purpose, non-infringement of third-party rights or freedom from viruses or other code defects, is made by any
Agent Party in connection with the Communications or any Electronic System. In no event shall the Administrative Agent or any of
its Related Parties (collectively, the “Agent Parties”) have any liability to the Borrower or the other Loan
Parties, any Lender, the Issuing Bank or any other Person or entity 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 the Borrower’s,
any Loan Party’s or the Administrative Agent’s transmission of communications through an Electronic System. “Communications”
means, collectively, any notice, demand, communication, information, document or other material provided by or on behalf of any
Loan Party pursuant to any Loan Document or the transactions contemplated therein which is distributed by the Administrative Agent,
any Lender or the Issuing Bank by means of electronic communications pursuant to this Section, including through an Electronic
System.


 


SECTION 9.02. Waivers;
Amendments.


 


(a) No failure or delay
by the Administrative Agent, the Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan
Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment
or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of
any other right or power. The rights and remedies of the Administrative Agent, the Issuing Bank and the Lenders hereunder and under
any other Loan Document are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver
of any provision of any Loan Document or consent to any departure by any Loan Party therefrom shall in any event be effective unless
the same shall be permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or
issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent,
any Lender or the Issuing Bank may have had notice or knowledge of such Default at the time.


 






    CREDIT AGREEMENT – Page 99


     


    

 


(b) Subject to Section
2.12(c) and (d), neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended
or modified except (i) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrower
and the Required Lenders or (ii) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered
into by the Administrative Agent and the Loan Party or Loan Parties that are parties thereto, with the consent of the Required
Lenders; provided that no such agreement shall (A) increase the Commitment of any Lender without the written consent of
such Lender (including any such Lender that is a Defaulting Lender), (B) reduce or forgive the principal amount of any Loan or
LC Disbursement or reduce the rate of interest thereon, or reduce or forgive any interest or fees payable hereunder, without the
written consent of each Lender (including any such Lender that is a Defaulting Lender) directly affected thereby (except that any
amendment or modification of the financial covenants in this Agreement (or defined terms used in the financial covenants in this
Agreement) shall not constitute a reduction in the rate of interest or fees for purposes of this clause (B)), (C) postpone any
scheduled date of payment of the principal amount of any Loan or LC Disbursement, or any date for the payment of any interest,
fees or other Obligations payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled
date of expiration of any Commitment, without the written consent of each Lender (including any such Lender that is a Defaulting
Lender) directly affected thereby, (D) change Section 2.16(b) or (d) in a manner that would alter the manner in which payments
are shared, without the written consent of each Lender (other than any Defaulting Lender), (E) change any of the provisions
of this Section or the definition of “Required Lenders” or any other provision of any Loan Document specifying the
number or percentage of Lenders required to waive, amend or modify any rights thereunder or make any determination or grant any
consent thereunder, without the written consent of each Lender (other than any Defaulting Lender) directly affected thereby, (F)
change Section 2.18, without the consent of each Lender (other than any Defaulting Lender), (G) release the Borrower or all or
substantially all of the value of the Loan Guaranty, without the written consent of all of the Lenders; provided that the
Administrative Agent may release any Guarantor permitted to be released pursuant to the terms of this Agreement (except as otherwise
permitted herein or in the other Loan Documents), without the written consent of each Lender (other than any Defaulting Lender),
or (H) except as provided in clause (c) of this Section or in any Collateral Document, release all or substantially all of the
Collateral without the written consent of each Lender (other than any Defaulting Lender); provided further that no such
agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the Issuing Bank hereunder
without the prior written consent of the Administrative Agent or the Issuing Bank, as the case may be (it being understood that
any amendment to Section 2.18 shall require the consent of the Administrative Agent and the Issuing Bank); provided further
that no such agreement shall amend or modify the provisions of Section 2.05 or any letter of credit application and any bilateral
agreement between the Borrower and the Issuing Bank regarding the Issuing Bank’s Issuing Bank Sublimit or the respective
rights and obligations between the Borrower and the Issuing Bank in connection with the issuance of Letters of Credit without the
prior written consent of the Administrative Agent and the Issuing Bank, respectively; provided further that any fee letter,
Swap Agreement or other bilateral agreement between one or more Loan Parties and any Credit Party may be amended, or rights or
privileges thereunder waived, in a writing executed only by the parties thereto. The Administrative Agent may also amend the Commitment
Schedule to reflect assignments entered into pursuant to Section 9.04.


 


(c) The Lenders and the
Issuing Bank hereby irrevocably authorize the Administrative Agent, at its option and in its sole discretion, to release any Liens
granted to the Administrative Agent by the Loan Parties on any Collateral (i) upon the Payment in Full of all Secured Obligations,
and the cash collateralization of all Unliquidated Obligations in a manner satisfactory to each affected Lender, (ii) constituting
property being sold or disposed of if the Loan Party disposing of such property certifies to the Administrative Agent that the
sale or disposition is made in compliance with the terms of this Agreement (and the Administrative Agent may rely conclusively
on any such certificate, without further inquiry), and to the extent that the property being sold or disposed of constitutes 100%
of the Equity Interests of a Subsidiary, the Administrative Agent is authorized to release any Loan Guaranty or Obligation Guaranty
provided by such Subsidiary, (iii) constituting property leased to a Loan Party under a lease which has expired or been terminated
in a transaction permitted under this Agreement, or (iv) as required to effect any sale or other disposition of such Collateral
in connection with any exercise of remedies of the Administrative Agent and the Lenders pursuant to Article VII. Except as provided
in the preceding sentence, the Administrative Agent will not release any Liens on Collateral without the prior written authorization
of the Required Lenders. Any such release shall not in any manner discharge, affect, or impair the Obligations or any Liens
(other than those expressly being released) upon (or obligations of the Loan Parties in respect of) all interests retained by the
Loan Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral. Any execution
and delivery by the Administrative Agent of documents in connection with any such release shall be without recourse to or warranty
by the Administrative Agent.


 






    CREDIT AGREEMENT – Page 100


     


    

 


(d) If, in connection
with any proposed amendment, waiver or consent requiring the consent of “each Lender” or “each Lender affected
thereby,” the consent of the Required Lenders is obtained, but the consent of other necessary Lenders is not obtained (any
such Lender whose consent is necessary but has not been obtained being referred to herein as a “Non-Consenting Lender”),
then the Borrower may elect to replace a Non-Consenting Lender as a Lender party to this Agreement, provided that, concurrently
with such replacement, (i) another bank or other entity which is reasonably satisfactory to the Borrower, the Administrative Agent
and the Issuing Bank shall agree, as of such date, to purchase for cash the Loans and other Obligations due to the Non-Consenting
Lender pursuant to an Assignment and Assumption and to become a Lender for all purposes under this Agreement and to assume all
obligations of the Non-Consenting Lender to be terminated as of such date and to comply with the requirements of clause (b) of
Section 9.04, and (ii) the Borrower shall pay to such Non-Consenting Lender in same day funds on the day of such replacement (1)
all interest, fees and other amounts then accrued but unpaid to such Non-Consenting Lender by the Borrower hereunder to and including
the date of termination, including without limitation payments due to such Non-Consenting Lender under Sections 2.13 and 2.15,
and (2) an amount, if any, equal to the payment which would have been due to such Lender on the day of such replacement under Section
2.14 had the Loans of such Non-Consenting Lender been prepaid on such date rather than sold to the replacement Lender.


 


(e) Notwithstanding anything
to the contrary herein the Administrative Agent may, with the consent of the Borrower only, amend, modify or supplement this Agreement
or any of the other Loan Documents to cure any ambiguity, omission, mistake, defect or inconsistency.


 


SECTION 9.03. Expenses;
Indemnity; Damage Waiver.


 


(a) The Loan Parties,
jointly and severally, shall pay all (i) reasonable out-of-pocket expenses incurred by the Administrative Agent and its Affiliates,
including the reasonable fees, charges and disbursements of Winstead PC and other fees, charges and disbursements of any local
or special counsel for the Administrative Agent, to the extent applicable, in connection with the syndication and distribution
(including, without limitation, via the internet or through an Electronic System) of the credit facilities provided for herein,
the preparation and administration of the Loan Documents and any amendments, modifications or waivers of the provisions of the
Loan Documents (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) reasonable out-of-pocket
expenses incurred by the Issuing Bank in connection with the issuance, amendment, renewal or extension of any Letter of Credit
or any demand for payment thereunder and (iii) out-of-pocket expenses incurred by the Administrative Agent, the Issuing Bank or
any Lender, including the fees, charges and disbursements of any counsel for the Administrative Agent, the Issuing Bank or any
Lender, in connection with the enforcement, collection or protection of its rights in connection with the Loan Documents, including
its rights under this Section, or in connection with the Loans made or Letters of Credit issued hereunder, including all such out-of-pocket
expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit. Expenses being
reimbursed by the Loan Parties under this Section include, without limiting the generality of the foregoing, fees, costs and expenses
incurred in connection with:


 


(A) appraisals
and insurance reviews;


 






    CREDIT AGREEMENT – Page 101


     


    

 


(B) field examinations
and the preparation of Reports based on the fees charged by a third party retained by the Administrative Agent or the internally
allocated fees for each Person employed by the Administrative Agent with respect to each field examination;


 


(C) background
checks regarding senior management and/or key investors, as deemed necessary or appropriate in the sole discretion of the Administrative
Agent;


 


(D) Taxes, fees
and other charges for (i) lien and title searches and (ii) filing financing statements and continuations, and other actions to
perfect, protect, and continue the Administrative Agent’s Liens;


 


(E) sums paid
or incurred to take any action required of any Loan Party under the Loan Documents that such Loan Party fails to pay or take; and


 


(F) forwarding
loan proceeds, collecting checks and other items of payment, and establishing and maintaining the accounts and lock boxes, and
costs and expenses of preserving and protecting the Collateral.


 


All of the foregoing fees, costs and expenses
may be charged to the Borrower as Revolving Loans or to another deposit account, all as described in Section 2.16(c).


 


(b) The Loan Parties,
jointly and severally, shall indemnify the Administrative Agent, the Issuing Bank and each Lender, and each Related Party of any
of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless
from, any and all losses, claims, damages, penalties, incremental taxes, liabilities and related expenses, including the fees,
charges and disbursements of any counsel for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in
connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated
thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions
or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including
any refusal by the Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection
with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or
Release of Hazardous Materials on or from any property owned or operated by a Loan Party or a Subsidiary, or any Environmental
Liability related in any way to a Loan Party or a Subsidiary, (iv) the failure of a Loan Party to deliver to the Administrative
Agent the required receipts or other required documentary evidence with respect to a payment made by such Loan Party for Taxes
pursuant to Section 2.15, or (v) any actual or prospective claim, litigation, investigation or proceeding relating to any of the
foregoing, whether or not such claim, litigation, investigation or proceeding is brought by any Loan Party or their respective
equity holders, Affiliates, creditors or any other third Person and whether based on contract, tort or any other theory and regardless
of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available
to the extent that such losses, claims, damages, penalties, liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee.
This Section 9.03(b) shall not apply with respect to Taxes other than any Taxes that represent losses or damages arising from any
non-Tax claim.


 






    CREDIT AGREEMENT – Page 102


     


    

 


(c) To the extent that
any Loan Party fails to pay any amount required to be paid by it to the Administrative Agent (or any sub-agent thereof), or the
Issuing Bank (or any Related Party of any of the foregoing) under paragraph (a) or (b) of this Section, each Lender severally agrees
to pay to the Administrative Agent, or the Issuing Bank (or any Related Party of any of the foregoing), as the case may be, such
Lender’s Applicable Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is
sought) of such unpaid amount (it being understood that any such payment by the Lenders shall not relieve the Borrower of any default
in the payment thereof); provided that the unreimbursed expense or indemnified loss, claim, damage, penalty, liability or
related expense, as the case may be, was incurred by or asserted against the Administrative Agent, or the Issuing Bank in its capacity
as such.


 


(d) To the extent permitted
by applicable law, no Loan Party shall assert, and each Loan Party hereby waives, any claim against any Indemnitee, (i) for any
damages arising from the use by others of information or other materials obtained through telecommunications, electronic or other
information transmission systems (including the Internet), or (ii) on any theory of liability, for special, indirect, consequential
or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement,
any other Loan Document, or any agreement or instrument contemplated hereby or thereby, the Transactions, any Loan or Letter of
Credit or the use of the proceeds thereof; provided that, nothing in this paragraph (d) shall relieve any Loan Party of
any obligation it may have to indemnify an Indemnitee against special, indirect, consequential or punitive damages asserted against
such Indemnitee by a third party.


 


(e) All amounts due under
this Section shall be payable not later than ten days after written demand therefor.


 


SECTION 9.04. Successors
and Assigns. (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter
of Credit), except that (i) the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without
the prior written consent of each Lender (and any attempted assignment or transfer by the Borrower without such consent shall be
null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance
with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the
parties hereto, their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues
any Letter of Credit), Participants (to the extent provided in paragraph (c) of this Section) and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Agreement.


 


(b) (i)Subject to the
conditions set forth in paragraph (b)(ii) below, any Lender may assign to one or more Persons (other than an Ineligible Institution)
all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, participations
in Letters of Credit and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably
withheld) of:


 


(A) the Borrower,
provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written
notice to the Administrative Agent within five (5) Business Days after having received notice thereof, and provided further
that no consent of the Borrower shall be required for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or,
if an Event of Default has occurred and is continuing, any other assignee;


 


(B) the Administrative
Agent; and


 


(C) the Issuing
Bank.


 






    CREDIT AGREEMENT – Page 103


     


    

 


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


 


(A) except in
the case of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund or an assignment of the entire remaining
amount of the assigning Lender’s Commitment or Loans, the amount of the Commitment or Loans of the assigning Lender subject
to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to
the Administrative Agent) shall not be less than $5,000,000 unless each of the Borrower and the Administrative Agent otherwise
consent, provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing;


 


(B) 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;


 


(C) the parties
to each assignment shall execute and deliver to the Administrative Agent (x) an Assignment and Assumption or (y) to the extent
applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative
Agent and the parties to the Assignment and Assumption are participants, together with a processing and recordation fee of $3,500;
and


 


(D) the assignee,
if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates
one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the
Borrower, the other Loan Parties and their Related Parties or their respective securities) will be made available and who may receive
such information in accordance with the assignee’s compliance procedures and applicable laws, including federal and state
securities laws.


 


For the purposes
of this Section 9.04(b), the terms “Approved Fund” and “Ineligible Institution” have the
following meanings:


 


“Approved
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 of its business and that is administered or managed by (a) a Lender,
(b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.


 


“Ineligible
Institution” means a (a) natural person, (b) a Defaulting Lender or its Parent, (c) holding company, investment
vehicle or trust for, or owned and operated for the primary benefit of, a natural person or relative(s) thereof; provided
that, such holding company, investment vehicle or trust shall not constitute an Ineligible Institution if it (x) has not been established
for the primary purpose of acquiring any Loans or Commitments, (y) is managed by a professional advisor, who is not such natural
person or a relative thereof, having significant experience in the business of making or purchasing commercial loans, and (z) has
assets greater than $25,000,000 and a significant part of its activities consist of making or purchasing commercial loans and similar
extensions of credit in the ordinary course of its business; provided that upon the occurrence and during the continuance
of an Event of Default, any Person (other than a Lender) shall be an Ineligible Institution if after giving effect to any proposed
assignment to such Person, such Person would hold more than 25% of the then outstanding Aggregate Credit Exposure or Commitments,
as the case may be or (d) a Loan Party or a Subsidiary or other Affiliate of a Loan Party.


 






    CREDIT AGREEMENT – Page 104


     


    

 


(iii) Subject
to acceptance and recording thereof pursuant to paragraph (b)(iv) of this Section, from and after the effective date specified
in each Assignment and Assumption, the assignee thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder
shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement
(and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this
Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 2.13,
2.14, 2.15 and 9.03). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply
with this Section 9.04 shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights
and obligations in accordance with paragraph (c) of this Section.


 


(iv) The
Administrative Agent, acting for this purpose as a non-fiduciary agent of the Borrower, shall maintain at one of its offices a
copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders,
and the Commitment of, and principal amount of the Loans and LC Disbursements owing to, each Lender pursuant to the terms hereof
from time to time (the “Register”). The entries in the Register shall be conclusive, and the Borrower, the Administrative
Agent, the Issuing Bank and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available
for inspection by the Borrower, the Issuing Bank and any Lender, at any reasonable time and from time to time upon reasonable prior
notice.


 


(v) Upon
its receipt of (x) a duly completed Assignment and Assumption executed by an assigning Lender and an assignee or (y) to the extent
applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative
Agent and the parties to the Assignment and Assumption are participants, the assignee’s completed Administrative Questionnaire
(unless the assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph (b)
of this Section and any written consent to such assignment required by paragraph (b) of this Section, the Administrative Agent
shall accept such Assignment and Assumption and record the information contained therein in the Register; provided that
if either the assigning Lender or the assignee shall have failed to make any payment required to be made by it pursuant to Section
2.04(d) or (e), 2.05(b), 2.16(d) or 9.03(c), the Administrative Agent shall have no obligation to accept such Assignment and Assumption
and record the information therein in the Register unless and until such payment shall have been made in full, together with all
accrued interest thereon. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register
as provided in this paragraph.


 






    CREDIT AGREEMENT – Page 105


     


    

 


(c) Any Lender may, without
the consent of the Borrower, the Administrative Agent or the Issuing Bank, sell participations to one or more banks or other entities
(a “Participant”) other than an Ineligible Institution in all or a portion of such Lender’s rights and
obligations under this Agreement (including all or a portion of its Commitment and the Loans owing to it); provided that
(i) such Lender’s obligations under this Agreement shall remain unchanged; (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations; and (iii) the Borrower, the Administrative
Agent, the Issuing Bank and the other Lenders shall continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such
Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in the first
proviso to Section 9.02(b) that affects such Participant. The Borrower agrees that each Participant shall be entitled to the
benefits of Sections 2.13, 2.14 and 2.15 (subject to the requirements and limitations therein, including the requirements
under Sections 2.15(f) and (g) (it being understood that the documentation required under Section 2.15(f) shall be delivered
to the participating Lender and the information and documentation required under Section 2.15(g) will be delivered to the Borrower
and the Administrative Agent)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to
paragraph (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Sections 2.16
and 2.17 as if it were an assignee under paragraph (b) of this Section; and (B) shall not be entitled to receive any greater
payment under Sections 2.14 or 2.15 with respect to any participation than its participating Lender would have been entitled to
receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the
Participant acquired the applicable participation.


 


Each Lender that sells
a participation agrees, at the Borrower’s request and expense, to use reasonable efforts to cooperate with the Borrower to
effectuate the provisions of Section 2.17(b) with respect to any Participant. To the extent permitted by law, each Participant
also shall be entitled to the benefits of Section 9.08 as though it were a Lender, provided such Participant agrees to be
subject to Section 2.17(d) as though it were a Lender. Each Lender that sells a participation shall, acting solely for this
purpose as an agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal
amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under this Agreement or any
other Loan Document (the “Participant Register”); provided that no Lender shall have any obligation to
disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating
to a Participant’s interest in any Commitments, Loans, Letters of Credit or its other obligations under this Agreement or
any other 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 Administrative Agent (in its capacity as Administrative Agent) shall
have no responsibility for maintaining a Participant Register.


 


(d) Any Lender may at
any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of
such Lender, including without limitation any pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section
shall not apply to any such pledge or assignment of a security interest; provided that no such pledge or assignment of a
security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such
Lender as a party hereto.


 


SECTION 9.05. Survival.
All covenants, agreements, representations and warranties made by the Loan Parties in the Loan Documents and in the certificates
or other instruments 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 the Administrative Agent, the Issuing Bank or any Lender may have had notice or knowledge of any
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 outstanding and unpaid or any Letter of Credit is outstanding and so long as the Commitments have not expired or terminated.
The provisions of Sections 2.13, 2.14, 2.16 and 9.03 and Article VIII shall survive and remain in full force and effect regardless
of the consummation of the transactions contemplated hereby, the repayment of the Loans, the expiration or termination of the Letters
of Credit and the Commitments or the termination of this Agreement or any other Loan Document or any provision hereof or thereof.


 






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SECTION 9.06. Counterparts;
Integration; Effectiveness; Electronic Execution. (a) This Agreement and each other Loan Document may be executed in counterparts
(and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement, the other Loan Documents and any separate letter agreements
with respect to (i) fees payable to the Administrative Agent and (ii) increases or reductions of the Issuing Bank Sublimit of the
Issuing Bank constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter hereof. Except as provided in Section 4.01, this
Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent
shall have received counterparts hereof which, when taken together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.


 


(b) Delivery of an executed
counterpart of a signature page of this Agreement or any other Loan Document by telecopy, emailed pdf. or any other electronic
means that reproduces an image of the actual executed signature page shall be effective as delivery of a manually executed counterpart
of this Agreement or such other Loan Document. The words “execution,” “signed,” “signature,”
“delivery,” and words of like import in or relating to any document to be signed in connection with this Agreement,
the other Loan Documents and the transactions contemplated hereby or thereby shall be deemed to include Electronic Signatures,
deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability
as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be,
to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce
Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic
Transactions Act; provided that nothing herein shall require the Administrative Agent to accept electronic signatures in
any form or format without its prior written consent.


 


SECTION 9.07. Severability.
Any provision of any Loan Document held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability
of the remaining provisions thereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate
such provision in any other jurisdiction.


 






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SECTION 9.08. Right
of Setoff. If an Event of Default shall have occurred and be continuing, each Lender, each Issuing Bank, and each of their
respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off
and apply any and all deposits (general or special, time or demand, provisional or final) at any time held, and other obligations
at any time owing, by such Lender, such Issuing Bank or any such Affiliate, to or for the credit or the account of any Loan Party
against any and all of the Secured Obligations owing to such Lender or such Issuing Bank or their respective Affiliates, irrespective
of whether or not such Lender, Issuing Bank or Affiliate shall have made any demand under this Agreement or any other Loan Document
and although such obligations of the Loan Parties may be contingent or unmatured or are owed to a branch office or Affiliate of
such Lender or such Issuing Bank different from the branch office or Affiliate holding such deposit or obligated on such indebtedness;
provided that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall
be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.18
and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the
benefit of the Administrative Agent, the Issuing Banks, and the Lenders, and (y) the Defaulting Lender shall provide promptly to
the Administrative Agent a statement describing in reasonable detail the Secured Obligations owing to such Defaulting Lender as
to which it exercised such right of setoff. The applicable Lender, the Issuing Bank or such Affiliate shall notify the Borrower
and the Administrative Agent of such setoff or application; provided that the failure to give such notice shall not affect the
validity of such setoff or application under this Section. The rights of each Lender, each Issuing Bank and their respective Affiliates
under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender, such Issuing
Bank or their respective Affiliates may have.


 


SECTION 9.09. Governing
Law; Jurisdiction; Consent to Service of Process.


 


(a) The Loan Documents
(other than those containing a contrary express choice of law provision) shall be governed by and construed in accordance with
the internal laws of the State of New York, but giving effect to federal laws applicable to national banks.


 


(b) Each Loan Party hereby
irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of any U.S. federal or New
York state court sitting in New York, New York in any action or proceeding arising out of or relating to any Loan Documents, or
for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard and determined in such state court or, to the extent permitted
by law, in such federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in
this Agreement or any other Loan Document shall affect any right that the Administrative Agent, the Issuing Bank or any Lender
may otherwise have to bring any action or proceeding relating to this Agreement or any other Loan Document against any Loan Party
or its properties in the courts of any jurisdiction.


 


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


 


(d) Each party to this
Agreement irrevocably consents to service of process in the manner provided for notices in Section 9.01. Nothing in this Agreement
or any other Loan Document will affect the right of any party to this Agreement to serve process in any other manner permitted
by law.


 


SECTION 9.10. WAIVER
OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO
A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE OR OTHER AGENT (INCLUDING ANY ATTORNEY) OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS
IN THIS SECTION.


 






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SECTION 9.11. Headings.
Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.


 


SECTION 9.12. Confidentiality.
Each of the Administrative Agent, the Issuing Bank and the Lenders agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its and its Affiliates’ directors, officers, employees
and agents, including accountants, legal counsel and other advisors (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential),
(b) to the extent requested by any Governmental Authority (including any self-regulatory authority, such as the National Association
of Insurance Commissioners), (c) to the extent required by any Requirement of Law or by any subpoena or similar legal process,
(d) to any other party to this Agreement, (e) in connection with the exercise of any remedies hereunder or under any
other Loan Document or any suit, action or proceeding relating to this Agreement or any other Loan Document or the enforcement
of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this
Section, to (x) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations
under this Agreement or (y) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating
to the Loan Parties and their obligations, (g) with the consent of the Borrower, (h) to any Person providing a Guarantee
of all or any portion of the Secured Obligations, or (i) to the extent such Information (x) becomes publicly available
other than as a result of a breach of this Section or (y) becomes available to the Administrative Agent, the Issuing Bank
or any Lender on a non-confidential basis from a source other than the Borrower. For the purposes of this Section, “Information”
means all information received from the Borrower relating to the Borrower, any Loan Party or its respective business, other than
any such information that is available to the Administrative Agent, the Issuing Bank or any Lender on a non-confidential basis
prior to disclosure by the Borrower and other than information pertaining to this Agreement provided by arrangers to data service
providers, including league table providers, that serve the lending industry; provided that, in the case of information
received from the Borrower after the date hereof, such information is clearly identified at the time of delivery as confidential.
Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information
as such Person would accord to its own confidential information.


 


SECTION 9.13. Several
Obligations; Nonreliance; Violation of Law. The respective obligations of the Lenders hereunder are several and not joint and
the failure of any Lender to make any Loan or perform any of its obligations hereunder shall not relieve any other Lender from
any of its obligations hereunder. Each Lender hereby represents that it is not relying on or looking to any margin stock (as defined
in Regulation U of the Board) for the repayment of the Borrowings provided for herein. Anything contained in this Agreement to
the contrary notwithstanding, neither the Issuing Bank nor any Lender shall be obligated to extend credit to the Borrower in violation
of any Requirement of Law.


 


SECTION 9.14. PATRIOT
Act. Each Lender that is subject to the requirements of the PATRIOT Act hereby notifies each Loan Party that pursuant to the
requirements of the PATRIOT Act, it is required to obtain, verify and record information that identifies such Loan Party, which
information includes the name and address of such Loan Party and other information that will allow such Lender to identify such
Loan Party in accordance with the PATRIOT Act.


 






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SECTION 9.15. Disclosure.
Each Loan Party, each Lender and the Issuing Bank hereby acknowledges and agrees that the Administrative Agent and/or its Affiliates
from time to time may hold investments in, make other loans to or have other relationships with, any of the Loan Parties and their
respective Affiliates.


 


SECTION 9.16. Appointment
for Perfection. Each Lender hereby appoints each other Lender as its agent for the purpose of perfecting Liens, for the benefit
of the Administrative Agent and the Secured Parties, in assets which, in accordance with Article 9 of the UCC or any other applicable
law can be perfected only by possession or control. Should any Lender (other than the Administrative Agent) obtain possession or
control of any such Collateral, such Lender shall notify the Administrative Agent thereof, and, promptly upon the Administrative
Agent’s request therefor shall deliver such Collateral to the Administrative Agent or otherwise deal with such Collateral
in accordance with the Administrative Agent’s instructions.


 


SECTION 9.17. Interest
Rate Limitation. Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which are treated as interest on such Loan under applicable law (collectively
the “Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be contracted
for, charged, taken, received or reserved by the Lender holding such Loan in accordance with applicable law, the rate of interest
payable in respect of such Loan hereunder, together with all Charges payable in respect thereof, shall be limited to the Maximum
Rate and, to the extent lawful, the interest and Charges that would have been payable in respect of such Loan but were not payable
as a result of the operation of this Section shall be cumulated and the interest and Charges payable to such Lender in respect
of other Loans or periods shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together with
interest thereon at the Federal Funds Effective Rate to the date of repayment, shall have been received by such Lender.


 


SECTION 9.18. No
Fiduciary Duty, etc. The Borrower acknowledges and agrees, and acknowledges its subsidiaries’ understanding, that no
Credit Party will have any obligations except those obligations expressly set forth herein and in the other Loan Documents and
each Credit Party is acting solely in the capacity of an arm’s length contractual counterparty to the Borrower with respect
to the Loan Documents and the transaction contemplated therein and not as a financial advisor or a fiduciary to, or an agent of,
the Borrower or any other person. The Borrower agrees that it will not assert any claim against any Credit Party based on an alleged
breach of fiduciary duty by such Credit Party in connection with this Agreement and the transactions contemplated hereby. Additionally,
the Borrower acknowledges and agrees that no Credit Party is advising the Borrower as to any legal, tax, investment, accounting,
regulatory or any other matters in any jurisdiction. The Borrower shall consult with its own advisors concerning such matters and
shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the
Credit Parties shall have no responsibility or liability to the Borrower with respect thereto.


 






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The Borrower further
acknowledges and agrees, and acknowledges its subsidiaries’ understanding, that each Credit Party, together with its affiliates,
is a full service securities or banking firm engaged in securities trading and brokerage activities as well as providing investment
banking and other financial services. In the ordinary course of business, any Credit Party may provide investment banking and other
financial services to, and/or acquire, hold or sell, for its own accounts and the accounts of customers, equity, debt and other
securities and financial instruments (including bank loans and other obligations) of, the Borrower and other companies with which
the Borrower may have commercial or other relationships. With respect to any securities and/or financial instruments so held by
any Credit Party or any of its customers, all rights in respect of such securities and financial instruments, including any voting
rights, will be exercised by the holder of the rights, in its sole discretion.


 


In addition, the Borrower
acknowledges and agrees, and acknowledges its subsidiaries’ understanding, that each Credit Party and its affiliates may
be providing debt financing, equity capital or other services (including financial advisory services) to other companies in respect
of which the Borrower may have conflicting interests regarding the transactions described herein and otherwise. No Credit Party
will use confidential information obtained from the Borrower by virtue of the transactions contemplated by the Loan Documents or
its other relationships with the Borrower in connection with the performance by such Credit Party of services for other companies,
and no Credit Party will furnish any such information to other companies. The Borrower also acknowledges that no Credit Party has
any obligation to use in connection with the transactions contemplated by the Loan Documents, or to furnish to the Borrower, confidential
information obtained from other companies.


 


SECTION 9.19. Marketing
Consent. The Borrower hereby authorizes Chase and its affiliates, at their respective sole expense, but without any prior approval
by the Borrower, to publish such tombstones and give such other publicity to this Agreement as each may from time to time determine
in its sole discretion. The foregoing authorization shall remain in effect unless the Borrower notifies Chase in writing that such
authorization is revoked.


 


SECTION 9.20. 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 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
entity, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments
of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other
Loan Document; or


 


(iii) the
variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution
Authority.


 


SECTION 9.21. Acknowledgement
Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for
Swap Agreements or any other agreement or instrument that is a QFC (such support “QFC Credit Support” and each
such QFC a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power
of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street
Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”)
in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents
and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or
any other state of the United States):


 






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In the event a Covered
Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and
obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or
such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under
the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights
in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a
BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under
the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such
Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special
Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the
United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect
to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit
Support.


 


ARTICLE X



Loan Guaranty


 


SECTION 10.01. Guaranty.
Each Loan Guarantor (other than those that have delivered a separate Obligation Guaranty) hereby agrees that it is jointly and
severally liable for, and, as a primary obligor and not merely as surety, absolutely, unconditionally and irrevocably guarantees
to the Secured Parties, the prompt payment when due, whether at stated maturity, upon acceleration or otherwise, and at all times
thereafter, of the Secured Obligations and all costs and expenses including, without limitation, all court costs and reasonable
attorneys’ and paralegals’ fees (including allocated costs of in-house counsel and paralegals) and expenses paid or
incurred by the Administrative Agent, the Issuing Bank and the Lenders in endeavoring to collect all or any part of the Secured
Obligations from, or in prosecuting any action against, the Borrower, any Loan Guarantor or any other guarantor of all or any part
of the Secured Obligations (such costs and expenses, together with the Secured Obligations, collectively the “Guaranteed
Obligations”); provided, however, that the definition of “Guaranteed Obligations” shall not create
any guarantee by any Loan Guarantor of (or grant of security interest by any Loan Guarantor to support, as applicable) any Excluded
Swap Obligations of such Loan Guarantor for purposes of determining any obligations of any Loan Guarantor. Each Loan Guarantor
further agrees that the Guaranteed Obligations may be extended or renewed in whole or in part without notice to or further assent
from it, and that it remains bound upon its guarantee notwithstanding any such extension or renewal. All terms of this Loan Guaranty
apply to and may be enforced by or on behalf of any domestic or foreign branch or Affiliate of any Lender that extended any portion
of the Guaranteed Obligations.


 


SECTION 10.02. Guaranty
of Payment. This Loan Guaranty is a guaranty of payment and not of collection. Each Loan Guarantor waives any right to require
the Administrative Agent, the Issuing Bank or any Lender to sue the Borrower, any Loan Guarantor, any other guarantor of, or any
other Person obligated for all or any part of the Guaranteed Obligations (each, an “Obligated Party”), or otherwise
to enforce its payment against any collateral securing all or any part of the Guaranteed Obligations.


 






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SECTION 10.03. No
Discharge or Diminishment of Loan Guaranty.


 


(a) Except as otherwise
provided for herein, the obligations of each Loan Guarantor hereunder are unconditional and absolute and not subject to any reduction,
limitation, impairment or termination for any reason (other than the Payment in Full of the Guaranteed Obligations), including:
(i) any claim of waiver, release, extension, renewal, settlement, surrender, alteration, or compromise of any of the Guaranteed
Obligations, by operation of law or otherwise; (ii) any change in the corporate existence, structure or ownership of the Borrower
or any other Obligated Party liable for any of the Guaranteed Obligations; (iii) any insolvency, bankruptcy, reorganization or
other similar proceeding affecting any Obligated Party, or their assets or any resulting release or discharge of any obligation
of any Obligated Party; or (iv) the existence of any claim, setoff or other rights which any Loan Guarantor may have at any time
against any Obligated Party, the Administrative Agent, the Issuing Bank, any Lender, or any other Person, whether in connection
herewith or in any unrelated transactions.


 


(b) The obligations of
each Loan Guarantor hereunder are not subject to any defense or setoff, counterclaim, recoupment, or termination whatsoever by
reason of the invalidity, illegality, or unenforceability of any of the Guaranteed Obligations or otherwise, or any provision of
applicable law or regulation purporting to prohibit payment by any Obligated Party, of the Guaranteed Obligations or any part thereof.


 


(c) Further, the obligations
of any Loan Guarantor hereunder are not discharged or impaired or otherwise affected by: (i) the failure of the Administrative
Agent, the Issuing Bank or any Lender to assert any claim or demand or to enforce any remedy with respect to all or any part of
the Guaranteed Obligations; (ii) any waiver or modification of or supplement to any provision of any agreement relating to the
Guaranteed Obligations; (iii) any release, non-perfection, or invalidity of any indirect or direct security for the obligations
of the Borrower for all or any part of the Guaranteed Obligations or any obligations of any other Obligated Party liable for any
of the Guaranteed Obligations; (iv) any action or failure to act by the Administrative Agent, the Issuing Bank or any Lender with
respect to any collateral securing any part of the Guaranteed Obligations; or (v) any default, failure or delay, willful or otherwise,
in the payment or performance of any of the Guaranteed Obligations, or any other circumstance, act, omission or delay that might
in any manner or to any extent vary the risk of such Loan Guarantor or that would otherwise operate as a discharge of any Loan
Guarantor as a matter of law or equity (other than the Payment in Full of the Guaranteed Obligations).


 


SECTION 10.04. Defenses
Waived. To the fullest extent permitted by applicable law, each Loan Guarantor hereby waives any defense based on or arising
out of any defense of the Borrower or any Loan Guarantor or the unenforceability of all or any part of the Guaranteed Obligations
from any cause, or the cessation from any cause of the liability of the Borrower, any Loan Guarantor or any other Obligated Party,
other than the Payment in Full of the Guaranteed Obligations. Without limiting the generality of the foregoing, each Loan Guarantor
irrevocably waives acceptance hereof, presentment, demand, protest and, to the fullest extent permitted by law, any notice not
provided for herein, as well as any requirement that at any time any action be taken by any Person against any Obligated Party,
or any other Person. Each Loan Guarantor confirms that it is not a surety under any state law and shall not raise any such law
as a defense to its obligations hereunder. The Administrative Agent may, at its election, foreclose on any Collateral held by it
by one or more judicial or nonjudicial sales, accept an assignment of any such Collateral in lieu of foreclosure or otherwise act
or fail to act with respect to any collateral securing all or a part of the Guaranteed Obligations, compromise or adjust any part
of the Guaranteed Obligations, make any other accommodation with any Obligated Party or exercise any other right or remedy available
to it against any Obligated Party, without affecting or impairing in any way the liability of such Loan Guarantor under this Loan
Guaranty, except to the extent the Guaranteed Obligations have been Paid in Full. To the fullest extent permitted by applicable
law, each Loan Guarantor waives any defense arising out of any such election even though that election may operate, pursuant to
applicable law, to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Loan Guarantor
against any Obligated Party or any security.


 






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SECTION 10.05. Rights
of Subrogation. No Loan Guarantor will assert any right, claim or cause of action, including, without limitation, a claim of
subrogation, contribution or indemnification that it has against any Obligated Party, or any collateral, until the Loan Parties
and the Loan Guarantors have fully performed all their obligations to the Administrative Agent, the Issuing Bank and the Lenders.


 


SECTION 10.06. Reinstatement;
Stay of Acceleration. If at any time any payment of any portion of the Guaranteed Obligations (including a payment effected
through exercise of a right of setoff) is rescinded, or must otherwise be restored or returned upon the insolvency, bankruptcy
or reorganization of the Borrower or otherwise (including pursuant to any settlement entered into by a Secured Party in its discretion),
each Loan Guarantor’s obligations under this Loan Guaranty with respect to that payment shall be reinstated at such time
as though the payment had not been made and whether or not the Administrative Agent, the Issuing Bank and the Lenders are in possession
of this Loan Guaranty. If acceleration of the time for payment of any of the Guaranteed Obligations is stayed upon the insolvency,
bankruptcy or reorganization of the Borrower, all such amounts otherwise subject to acceleration under the terms of any agreement
relating to the Guaranteed Obligations shall nonetheless be payable by the Loan Guarantors forthwith on demand by the Administrative
Agent.


 


SECTION 10.07. Information.
Each Loan Guarantor assumes all responsibility for being and keeping itself informed of the Borrower’s financial condition
and assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope
and extent of the risks that each Loan Guarantor assumes and incurs under this Loan Guaranty, and agrees that none of the Administrative
Agent, the Issuing Bank or any Lender shall have any duty to advise any Loan Guarantor of information known to it regarding those
circumstances or risks.


 


SECTION 10.08. Termination.
Each of the Lenders and the Issuing Bank may continue to make loans or extend credit to the Borrower based on this Loan Guaranty
until five (5) days after it receives written notice of termination from any Loan Guarantor. Notwithstanding receipt of any such
notice, each Loan Guarantor will continue to be liable to the Lenders for any Guaranteed Obligations created, assumed or committed
to prior to the fifth day after receipt of the notice, and all subsequent renewals, extensions, modifications and amendments with
respect to, or substitutions for, all or any part of such Guaranteed Obligations. Nothing in this Section 10.08 shall be deemed
to constitute a waiver of, or eliminate, limit, reduce or otherwise impair any rights or remedies the Administrative Agent or any
Lender may have in respect of, any Default or Event of Default that shall exist under Article VII hereof as a result of any such
notice of termination.


 


SECTION 10.09. Taxes.
Each payment of the Guaranteed Obligations will be made by each Loan Guarantor without withholding for any Taxes, unless such withholding
is required by law. If any Loan Guarantor determines, in its sole discretion exercised in good faith, that it is so required to
withhold Taxes, then such Loan Guarantor may so withhold and shall timely pay the full amount of withheld Taxes to the relevant
Governmental Authority in accordance with applicable law. If such Taxes are Indemnified Taxes, then the amount payable by such
Loan Guarantor shall be increased as necessary so that, net of such withholding (including such withholding applicable to additional
amounts payable under this Section), the Administrative Agent, Lender or Issuing Bank (as the case may be) receives the amount
it would have received had no such withholding been made.


 






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SECTION 10.10. Maximum
Liability. Notwithstanding any other provision of this Loan Guaranty, the amount guaranteed by each Loan Guarantor hereunder
shall be limited to the extent, if any, required so that its obligations hereunder shall not be subject to avoidance under Section
548 of the Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act, Uniform
Voidable Transaction Act or similar statute or common law. In determining the limitations, if any, on the amount of any Loan Guarantor’s
obligations hereunder pursuant to the preceding sentence, it is the intention of the parties hereto that any rights of subrogation,
indemnification or contribution which such Loan Guarantor may have under this Loan Guaranty, any other agreement or applicable
law shall be taken into account.


 


SECTION 10.11. Contribution.


 


(a) To the extent that
any Loan Guarantor shall make a payment under this Loan Guaranty (a “Guarantor Payment”) which, taking into
account all other Guarantor Payments then previously or concurrently made by any other Loan Guarantor, exceeds the amount which
otherwise would have been paid by or attributable to such Loan Guarantor if each Loan Guarantor had paid the aggregate Guaranteed
Obligations satisfied by such Guarantor Payment in the same proportion as such Loan Guarantor’s “Allocable Amount”
(as defined below) (as determined immediately prior to such Guarantor Payment) bore to the aggregate Allocable Amounts of each
of the Loan Guarantors as determined immediately prior to the making of such Guarantor Payment, then, following indefeasible payment
in full in cash of the Guarantor Payment, the Payment in Full of the Guaranteed Obligations and the termination of this Agreement,
such Loan Guarantor shall be entitled to receive contribution and indemnification payments from, and be reimbursed by, each other
Loan Guarantor for the amount of such excess, pro rata based upon their respective Allocable Amounts in effect immediately prior
to such Guarantor Payment.


 


(b) As of any date of
determination, the “Allocable Amount” of any Loan Guarantor shall be equal to the excess of the fair saleable
value of the property of such Loan Guarantor over the total liabilities of such Loan Guarantor (including the maximum amount reasonably
expected to become due in respect of contingent liabilities, calculated, without duplication, assuming each other Loan Guarantor
that is also liable for such contingent liability pays its ratable share thereof), giving effect to all payments made by other
Loan Guarantors as of such date in a manner to maximize the amount of such contributions.


 


(c) This Section 10.11
is intended only to define the relative rights of the Loan Guarantors, and nothing set forth in this Section 10.11 is intended
to or shall impair the obligations of the Loan Guarantors, jointly and severally, to pay any amounts as and when the same shall
become due and payable in accordance with the terms of this Loan Guaranty.


 


(d) The parties hereto
acknowledge that the rights of contribution and indemnification hereunder shall constitute assets of the Loan Guarantor or Loan
Guarantors to which such contribution and indemnification is owing.


 


(e) The rights of the
indemnifying Loan Guarantors against other Loan Guarantors under this Section 10.11 shall be exercisable upon the Payment in Full
of the Guaranteed Obligations and the termination of this Agreement.


 


SECTION 10.12. Liability
Cumulative. The liability of each Loan Party as a Loan Guarantor under this Article X is in addition to and shall be cumulative
with all liabilities of each Loan Party to the Administrative Agent, the Issuing Bank and the Lenders under this Agreement and
the other Loan Documents to which such Loan Party is a party or in respect of any obligations or liabilities of the other Loan
Parties, without any limitation as to amount, unless the instrument or agreement evidencing or creating such other liability specifically
provides to the contrary.


 






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SECTION 10.13. Keepwell.
Each Qualified ECP Guarantor hereby jointly and severally absolutely, unconditionally and irrevocably undertakes to provide such
funds or other support as may be needed from time to time by each other Loan Party to honor all of its obligations under this Guarantee
in respect of a Swap Obligation (provided, however, that each Qualified ECP Guarantor shall only be liable under this Section
10.13 for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Section
10.13 or otherwise under this Loan Guaranty voidable under applicable law relating to fraudulent conveyance or fraudulent transfer,
and not for any greater amount). Except as otherwise provided herein, the obligations of each Qualified ECP Guarantor under this
Section 10.13 shall remain in full force and effect until the termination of all Swap Obligations. Each Qualified ECP Guarantor
intends that this Section 10.13 constitute, and this Section 10.13 shall be deemed to constitute, a “keepwell, support, or
other agreement” for the benefit of each other Loan Party for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange
Act.


 


[Signature Page Follows]


 




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


 


	BORROWER:	FIESTA RESTAURANT GROUP, INC.,
	 	a Delaware corporation
	 	 
	 	By:	                          
	 	Name: 	 
	 	Title:	 
	 	 
	GUARANTORS:	CABANA BEVERAGES, INC.,
	 	a Texas corporation
	 	 
	 	By:	 
	 	Name:	 
	 	Title:	 
	 	 
	 	CABANA BEVCO LLC,
	 	a Texas limited liability company
	 	 
	 	By:	 
	 	Name:	 
	 	Title:	 
	 	 
	 	CABANA GRILL, INC.,
	 	a Delaware corporation
	 	 
	 	By:	 
	 	Name:	 
	 	Title:	 
	 	 
	 	POLLO TROPICAL MANAGEMENT, LLC,
	 	a Texas limited liability company
	 	 
	 	By:	 
	 	Name:	 
	 	Title:	 


 




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	 	POLLO TROPICAL BEVERAGES, LLC,
	 	a Texas limited liability company
	 	 
	 	By:	                             
	 	Name:	 
	 	Title:	 
	 	 
	 	POLLO FRANCHISE, INC.,
	 	a Florida corporation
	 	 
	 	By:	 
	 	Name:	 
	 	Title:	 
	 	 
	 	POLLO OPERATIONS, INC.,
	 	a Florida corporation
	 	 
	 	By:	 
	 	Name:	 
	 	Title:	 
	 	 
	 	TACO CABANA, INC.,
	 	a Delaware corporation
	 	 
	 	By:	 
	 	Name:	 
	 	Title:	 
	 	 
	 	TP ACQUISITION CORP.,
	 	a Texas corporation
	 	 
	 	By:	 
	 	Name: 	 
	 	Title:	 


 




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	 	TC BEVCO LLC,
	 	a Texas limited liability company
	 	 
	 	By:	 
	 	Name: 	 
	 	Title:	 
	 	 
	 	T. C. MANAGEMENT, INC.,
	 	a Delaware corporation
	 	 
	 	By:	 
	 	Name:	 
	 	Title:	 
	 	 
	 	TPAQ HOLDING CORPORATION,
	 	a Delaware corporation
	 	 
	 	By:	 
	 	Name:	 
	 	Title:	 
	 	 
	 	TEXAS TACO CABANA, L. P.,
	 	a Texas limited partnership
	 	 
	 	By:	T. C. Management, Inc.,
	 	 	its general partner
	 	 
	 	 	By:	                          
	 	 	Name: 	 
	 	 	Title:	 


 




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	 	JPMORGAN CHASE BANK, N. A., individually, and as Administrative Agent and Issuing Bank
	 	 
	 	By:	 
	 	Name: 	                  
	 	Title:	 


 




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	 	[OTHER BANKS]
	 	 
	 	By:	                  
	 	Name: 	 
	 	Title:	 


 




 


CREDIT AGREEMENT – Page 5